     Case: 17-50070       Document: 00514369559        Page: 1   Date Filed: 03/01/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                     United States Court of Appeals
                                       No. 17-50070                           Fifth Circuit

                                                                            FILED
                                                                        March 1, 2018
UNITED STATES OF AMERICA,                                              Lyle W. Cayce
                                                                            Clerk
                Plaintiff - Appellee

v.

MARIA ISABEL MOLINA-ISIDORO,

                Defendant - Appellant


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


Before DAVIS, HAYNES, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge: ∗
      After discovering kilos of meth in the suitcase Maria Isabel Molina-
Isidoro was carrying across the border, customs agents looked at a couple of
apps on her cell phone. Molina argues that the evidence found during this
warrantless search of her phone should be suppressed. Along with amici, she
invites the court to announce general rules concerning the application of the
government’s historically broad border-search authority to modern technology
for which the Supreme Court has recognized increased privacy interests. See
Riley v. California, 134 S. Ct. 2473, 2489–91, 2493 (2014). We decline the
invitation to do so because the nonforensic search of Molina’s cell phone at the



      ∗
          Judge Haynes concurs in the judgment only.
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                                 No. 17-50070
border was supported by probable cause. That means at a minimum the agents
had a good-faith basis for believing the search did not run afoul of the Fourth
Amendment.
                                       I.
      Molina attempted to enter the United States at a border crossing in El
Paso. Customs and Border Protection officers “detected anomalies” while x-
raying her suitcase. When they questioned Molina, she acknowledged owning
the suitcase but claimed that it only contained clothing.
      At a secondary inspection area, in response to questions about her
travels, Molina said she had delivered clothing to her brother in Juarez, Mexico
and would be flying home to Tijuana, Mexico from El Paso. At that point, an
officer opened Molina’s suitcase and noticed a modification. After rescanning
the suitcase, the officers located an “anomaly . . . covered by electrical tape.”
That anomaly was a hidden compartment, which held 4.32 kilograms of a white
crystal substance.   A drug-sniffing dog alerted officers to the presence of
narcotics,   and     the   crystal   substance     field-tested     positive    for
methamphetamine. Later laboratory tests confirmed that result.
      Agents from the Department of Homeland Security soon arrived on the
scene.   Molina could not explain how the drugs made their way into her
suitcase, though she admitted that no one could have placed them there
without her knowledge. Then Molina again recounted her recent travels. She
claimed to have taken a taxi from El Paso to Juarez to visit her brother. But
she could not remember his address. She reiterated that she was returning to
El Paso to fly home to Tijuana. But she had not yet purchased a ticket. When
the agents confronted Molina about why she was carrying so much personal
clothing for such a short trip, she remained silent. And when the agents told
Molina that her story made little sense, she ended the interview and requested


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                                     No. 17-50070
a lawyer.
      Either at that point, or during the questioning, agents searched Molina’s
phone, looking at Uber and WhatsApp. 1 They did not ask for, and Molina did
not provide, consent for that search.          The agents found the following
(paraphrased) conversation on Molina’s WhatsApp:
      Molina advised RAUL that she was headed to El Paso, and
      requested [that] RAUL . . . send her the information for the Uber.
      MOLINA advise[d] RAUL that she had arrived in El Paso. RAUL
      responded that he sent her the information for the Uber. RAUL
      sent a picture [o]f a credit card, front and back, and told MOLINA
      to use that credit card information to pay for [the] Uber. RAUL
      sent information regarding a hotel located in Juarez, Mexico.
      RAUL directed MOLINA to Hotel Suites in Colonia Playas, Room
      #10, and advised MOLINA that the stuff [was] located there.
      MOLINA advised RAUL that she [had] arrived [at] the room but
      no one was there. RAUL stated he w[ould] get a hold of them.
      MOLINA then responded that the guy [had been] asleep [but had
      now] opened the door. RAUL sent another picture of a Southwest
      Airlines flight itinerary. The itinerary listed MOLINA as the
      passenger o[n] a flight departing El Paso at 5:15 P.M. with a final
      destination of Ft. Lauderdale, Florida. MOLINA advised RAUL
      that she got the stuff and was headed back to El Paso.
After the search, the government kept Molina’s phone but did not conduct a
more intrusive forensic search of it.
      A     grand   jury   charged    Molina   with    one    count   of   importing
methamphetamine and one count of possessing methamphetamine with the
intent to distribute. She moved to suppress the evidence obtained during the
cell phone search. The district court denied the motion to suppress, concluding
that Riley v. California did not extend to the border-search context. It also
observed that the most demanding requirement a court has required for any
type of border search is reasonable suspicion, which existed for the search of


