     Case: 19-20427    Document: 00515530128     Page: 1   Date Filed: 08/17/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                                    Fifth Circuit

                                                                   FILED
                                                               August 17, 2020
                                  No. 19-20427
                                                                Lyle W. Cayce
                                                                     Clerk
UNITED STATES OF AMERICA,

              Plaintiff - Appellant

v.

CRISTOFER JOSE GALLEGOS-ESPINAL,

              Defendant - Appellee




                 Appeal from the United States District Court
                      for the Southern District of Texas


Before JOLLY, GRAVES, and DUNCAN, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      The Department of Homeland Security (DHS) suspected Cristofer
Gallegos-Espinal (Gallegos) of participating in his mother’s alien-smuggling
conspiracy.    But when federal agents persuaded Gallegos voluntarily to
consent to a thorough search of his iPhone, they discovered evidence of an
unrelated crime: possession of child pornography. This discovery led to a three-
count indictment charging Gallegos with sex offenses with a minor and
destruction of evidence. In the pretrial proceedings below, the district court
suppressed three incriminating videos that the government discovered in the
course of an examination of extracted data from Gallegos’s iPhone. The court
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                                   No. 19-20427
ruled that Gallegos’s written consent to a “complete search” of the iPhone could
not support a review of extracted data three days after the phone was returned.
      The government has filed this interlocutory appeal, under 18 U.S.C.
§ 3731, challenging the district court’s suppression ruling. Because Gallegos
signed a consent form that, in its broad terms, encompasses the search and
seizure conducted, and because Gallegos failed affirmatively to limit the scope
of his broad consent, we reverse and vacate the district court’s suppression of
evidence and remand for further proceedings not inconsistent with this
opinion.
                                        I.
      On September 19, 2017, DHS agents closed in on Aleida Ruedo Espinal
(Aleida), one of the primary targets of an alien-smuggling investigation. When
the agents arrested Aleida and searched her home, she requested that her
minor children be left in the custody of her adult son, defendant Cristofer
Gallegos-Espinal. The agents quickly obliged. Gallegos was a secondary target
in their alien-smuggling investigation, so Aleida’s request presented an
opportunity to look for evidence tying Gallegos to his mother’s smuggling
operation.
      When Gallegos arrived at the scene, about twenty law enforcement
officers were there to greet him. Agents conducted a pat down for officer safety,
and then searched Gallegos’s vehicle for weapons. These initial searches did
not uncover any weapons or other contraband. Gallegos, however, was in
possession of a gray Samsung cell phone. No contraband having been found,
Gallegos was permitted to enter his mother’s house, where he was introduced
to Case Agent Richard Newman. Agent Newman explained to Gallegos that
he had been called to the scene because his mother had requested that he take
custody of his younger siblings.


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                                     No. 19-20427
       Agent Newman testified that when he first spoke to Gallegos his goal
was to review Gallegos’s gray Samsung. He wanted to look for certain banking
information because he suspected that Gallegos was a “financial facilitator” in
his mother’s alien-smuggling network. At the same time, he also wanted to
make sure not to tip Gallegos off to his suspicions. So, he decided to “use an
absurd example of why [he] wanted to [see the] phone.” He suggested that,
before Gallegos could take custody of a minor child, he and the other agents
would need to search Gallegos’s vehicle a second time for “something illegal”
and also “look through [Gallegos’s] phone to make sure [there was not] any
child pornography on it.” This “absurd example” brought on a chuckle from
Gallegos and a few of the agents in the vicinity, apparently because Gallegos
believed (and the agents pretended to believe) that the search of the cell phone
was a frivolous formality.1
       Gallegos agreed to the requested searches of his vehicle and gray
Samsung, and in each case his consent was registered both orally and in
writing. The written document reflecting Gallegos’s consent, which was signed
by Gallegos, was a standard consent form. The consent authorized “a complete
search of [Gallegos’s] Phone & car.” In addition to a “complete search,” the
consent further authorized a seizure: specifically, it permitted agents to “take
any letters, papers, materials, or other property which they may desire to
examine.” Finally, the signed consent form put Gallegos on notice that a search
or seizure might produce evidence that could be used against him in a later
criminal proceeding.2



