11th Circuit Upholds Warrantless Search of Cellphones at US Border

ATLANTA (CN) – A divided 11th Circuit on Thursday upheld the conviction of a Florida man stemming from a warrantless search of his cellphone, holding that such searches do not violate the Fourth Amendment.

The appellant in the case, Hernando Javier Vergara, was returning home to Tampa, Florida following a cruise to Cozumel, Mexico, when he was subjected to a search of luggage by a Customs and Border Protection officer.

At the time, Vergara had three cell phones in his possession, and the officer as him to turn one of the phones on. During a cursory search, the officer came upon a video of two topless female minors. He then summoned Department of Homeland Security investigators, who took possession of all three phones for forensic analysis.

That analysis revealed two of the phones contained more than 100 images and videos deemed to be child pornography.

A grand jury later indicted Vergara on two counts: that he “did knowingly transport in and affecting interstate and foreign commerce one or more visual depictions, the production of which involved the use of a minor engaging in sexually explicit conduct and such visual depictions were of such conduct”; and, that he “did knowingly possess numerous matters that had been shipped and transported using any means and facility of interstate and foreign

commerce, including by computer, which matters contained visual depictions of minors engaging in sexually explicit conduct and the production of which involved.”

Vergara filed a motion to suppress the evidence obtained from his cellphones based on the fact they were searched without a warrant, but that motion was denied.

At a later bench trial, the district court found Vergara guilty of both counts and later sentenced him to ninety-six months imprisonment on each count followed by supervision for life.

Writing for the majority in the divided 11th Circuit ruling upholding Vergara’s conviction, U.S. Circuit Judge William Pryor noted that the Florida resident was arguing that the U.S. Supreme Court’s decision in Riley v. California — that the search-incident-to-arrest exception to the warrant requirement does not apply to searches of cell phones—should govern this appeal.

“We disagree,” Pryor said. “The forensic searches of Vergara’s cell phones occurred at the border, not as searches incident to arrest, and border searches never require a warrant or probable cause. At most, border searches require reasonable suspicion, but Vergara has not argued that the agents lacked reasonable suspicion to conduct a forensic search of his phones.”

The judge added: “The Supreme Court has consistently held that border searches are not subject to the probable cause and warrant requirements of the Fourth Amendment.”

But U.S. Circuit Judge Jill Pryor dissented.

“In this case we decide for the first time whether a warrantless forensic search of a cell phone at the United States border comports with the Fourth Amendment,” she wrote. “To determine whether a law enforcement practice is constitutional, courts must balance its promotion of legitimate government interests against its intrusion on an individual’s Fourth Amendment rights.

“The majority opinion concludes that this balance weighs heavily in the government’s favor because the searches occurred at the border,” she continued. “I agree with the majority that the government’s interest in protecting the nation is at its peak at the border, but I disagree with the majority’s dismissal of the significant privacy interests implicated in cell phone searches, as articulated by the Supreme Court in Riley.”

In my view, a forensic search of a cell phone at the border requires a warrant supported by probable cause,” Pryor said.

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