      1WhatsApp is an internet-based messaging service that permits users to exchange
messages, make phone calls, and send images and videos.
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                                  No. 17-50070
Molina’s phone.
      The district court then held a stipulated bench trial as Molina wanted to
preserve her right to appeal the denial of the suppression motion. Molina was
found guilty on both counts and sentenced to five years in prison.
                                        II.
      We do not decide the Fourth Amendment question. The fruits of a search
need not be suppressed if the agents acted with the objectively reasonable
belief that their actions did not violate the Fourth Amendment. United States
v. Curtis, 635 F.3d 704, 713 (5th Cir. 2011) (citing United States v. Leon, 468
U.S. 897, 918 (1984)).    This is the so-called “good faith” exception to the
exclusionary rule. See Leon, 468 U.S. at 924–25 (making clear that courts may
apply the good-faith exception without deciding the underlying constitutional
issue). Even when the search is held unconstitutional, suppressing evidence
is not appropriate if the officers acted reasonably in light of the law existing at
the time of the search. Curtis, 635 F.3d at 713–14. In such circumstances, the
cost of suppression—excluding the evidence from the truth-finding process—
outweighs the deterrent effect suppression may have on police misconduct. See
Davis v. United States, 564 U.S. 229, 237–38 (2011).
      The agents searching Molina’s phone reasonably relied on the
longstanding and expansive authority of the government to search persons and
their effects at the border. The border-search doctrine has roots going back to
our founding era. See United States v. Flores-Montano, 541 U.S. 149, 153
(2004) (noting the Executive’s longstanding authority to conduct border
searches without probable cause or a warrant). The location of a search at the
border affects both sides of the reasonableness calculus that governs the
Fourth Amendment. United States v. Montoya de Hernandez, 473 U.S. 531,
538 (1985). The government’s interest is at its “zenith” because of its need to
prevent the entry of contraband, Flores-Montano, 541 U.S. at 152, and an
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                                 No. 17-50070
individual’s privacy expectations are lessened by the tradition of inspection
procedures at the border, Montoya de Hernandez, 473 U.S. at 537–38.
      The Supreme Court has thus allowed warrantless searches of mail and
gas tanks entering the United States. United States v. Ramsey, 431 U.S. 606,
624–25 (1977) (mail); Flores-Montano, 541 U.S. at 155–56 (gas tanks). It
permitted even the 16-hour warrantless detention of a woman at the border
whom customs officials reasonably suspected to be smuggling narcotics in her
alimentary canal. Montoya de Hernandez, 473 U.S. at 535, 541, 544. We have
held that officials at the border may cut open the lining of suitcases without
any suspicion, United States v. Chaplinski, 579 F.2d 373, 374 (5th Cir. 1978),
and that with reasonable suspicion they may strip search suspected drug
smugglers and drill into the body of a trailer, United States v. Afanador, 567
F.2d 1325, 1329 (5th Cir. 1978) (strip search); United States v. Rivas, 157 F.3d
364, 367 (5th Cir. 1998) (drilling into trailer). These cases establish that
routine border searches may be conducted without any suspicion. See id. at
367. So-called “nonroutine” searches need only reasonable suspicion, not the
higher threshold of probable cause. Id.; United States v. Kelly, 302 F.3d 291,
294 (5th Cir. 2002); United States v. Saboonchi, 48 F. Supp. 3d 815, 819 (D.
Md. 2014) (“Defendant has not cited to a single case holding that anything
more than reasonable suspicion was required to perform a search of even the
most invasive kind at the international border, and I have found none.”); see
also Wayne LeFave, SEARCH & SEIZURE: A TREATISE ON THE FOURTH
AMENDMENT § 10.5(a) n.11, 22. For border searches both routine and not, no
case has required a warrant. It is this border-search precedent that allowed
the scanning and searching of Molina’s suitcase during which the meth was
located, a search she rightly does not even challenge.
      As to the examination of her cell phone that she does contest, the agents
reasonably relied on this broad border-search authority. In terms of the level
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                                  No. 17-50070
of suspicion, they had probable cause to support the search, which is the
highest standard the Fourth Amendment requires even for searches occurring
in the interior. See Illinois v. Gates, 462 U.S. 213, 246 (1983) (recognizing that
even the search of a home, which enjoys the greatest Fourth Amendment
protection, requires only probable cause to support a warrant).         Customs
officials found a white crystal substance in a hidden compartment of Molina’s