       1 The deceit of the agents, however, has not been raised as a challenge to the
voluntariness of the consent.
       2 The generic consent form used by the agents is the standard form commonly used in

similar circumstances. The agents admit that they intentionally used this generic form,
rather than a more specific one, because the generic form was more likely to induce consent
and less likely to draw an objection.
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                                 No. 19-20427
      At this point, the investigation began to occur simultaneously on two
fronts. Agent Newman and others remained in Aleida’s house and started to
search the gray Samsung. Other agents, having received Gallegos’s consent
for a thorough search of the vehicle, left the house and returned to the vehicle
to begin that search.
      We turn first to the search of the gray Samsung, which occurred in
Aleida’s kitchen. One of the agents hooked the phone up to an electronic
extracting device called a “Cellebrite” to extract (i.e., copy) its data. At some
point, Gallegos observed the Cellebrite extraction taking place. In fact, he sat
at the table where the extraction was taking place and could see clearly the
agents connecting wires from the Cellebrite to the gray Samsung. It is clear
that, at that point, he knew more than a “look through” was occurring, but he
still made no objection or comment.
      While the gray Samsung was connected to the Cellebrite, some of the
agents were outside conducting the second vehicle search. Although the signed
consent form initially identified only Gallegos’s vehicle and gray Samsung as
the property subject to search, these agents soon discovered a second cell phone
(a white iPhone). Gallegos orally consented to a search of the iPhone, which
was then inserted into the form. Gallegos does not challenge the validity of
this amendment of the consent form.        The agents’ testimony suggests that,
after giving consent to search the iPhone orally, Gallegos personally wrote the
iPhone’s twelve-digit passcode onto the consent form that he had earlier
signed. Gallegos remembers it differently, but he does not deny providing the
passcode. According to his declaration, Gallegos orally gave the passcode to
the agents and watched as an agent added the passcode to the consent form,
to which he made no comment. In any event, the agents were given the
passcode, the consent form was modified to include the iPhone, and the phone
was seized, without objection from Gallegos, for a later inspection.
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                                   No. 19-20427
        Meanwhile, back in the kitchen, the extraction of the gray Samsung was
nearing completion. The extraction had lasted more than forty-five minutes,
and a visual display on the Cellebrite’s screen had tracked the progress of the
download, which Gallegos had observed in part. The download was a “logical
extraction,” which means that the Cellebrite copied only data that would be
visible during a manual search of the phone.          By contrast, a “physical”
extraction would have downloaded deleted data as well.
        When the agents finished their logical extraction of the gray Samsung,
they asked Gallegos to accompany them to the Homeland Security
Investigations building in Houston for an interview about his mother’s
smuggling activities. At this point, the agents were in possession of both
phones: the gray Samsung and the white iPhone. Once at the office, the
iPhone, which had not yet been examined, was subjected to a logical extraction,
but not in Gallegos’s presence.      After the interview was over, the agents
returned both the Samsung and the iPhone to Gallegos—meaning that the
phones were returned on the same day that they were consensually seized.
        At this point, it should be noted that the gray Samsung is not involved
in this appeal. No search of the Samsung produced evidence relevant to this
case.
        The white iPhone is the focus of this appeal. Three days after the logical
extraction, an examination of that data taken from the iPhone showed that
Gallegos was in possession of child pornography. In the iPhone’s photo gallery,
Gallegos had stored (without deleting) three videos depicting his sexual abuse
of a young girl, whom Gallegos identifies as his “young minor sister.” These
images would have been accessible to an agent conducting a manual search of
the iPhone. When the pornographic videos were discovered, the case was
reassigned to agents with more experience in child pornography cases,
including Special Agent Richard Wilfong, a specialist in cyber investigations.
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                                     No. 19-20427
       Special Agent Wilfong applied for a warrant to search Gallegos’s iPhone
and to further probe its data. He testified that his purpose in seeking a
warrant was to determine “where the videos were created” and to “see if [they]
had been distributed anywhere.” When it came time to execute the warrant
on Gallegos’s iPhone (which had been returned to him on the day it was
searched), Wilfong’s team located Gallegos and asked him where his phone
was. He told them that it was at his aunt’s house, but that turned out not to
be true. Eventually, Gallegos met the agents at his aunt’s house, with the
iPhone in his possession, and told them that he forgot he had left the phone in
his car. The phone was handed over, but the agents soon discovered that it
had been restored to factory settings and that its incriminating videos had been
erased.3    As far as the record shows, no additional evidence of child
pornography was discovered on the device.
                                            II.
       The government’s investigation ultimately produced a three-count
indictment charging Gallegos with sexual exploitation of a child under 18
U.S.C. § 2251, possession of child pornography under 18 U.S.C. § 2252A, and
destruction of property under 18 U.S.C. § 2232. Following the indictment,
Gallegos moved to suppress “all data downloaded from [his] Iphone,” including
the three incriminating videos. He argued that investigators had violated the
Fourth Amendment in several ways, including by eliciting involuntary
consent, by exceeding the scope of any consent given, and by relying on a
deficient search warrant. The court held a two-day suppression hearing to
resolve the motion.




