Mobile Phone Border Search Stands Despite SCOTUS Ruling

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By Jordan S. Rubin

Law enforcement didn’t need warrants to forensically search a man’s mobile phones at the U.S.-Mexico border, a divided U.S Court of Appeals for the Eleventh Circuit held March 15.

The court distinguished the U.S. Supreme Court’s landmark 2014 ruling in Riley v. California. There the high court held cops need warrants to search mobile phones of people they arrest.

It was the first time any federal appeals court in the country ruled on the border search question post- Riley.

Riley doesn’t control at the border, Judge William Pryor wrote for the court.

Hernando Javier Vergara moved to suppress child pornography found on his phones when he returned to Florida from Mexico. Customs and Border Protection identified him based on his prior child pornography conviction.

Border searches never require a warrant or probable cause, the majority said.

At most they require reasonable suspicion, the court said. But Vergara didn’t argue the agents lacked reasonable suspicion to conduct a forensic search of his phones, it said.

Judge Jill Pryor dissented. She disagreed with the majority’s “dismissal of the significant privacy interests implicated in cell phone searches” as noted by the Supreme Court in Riley.

The rationales underlying the border search exception lose force when applied to forensic phone searches, she argued. Mobile phones don’t contain the types of physical contraband, such as diseases, narcotics, and explosives, that have historically been prevented from crossing the border.

Judge Raymond C. Clevenger III, sitting by designation from the Federal Circuit, joined the majority opinion.

The case is United States v. Vergara , 2018 BL 88713, 11th Cir., 16-15059, 3/15/18 .

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bloomberglaw.com

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