luggage that field-tested positive for methamphetamine. Molina admitted that
no one could have placed the meth in that compartment without her
knowledge, though she gave no explanation for how it got there. She also could
not remember her brother’s address even though she had supposedly just been
there, had no plane ticket to Tijuana, and provided no explanation for why she
had so much personal clothing for such a short trip. This evidence made it
highly likely Molina was engaged in drug trafficking and created a fair
probability that the phone contained communications with the brother she
supposedly visited (or whoever was the actual source of the drugs) and other
information about her travel to refute the nonsensical story she had provided.
Indeed, the incriminating evidence obtained against Molina even before the
phone search was so strong that we doubt the information from WhatsApp was
needed to convict her. But the government used that evidence during the
bench trial and does not urge harmless error.
      The existence of probable cause means the only way Molina can show the
search was unlawful is if a warrant was required. But as we have already
explained, no court has ever required a warrant to support searches, even
nonroutine ones, that occur at the border.        Although our court had not
addressed border searches of an electronic device at the time of this search, a
number of circuits had and none had required a warrant. See, e.g., United
States v. Stewart, 729 F3d. 517, 525–26 (6th Cir. 2013); United States v.
Cotterman, 709 F.3d 952, 962 (9th Cir. 2013) (en banc); United States v. Ickes,
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                                 No. 17-50070
393 F.3d 501, 504 (4th Cir. 2005); United States v. Linarez-Delgado, 259 F.
App’x 506, 508 (3d Cir. 2007).
      Molina argues that Riley changes all that. Although most circuits to
decide the issue had applied the search-incident-to-arrest doctrine to cell
phones, the Supreme Court took a different view. 134 S. Ct. at 2493. In doing
so, it relied on the heightened privacy interest in smart phones given their
immense storage capacity and the inapplicability of the traditional search-
incident-to-arrest rationale to these searches. Id. at 2488–89. But Riley left
open the possibility that “other case-specific exceptions may still justify a
warrantless search of a particular phone.” Id. at 2494.
      That caveat means it was reasonable for the agents to continue to rely
on the robust body of pre-Riley caselaw that allowed warrantless border
searches of computers and cell phones. What is more, not a single court
addressing border searches of computers since Riley has read it to require a
warrant. See, e.g., United States v. Escarcega, 685 F. App’x 354, 354 (5th Cir.
2017); United States v. Gonzalez, 658 F. App’x 867, 870 (9th Cir. 2016); United
States v. Kolsuz, 185 F. Supp. 3d 843, 852 (E.D. Va. 2016); United States v.
Caballero, 178 F. Supp. 3d 1008, 1018 (S.D. Cal. 2016); United States v. Feiten,
2016 WL 894452, at *6 (E.D. Mich. Mar. 9, 2016); United States v. Blue, 2015
WL 1519159, at *2 (N.D. Ga. Apr. 1, 2015). Although what ultimately matters
is the reasonableness of the officers’ actions at the time of the search, it is
telling that no post-Riley decision issued either before or after this search has
required a warrant for a border search of an electronic device. Also noteworthy
is that the leading Fourth Amendment treatise continues to include searches
of “a laptop or other personal electronic storage devices,” among the types of
border searches that may be made “without first obtaining a search warrant
and without establishing probable cause.” LeFave, supra, § 10.5(a) (quoting
United States v. Arnold, 533 F.3d 1003, 1008 (9th Cir. 2008)).           LeFave
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recognizes that “Riley may prompt a reassessment” of border searches of
computers but “doubt[s] that Riley will be deemed to foreclose all warrantless
computer searches at the border.” Id. n.22. If federal judges and a leading
Fourth Amendment scholar do not believe Riley overrides the caselaw allowing
warrantless border searches of cell phones (especially nonforensic ones), it is
reasonable for government agents to take the same view until something
changes. 2
       The bottom line is that only two of the many federal cases addressing
border searches of electronic devices have ever required any level of suspicion.
They both required only reasonable suspicion and that was for the more
intrusive forensic search. See Cotterman, 709 F.3d at 962; United States v.
Saboonchi, 990 F. Supp. 2d 536, 569–70 (D. Md. 2014). 3 Here we have a
manual, sometimes called “cursory” in the caselaw, search of a phone. And
neither Cotterman nor Saboonchi required a warrant even for forensic searches
occurring at the border. The latter concluded that “the border search exception
[was] unaffected by Riley” when a motion for reconsideration relied on that