       3 The videos in question would no longer have been accessible during a manual search
or logical extraction, but they would have been recoverable during a physical extraction.
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                                      No. 19-20427
       The district court disagreed with most of Gallegos’s arguments for
suppression, including his arguments concerning voluntariness and the
alleged deficiency of the search warrant. Furthermore, the court rejected
Gallegos’s argument that the Cellebrite extraction of his data was beyond the
scope of his consent, holding that under the circumstances “a reasonable
person would have believed his [iPhone] data was being downloaded, and . . .
it was Gallegos’s responsibility to limit the scope of consent to a manual
search.” But the forensic examination of extracted data—which occurred after
the iPhone was returned to Gallegos—was a different matter.                  The district
court held that the government’s review of extracted data occurred too long
after Gallegos’s “cell phones were returned to his physical possession and he
was no longer going to be taking custody of his siblings.”                   This timely
government appeal followed.


                                            III.
       The sole issue in this interlocutory appeal is whether the government
exceeded the scope of Gallegos’s consent by reviewing extracted evidence after
the iPhone was returned and before a search warrant was obtained,
notwithstanding the broad terms of Gallegos’s consent to search the phone.4
“[T]he scope of consent to a search is a question of law that we review de novo.”
United States v. Iraheta, 764 F.3d 455, 460 (5th Cir. 2014). “Where there is
ambiguity regarding the scope of a consent, the defendant has the




       4 At times, Gallegos appears to make other arguments, e.g., arguments concerning the
good-faith exception to the exclusionary rule. But only one issue, the scope of his consent,
has been raised by the appellant or adequately briefed by the parties, so only that issue is
before us on appeal. See Edmond v. Collins, 8 F.3d 290, 292 n.5 (5th Cir. 1993) (“On appeal,
we do not review issues not briefed.”). We also reiterate that Gallegos has expressly
disclaimed any challenge to the district court’s conclusion that his consent was voluntary.
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                                  No. 19-20427
responsibility to affirmatively limit its scope.” United States v. Sarli, 913 F.3d
491, 495 (5th Cir. 2019).
      The Supreme Court’s standard for measuring the scope of a consent is
one “of ‘objective’ reasonableness—what would the typical reasonable person
have understood by the exchange between the officer and the suspect?” Florida
v. Jimeno, 500 U.S. 248, 250–51 (1991). Although this standard focuses on the
term “exchange,” which usually occurs orally between the parties at the scene
of the event, we have previously applied it to written consents. United States
v. Flores, 63 F.3d 1342, 1362 (5th Cir. 1995).    The question that will resolve
this appeal is thus framed: how would a typical reasonable person interpret
the written consent? See United States v. Starr, 533 F.3d 985, 995–96 (8th Cir.
2008). Even though that is a question of law, “factual circumstances are highly
relevant when determining what [a] reasonable person would have believed to
be the outer bounds of the consent that was given.” United States v. Mendez,
431 F.3d 420, 426 (5th Cir. 2005) (quoting United States v. Mendoza-Gonzalez,
318 F.3d 663, 667 (5th Cir. 2003)). For that reason, we “take account of any
express or implied limitations or qualifications attending . . . consent which
establish the permissible scope of the search in terms of such matters as time,
duration, area, or intensity.” United States v. Cotton, 722 F.3d 271, 275 (5th
Cir. 2013) (quoting 4 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 8.1(c) (5th ed.
2012)).
      Turning to the present case, we begin by examining the totality of the
circumstances surrounding Gallegos’s consent.          The record shows that
Gallegos first consented orally and that his oral consent was then “reduce[d]
. . . to writing.” To reduce the earlier oral consent to writing, agents had
Gallegos personally execute a written agreement laying out the scope of his




