Case Overview
According to the one court of appeals, the answer is yes. Last week, a divided panel of judges from the Eleventh Circuit Court of Appeals found that warrantless, forensic searches of a U.S. citizen’s smartphones at the border were constitutional. In United States v. Vergara, the Eleventh Circuit was tasked with weighing the government’s interest in border and territorial security against Fourth Amendment protections from unreasonable searches and seizures. No. 16-15059, 2018 U.S. App. LEXIS 6413 (11th Cir. Mar. 15, 2018). The crucial question before the court was whether the vast amount of personal data stored on a smartphone implicated heightened privacy concerns that vitiated the well-established rule that border searches do not require a warrant. Id. at *7. Read our prior blog for an overview of what a "reasonable expectation of privacy" is under the Fourth Amendment. The court concluded that the government's interest in border security outweighed a citizen's privacy interest in their smartphone data and held a warrant is not required to perform a forensic search of smartphones at United States Borders.
In Vergara, the defendant had arrived at the United States border in Tampa, Florida, after traveling on a cruise line out of Cozumel, Mexico. Because the defendant had a prior conviction for possession of child pornography, the U.S. Customs and Border Protection agents flagged him for an additional search and screening. Upon the defendant's arrival, border agents performed manual searches of three smartphones located in the defendant's luggage and found videos of topless females from a website known to distribute child pornography. The border agents seized the smart phones and called in forensic agents for the purpose of conducting forensic data extractions. The subsequent data extractions led to the discovery of over 100 images and videos determined to constitute child pornography. Id. at *2-3.
After his arrest and indictment, the defendant moved to suppress the evidence from the smartphones on the ground that the forensic searches were performed in violation of his Fourth Amendment right against unreasonable searches. Id. at *4. The district court held a suppression hearing and denied the motion to suppress, holding that border searches do not require a warrant. The Fourth Amendment generally requires that officers obtain a search warrant supported by probable cause before conducting a search; however, the Supreme Court previously held that border searches are not subject to the probable cause and warrant requirement because the government maintains a paramount interest in protecting its territorial integrity. United States v. Ramsey, 431 U.S. 606, 619 (1977).
The Eleventh Circuit's Rationale
The defendant appealed the district court's denial to the Eleventh Circuit and advanced the same arguments at the appellate level that were made before the district court. The defendant argued that the 2014 decision of the Supreme Court in United States v. Riley should control. In Riley, the Court cited the special privacy concerns implicated by smartphones to find a warrantless search of a smartphone - incident to arrest - unconstitutional. Riley v. California, 134 S. Ct. 2473, 2477 (2014). The Court discussed the consequences of a smartphone’s storage capacity and explained how pictures, emails, text messages, internet browsing history, and other types of data can be reconstructed into a sum of an individual’s private life. Id. at *2489. The Court likened a search of the trove of information stored on a smartphone to the ransacking of a man’s house for incriminating evidence. Id. These two searches, the Court explained, are far different than the warrantless search of a man’s pockets, which is the type of search contemplated by the rationale underlying the exception to the warrant requirement for the search of an arrestee’s person immediately following the arrest. Id. For an overview of exceptions to the warrant requirement, check out this article. Yet, the Court limited its holding in Riley to the search incident to arrest exception and noted that other “ case-specific exceptions may still justify a warrantless search of a particular phone.” Id. at *2494. The Eleventh Circuit relied on this language as it balanced the government’s interest in border integrity against Fourth Amendment protections from unreasonable searches. Because border searches have long been exempt from the warrant requirement, and the Supreme Court limited its holding in Riley to the search incident to arrest exception, the Eleventh Circuit held that the forensic searches of the smartphones did not violate the Fourth Amendment. Vergara, 2018 U.S. App. LEXIS 6413, at *7.
The Dissenting Opinion
In the dissenting opinion, Judge Jill Pryor drew a compelling distinction between the manual search of a smartphone, like the one performed in Riley, and the forensic searches of the defendant's smartphones in Vergara. Id. at *13. Judge Pryor argued that a forensic search implicates even greater privacy concerns than a manual search of a smartphone, and that this heightened privacy concern militates against the government's typically paramount interest in border security. Id. at *16. Therefore, given that the Court found privacy concerns sufficient to require a warrant for a manual search of a smart phone, it follows that a forensic search - even at the border - should also require a warrant. Judge Pryor pointed out that the burden on the government of obtaining a warrant is not a compelling basis for an exception to Fourth Amendment Protections considering the especially heightened privacy concerns involved with forensic searches. Id. at *19-20. Furthermore, Judge Pryor noted that relative to the "involved process" of performing a forensic search, which in Vergara required bringing specialized forensic agents to the border, the additional burden on the government of obtaining a warrant is slight. Id. at *21.
Conclusion
Riley and Vergara are illustrative of how our court system increasingly grapples with the problems created by reconciling the rapid advancement of technology with Fourth Amendment rights. Currently before the Supreme Court is Carpenter v. United States, a case out of the Sixth Circuit that asks the Court to decide whether there is a reasonable expectation of privacy with respect to smartphone location data held by wireless cell service providers. United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016). Check back with the Faruki Blog for an update when the Supreme Court issues its decision in Carpenter. For additional case law on the Fourth Amendment and smart devices, read about the Amazon Echo case here. In the meantime, professionals should be mindful that sensitive smartphone data, such as business records and client data, could be subjected to warrantless manual and forensic searches at the United States' borders.