       2  In addition to arguing that the reasoning of Riley should result in a warrant
requirement for border searches of cell phones, Molina argues that a warrant was required
because after the discovery of the meth the incident transformed from a border encounter
into a law enforcement investigation. But she cites no case making this distinction and there
is caselaw rejecting it. See, e.g., Ickes, 393 F.3d at 507 (holding that the postarrest search of
laptop was a border search); Kolsuz, 185 F. Supp. 3d at 851 (same post-Riley); Caballero, 178
F. Supp. 3d at 1016–17 (recognizing some logic to this argument but rejecting it under
existing caselaw). Judged again from the standpoint of the good-faith exception, it was
reasonable for the agents to believe their border-search authority extended past the discovery
of the meth, especially given how little time elapsed between that discovery and the phone
search.
        3 A third case, United States v. Kim, found the search of a laptop computer using

forensic software for the purpose of gathering evidence in a preexisting investigation
supported by “so little suspicion of ongoing or imminent criminal activity” and so
disconnected from the considerations underpinning the government’s border-search
authority and “also the border itself” that it was unreasonable. 103 F. Supp. 3d 32, 59 (D.D.C.
2015). As to that final point, the computer in Kim was seized as the defendant was leaving
the country and the forensic search of the computer was conducted later after the computer
was sent to a forensic specialist. So it is not like the typical border-search case.
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                                No. 17-50070
recent Supreme Court decision. Saboonchi, 48 F. Supp. 3d at 817. Given the
state of the law when agents looked at the apps on Molina’s phone, it was
eminently reasonable for them to think that the probable cause they had to
believe it contained evidence of drug crimes made the search a lawful one.
                                    ***
     Because the officers acted in good faith in searching the phone, the
judgement of the district court is AFFIRMED.




