United States v. Cano

Citation973 F.3d 966 (Mem)
Decision Date02 September 2020
Docket NumberNo. 17-50151,17-50151
Parties UNITED STATES of America, Plaintiff-Appellee, v. Miguel Angel CANO, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
ORDER

The panel judges have voted to deny Plaintiff-Appellee's petition for rehearing. Judge Graber voted to deny the petition for rehearing en banc, and Judges Bybee and Harpool recommended denying the petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc. A judge of the court requested a vote on en banc rehearing. The matter failed to receive a majority of votes of non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35.

Plaintiff-Appellee's petition for rehearing and petition for rehearing en banc, filed January 2, 2020, are DENIED .

BENNETT, Circuit Judge, with whom CALLAHAN, M. SMITH, R. NELSON, BADE and VANDYKE, Circuit Judges, join, dissenting from the denial of rehearing en banc:

In 2016, Defendant Miguel Cano entered the United States from Mexico, and a routine search of his truck turned up 31 pounds of cocaine hidden in his spare tire. As the panel correctly noted, border officials "had reason to suspect that Cano's [cell] phone would contain evidence leading to additional drugs." United States v. Cano , 934 F.3d 1002, 1021 (9th Cir. 2019).1 And so, those border officials—objectively relying on decisions from the Supreme Court and a recent en banc decision from our court—searched the phone. Unsurprisingly they found more evidence of Cano's guilt. Despite an unbroken line of cases authorizing the border search here, the panel reversed Cano's convictions because in their view, reasonable suspicion of criminal activity cannot justify a forensic search of Cano's phone. Instead, the panel held that absent a warrant, border officials, with reasonable suspicion or probable cause of other criminal activity, could only forensically search a cell phone to see if it contained contraband. And since effectively the only contraband a cell phone can contain is child pornography,2 the only permissible forensic search at the border is one for child pornography. Even then, only if agents have reasonable suspicion the phone contains child pornography. The government has referred to the panel's decision as an "outlier."3 It is that, but far more. The Supreme Court has told us that a border search is reasonable simply because it takes place at the border. The Court has also instructed that the sovereign's power at the border is at its "zenith." The limits the panel placed on border searches ignores the Court's teachings and, as a result, makes our borders far more porous and far less safe.

Border officials in our circuit are now constitutionally barred from forensically searching a traveler's cell phone at the border, even if armed with reasonable suspicion the phone contains evidence of terrorist acts the traveler is about to commit in the United States; evidence the traveler is entering the United States under a false name; evidence of contemporaneous smuggling activity by the traveler; evidence of other border related crimes; or evidence of non-child pornography contraband.4 This is the sovereign power at its nadir, not its zenith.

We should have taken this case en banc to correct the panel's errors, and I respectfully dissent from our failure to do so.

I.

On July 25, 2016, Miguel Cano entered the United States from Tijuana for the seventh time that summer.5 Cano , 934 F.3d at 1008. During a secondary inspection, a narcotics dog alerted near the spare tire of Cano's truck. Id. A Customs and Border Protection (CBP) officer discovered about 31 pounds of cocaine in 14 vacuum-sealed packages inside the spare tire. Id.

CBP officers arrested Cano and seized his cell phone. Id. They then called Homeland Security Investigations, which dispatched two agents to investigate. Id. The agents manually searched Cano's phone and questioned Cano after he waived his Miranda rights. Id. Cano told them that he moved to Tijuana to look for work in San Diego because work was slow in Los Angeles, and he was going to a carpet store in Chula Vista to seek work. Id. He also explained that he deleted his text messages before crossing the border on his cousin's advice "just in case" he was pulled over by Mexican police. Id. One of the agents conducted a second manual search of the phone during the interview, wrote down some of the phone numbers in the phone's call log, noted that two new text messages had arrived after Cano crossed the border, and took a picture of those messages. Id. The agent then used Cellebrite software to download data from the phone.6 Agents reviewed the download after the interview and saw a list of Cano's calls. Id. at 1009. None of the numbers Cano called "corresponded to carpeting stores in San Diego." Id.