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                                      No. 19-20427
consent. Without a doubt, the terms of this written consent are broad.5 The
agreement authorized “complete” searches of Gallegos’s vehicle and gray
Samsung; it also permitted the seizure of “any letters, papers, materials, or
other property which [the agents] may desire to examine.” Furthermore, the
agreement directly and unambiguously contemplated the search of a cell
phone, i.e., an electronic device packed with personal information. Here, it can
be reasonably assumed that Gallegos knew that the contents of his phone
would be the subject of the search. One agent even testified that Gallegos
personally wrote “gray Samsung” into the agreement, and Gallegos’s
declaration does not contradict such testimony. Finally, as previously noted,
Gallegos does not dispute that the original agreement was validly amended to
encompass the iPhone. Nor does he challenge the conclusion that, after the
written amendment to the consent, the iPhone could be searched on the same
terms as the Samsung and the vehicle, the two original subjects of the consent
agreement.
       The record thus establishes that Gallegos’s consent is reliably reflected
in the terms of the written consent agreement, which relate directly to the
property at issue (Gallegos’s white iPhone). Our task is simply to apply the
terms of the agreement as a typical reasonable person would understand those
terms. Jimeno, 500 U.S. at 250–51.


       5 The consent agreement reads in full: “I, Cristofer Gallegos, have been informed by
U.S. Immigration and Customs Enforcement (ICE) Special Agent Newman of my right to
refuse to consent to a search of my property, described as . . . Car Scion XD 2008 + Gray
Samsung and White Iphone [with omitted passcode]. I have also been advised by ICE Special
Agent Newman that, if I voluntarily consent to a search of this property, anything discovered
during this search may be used against me in any criminal, civil, or administrative
proceedings. I have decided to allow ICE Special Agents Newman and Cardenas (BPA) to
conduct a complete search of my Phone + car, located at [address omitted]. These ICE Special
Agents are authorized by me to take any letters, papers, materials, or other property which
they may desire to examine. I hereby voluntarily and intentionally consent to allow ICE to
search my property. My consent is freely given and not the result of any promises, threats,
coercion, or other intimidation. I have read the above statement and understand my rights.”
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                                      No. 19-20427
       So, turning to that task, we emphasize again that the terms of the
agreement are plainly broad. The agreement includes consent for a “complete”
search and a seizure of “any . . . property.” Applying the terms as written, we
are compelled to conclude that the search did not exceed the scope of consent
by extracting the iPhone’s data or in later reviewing it. Cf. United States v.
Roberts, 274 F.3d 1007, 1016 (5th Cir. 2001) (agreeing that digital evidence of
child pornography was within the scope of a nearly identical consent
agreement). No aspect of the search fell outside the range of conduct that a
typical reasonable person would expect from a “complete” iPhone search or
from the subsequent seizure of any “materials . . . which [the government] may
desire to examine.” A typical reasonable owner of a cell phone would know
that a cell phone contains extensive personal information and would
understand that a “complete” cell phone search refers not just to a physical
examination of the phone, but further contemplates an inspection of the
phone’s “complete” contents. A typical reasonable owner of a cell phone would
also realize that permission to seize “materials” includes permission to seize
(and examine) such information. See Material, OXFORD ENGLISH DICTIONARY
(3d ed. 2001) (defining “material” to mean “[t]ext or images in printed or
electronic form”).
       Gallegos proffers a few reasons to depart from the plainly broad terms of
the consent form, but none is convincing.6 We thus hold that the government’s