Cano was indicted for importing cocaine and moved to suppress the evidence obtained from the warrantless searches of his phone at the border. Id. The district court denied the motion, finding the manual search was "clearly permissible" and "the agents had reasonable suspicion and even probable cause" to perform the "logical download." Cano , 222 F. Supp. 3d at 882. The government introduced, and relied on, evidence obtained from the phone at trial. Cano in turn presented a third-party culpability defense, claiming that his cousin placed the drugs in Cano's spare tire without Cano's knowledge. Cano , 934 F.3d at 1009. The jury was hung after the first trial and convicted Cano at the second. Id. at 1010.

A panel of this court reversed because "the district court erred in denying Cano's motion to suppress." Id. at 1010. The panel agreed with Cano that the warrantless searches of his phone at the border violated the Fourth Amendment because "border searches are limited in both purpose and scope to searches for contraband."

Id. at 1016–17. The panel drew a "distinction between seizing goods at the border because their importation is prohibited and seizing goods at the border because they may be useful in prosecuting crimes." Id. at 1018. From this, the panel imposed "two practical limitations on warrantless border searches." Id. at 1019. First, border officials can search for only contraband (rather than evidence of contraband-related crimes) because otherwise the search is "untethered" from the exception. Id. Second, border officials need reasonable suspicion of digital contraband (like child pornography) concealed within a cell phone to forensically search a cell phone. Id. at 1020. Otherwise, the panel opined, the government could forensically search "every electronic device of anyone arrested at the border" and this would go against "the protections laid out in Riley "7 simply because the search occurred at the border. Id.

Applying this new view of the border search exception to the facts of the case, the panel found that the second manual search of the phone was outside the scope of the border search exception irrespective of the reasonable suspicion of border-related crimes. Id. at 1019. The agent could not record the phone numbers or photograph the two messages received because "[t]hose actions have no connection whatsoever to digital contraband." Id. Thus, the second manual search was unreasonable. And the panel held if the use of the Cellebrite software to download some of the phone's contents was a forensic search, it was unreasonable because agents had no reasonable suspicion that there was contraband on the phone. Id. at 1020. The panel also concluded that once a person has been arrested "there is no reason why border officials cannot obtain a warrant before conducting their forensic search" because new technology allows for faster processing of warrant applications. Id.

Finally, the panel found the good faith exception did not apply because under the panel's new interpretation of United States v. Cotterman , 709 F.3d 952 (9th Cir. 2013) (en banc) —that Cotterman authorized only a search for contraband, not evidence—the CBP agents could not have relied in good faith on Cotterman to search for evidence of border-related crimes. Id. at 1021–22.

II.

The panel decision runs headlong into decades of Supreme Court precedent and deviates from the historical understanding of the purpose of the border search exception. The panel's framework also goes against the clear statement of the law in Cotterman and has been soundly rejected by at least two other circuits.

A.

The border search exception is "as old as the Fourth Amendment itself" and "is grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country." United States v. Ramsey , 431 U.S. 606, 619, 620, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977). In Ramsey , the Court emphasized that a border search is reasonable by one "single fact": did the "person or item in question ...enter[ ] into our country from outside[?]" Id. at 619, 97 S.Ct. 1972. Nothing in the opinion purported to limit the power of the sovereign at the border to search only for contraband, and the Court expressly reserved the question of whether the search was authorized under the statute at issue or whether that statute imposed a limit "on otherwise existing authority of the Executive." Id. at 615, 97 S.Ct. 1972. Put differently, Ramsey did not decide whether border searches need to be authorized by statute or are per se valid exercises of Executive power. The Court in Ramsey chided the D.C. Circuit for characterizing the Court's prior decisions as a refusal "to take an expansive view of the border search exception or the authority of the Border Patrol." Id. at 622, 97 S.Ct. 1972. The Court instead noted that the border search authority is "plenary." Id.

The Court revisited the border search exception in United States v. Montoya de Hernandez , 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985), reversing a decision of our court. The case focused on an alimentary...

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