       6For example, Gallegos argues that the consent agreement should not be construed
to expand upon his earlier oral consent. This argument, however, has no weight where
Gallegos voluntarily signed a written consent agreement and failed affirmatively to limit the
agreement’s breadth. Mendez, 431 F.3d at 427 (“It is the defendant’s responsibility to limit
the scope of the search if he so intends.”); Sarli, 913 F.3d at 495.
       Gallegos further contends that our decision in United States v. Escamilla, 852 F.3d
474 (5th Cir. 2017), controls the outcome here. Escamilla, however, is inapposite because
Escamilla did not feature any written consent agreement. See id. at 484–85. The
uncontested oral and written consent here stand in overwhelming contrast to the limited
consent obtained in Escamilla, which was simply implied from the fact that the suspect
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                                       No. 19-20427
extraction of data and later review of that data did not exceed the scope of
consent as plainly, unmistakably, and voluntarily set out in the consent
agreement. Because the scope of consent was the only basis for evidentiary
suppression argued on appeal, we hold that the district court’s suppression of
evidence was reversible error.
                                             IV.
       To sum up: the only issue presented by this appeal concerns the scope of
Gallegos’s consent. The consent was broad—broad enough fairly to cover the
search and seizure of cell phone data that occurred here. Although Gallegos
urges us to disregard or modify the broad terms of his voluntary consent, he
has offered no persuasive reason for our doing so.
       Accordingly, the district court’s suppression order is REVERSED and
VACATED, and the case is REMANDED for further proceedings not
inconsistent with this opinion.


                                        REVERSED, VACATED, and REMANDED.




handed over his phone when an agent requested it. Id. Neither does Escamilla stand for the
blanket proposition that the return of a consensually searched cell phone categorically bars
a further review of data taken from the phone during the search. The permissibility of such
a review turns on the consent obtained. Here, a later review of extracted data comports with
written language in the consent agreement authorizing a “complete” search of the iPhone and
a seizure of any “materials . . . which [the agents] may desire to examine.”
       Further, citing our decision in SEC v. ESM Gov’t Sec., Inc., 645 F.2d 310 (5th Cir.
1981), Gallegos appears to argue that the terms of his consent should be disregarded because
they were induced by deception. But on appeal Gallegos does not challenge the district court’s
conclusion that, notwithstanding the deception, his consent was voluntary.
       Finally, Gallegos repeatedly implies that some limitation should be grafted onto the
broad terms of the consent agreement because cell phone searches implicate important
privacy interests. Cf. Riley v. California, 573 U.S. 373, 386 (2014). But the admitted
importance of the privacy interest at stake does not override our basic task, which is to
interpret, as a typical reasonable person would, the broad, voluntary, and undisputed consent
actually given by Gallegos. We have tried to do that in the analysis above.
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                                     No. 19-20427
JAMES E. GRAVES, JR., Circuit Judge, dissenting:
      The majority concludes that Defendant Cristofer Gallegos-Espinal
“signed a consent form that, in its broad terms, encompasses the search and
seizure conducted” and “failed affirmatively to limit the scope of his broad
consent.” Because the consent form insufficiently explained that the iPhone’s
data would be extracted for later review and because the Cellebrite iPhone
extraction occurred outside of Gallegos-Espinal’s presence, I respectfully
dissent.
      As Justice Scalia wrote, “It would be foolish to contend that the degree
of privacy secured to citizens by the Fourth Amendment has been entirely
unaffected by the advance of technology.” Kyllo v. United States, 533 U.S. 27,
33-34 (2001); see also Riley v. California, 573 U.S. 373, 407 (2014) (Alito, J.,
concurring in part and concurring in the judgment) (“Many cell phones now in
use are capable of storing and accessing a quantity of information, some highly
personal, that no person would ever have had on his person in hard-copy form.
This calls for a new balancing of law enforcement and privacy interests.”).
      “Cell phones differ in both a quantitative and a qualitative sense from
other objects that might be kept on an arrestee’s person.” Riley, 573 U.S. at
393. “The sum of an individual’s private life [on a cell phone] can be
reconstructed through a thousand photographs labeled with dates, locations,
and descriptions; the same cannot be said of a photograph or two of loved ones
tucked into a wallet.” Id. at 394.
      The question before us is whether Gallegos-Espinal’s consent–
specifically his verbal consent for agents to “look through” a cellphone; a
written consent on a generic, outdated consent form; and an implicit (and
arguably uninformed) consent to a Cellebrite iPhone search—allowed the
government to extract a duplicate copy of his iPhone contents for a subsequent
forensic review at a later time.
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                                  No. 19-20427
      Of course, we measure the scope of a person’s consent by “objective
reasonableness”—“what would the typical reasonable person have understood
by the exchange between the officer and the suspect?” Florida v. Jimeno, 500
U.S. 248, 251 (1991). “The test of reasonableness under the Fourth Amendment
is not capable of precise definition or mechanical application.” Bell v. Wolfish,
441 U.S. 520, 559 (1979) (emphasis added). If the suspect’s “consent would
reasonably be understood to extend to [holding onto the copied contents of a
cellphone], the Fourth Amendment provides no grounds for requiring a more
explicit authorization.” Jimeno, 500 U.S. at 252.
      The defendant has the responsibility to limit the scope of his consent,
United States v. Mendoza-Gonzalez, 318 F.3d 663, 667 (5th Cir. 2003), and
clear up any “ambiguity regarding the scope of a consent,” United States v.
Sarli, 913 F.3d 491, 495 (5th Cir.), cert. denied, 139 S. Ct. 1584 (2019). “Thus,
it is ‘important to take account of any express or implied limitations or
qualifications attending that consent which establish the permissible scope of
the search in terms of . . . time, duration, area, or intensity.’” United States v.
Cotton, 722 F.3d 271, 275 (5th Cir. 2013) (citation omitted). “[A]ny failure to
object ‘should not be treated as expanding a more limited consent, especially
when the circumstances suggest some other possible reason for defendant’s
silence.’” Cotton, 722 F.3d at 278 (footnotes omitted).
      Here, the generic consent form only specified that agents can “take any
letters, papers, materials, or other property which they may desire to
examine.” Today’s decision requires the average person to make the inferential
leap that “property” refers to your digital content, including text messages,
photos, Google Maps locations, bank account statements, and even your
highest score on Candy Crush.
      Turning to the totality of circumstances, we examine the Cellebrite
device connected to Gallegos-Espinal’s phones:
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                                  No. 19-20427




      Government Exhibit 4                       Government Exhibit 3



      According to the agents, the Cellebrite extraction device looks like a
“suitcase” connected to a “power outlet” with various “cables” and a screen
displaying a bar to indicate “a countdown, like an hour and 30 minutes, as it’s
extracting the information.” The agents noted that they did not manually
thumb through the Samsung as it was connected to the Cellebrite machine. Id.
One agent explained that he personally assumed that, “If a phone is hooked up
to another machine, I don’t know what else you could imagine is happening
other than that [data] is being extracted. So, I assume [Gallegos-Espinal] knew
that data was being transferred from his phone to the machine; but I don’t
know.”
      However, when agents took the white iPhone, Gallegos-Espinal gave the
agents his iPhone’s passcode, an indication that he believed agents would
manually thumb through any evidence on the iPhone. The incriminating
evidence was stored in the iPhone’s photo gallery and not deleted, so Gallegos-
Espinal knew that the agent might come across these photos or videos while
manually scrolling through the iPhone.
      After the Cellebrite extraction of the Samsung was completed, Gallegos-
Espinal maintains that agents told him he needed to drive immediately to the
agents’ offices to retrieve his little brother or his brother would be turned over

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                                 No. 19-20427
to child protective services. Gallegos-Espinal agreed to go to the agent’s office
and drove his own vehicle to meet them. While agents interviewed Gallegos-
Espinal at the office, the logical extraction of his iPhone took place in another
room outside his presence.
      In my view, Gallegos-Espinal’s inability to see the Cellebrite extraction
performed on his iPhone (as he previously saw on his Samsung phone) deprived
him of having information necessary to make an expressed or implied
limitation on the initial broad consent to search. We can only speculate as to
whether Gallegos-Espinal would have limited the scope of the search had he
witnessed his iPhone being plugged into the Cellebrite machine for data
extraction. The general consent form was insufficient to alert Gallegos-Espinal
that the government was going to extract and retain the iPhone data for later
examination, especially when Gallegos-Espinal was told the phone searches
were only needed to determine if he could take custody of his younger siblings.
For these reasons, I would affirm the district court’s suppression order.




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