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                                       No. 17-50070
GREGG COSTA, Circuit Judge, specially concurring:
      Courts should resist the temptation to frequently rest their Fourth
Amendment decisions on the safe haven of the good-faith exception, lest the
courts fail to give law enforcement and the public the guidance needed to
regulate their frequent interactions. Davis v. United States, 564 U.S. 229, 245–
46 (2011) (recognizing concerns that overreliance on the good-faith exception
risks “stunt[ing] the development of Fourth Amendment law”); cf. Pearson v.
Callahan, 555 U.S. 223, 236 (2009) (giving courts discretion to grant qualified
immunity based only on the “clearly established” inquiry but noting that
deciding the underlying constitutional question is “often beneficial”).            But
reliance on good faith is particularly appropriate for the question this case
raises about the application of the border-search doctrine to the modern cell
phones that a large number of the hundreds of millions of people entering the
United States each year carry with them. 1 For one thing, the existence of good
faith is not a close call. Cf. Pearson, 555 U.S. at 239 (recognizing in the
analogous     two-step     qualified     immunity     context    that   avoiding    the
constitutional question will often be appropriate when the “clearly established”
question can be “quickly and easily decide[d]”).            As the majority opinion
explains, the government had probable cause for the manual search of Molina’s
phone. Maj. Op. at 6. The lesser threshold of reasonable suspicion is the
highest showing any court of appeals has required for a border search of an
electronic device, and that was for a more intrusive forensic search. See United
States v. Cotterman, 709 F.3d 952, 962 (9th Cir. 2013) (en banc). And no
reported federal decision has required a warrant for any border search.



      1  U.S. Dep’t of Homeland Sec., CIVIL RIGHTS/CIVIL LIBERTIES IMPACT ASSESSMENT:
BORDER SEARCHES OF ELECTRONIC DEVICES 1 (2011), https://www.dhs.gov/sites/default/files/
publications/Redacted%20Report.pdf (noting that in 2010 an average of nearly 30 million
travelers entered the United States each month).
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Against this lack of support for Molina’s position are numerous cases allowing
warrantless, often suspicionless, searches of digital devices at the border. See
Maj. Op. at 7–9.
        Also counseling against deciding the constitutional issue is the risk of
announcing general principles that would fix precedent in a rapidly changing
area.       The Supreme Court is currently considering yet another case that
addresses how to apply longstanding principles of the Fourth Amendment—
this time the “third-party doctrine”—to new communications technology.
United States v. Carpenter, 819 F.3d 880, 884, 886 (6th Cir. 2016) (evaluating
whether the collection of cell-site data from wireless carriers violates the
Fourth Amendment), cert. granted, 137 S. Ct. 2211 (2017).                      Government
policies on border searches are also changing; the same day this case was
argued the Department of Homeland Security issued a new policy regulating
border searches of computers and cell phones.                  U.S. Customs & Border
Protection, CBP Directive No. 3340-049A, Border Search of Electronic Devices
(2018),        https://www.cbp.gov/sites/default/files/assets/documents/2018-Jan/
CBP-Directive-3340-049A-Border-Search-of-Electronic-Media-
Compliant.pdf. 2 And, of course, the capabilities of technology are constantly
evolving.
        Some or all of these developments may influence the ultimate
determination of how the government’s venerable border-search authority
applies to electronic devices. Although the good-faith exception presents an
easy question in light of existing caselaw, deciding the standard that applies


        2Under the new policy, customs officers are permitted to conduct “basic” searches of
digital devices at the border without suspicion. CBP Directive No. 3340-049A, supra, at 4. A
basic search includes the examination of information kept on the device itself that is
accessible without a wired or wireless connection. Id. at 4–5. By contrast, a customs officer
can conduct an “advanced” search, in which external equipment is connected to the device, to
review, copy, or analyze the contents of that device only with reasonable suspicion of activity
that violates the customs laws or poses a threat to national security. Id. at 5.
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to border searches of digital devices is not so clear cut. In declining to apply to
cell    phones    the    search-incident-to-arrest       exception      to   the    warrant
requirement, Riley v. California focused on the inapplicability of that doctrine’s
rationales—the protection of police officers and preventing the destruction of
evidence—to phone searches at the scene of an arrest. 134 S. Ct. 2473, 2485–
87 (2014). It also emphasized the immense storage capacity of modern cell
phones. Id. at 2489. Molina also highlights that capacity in arguing that cell
phones should be treated differently from other objects at the border.
         But if the expansiveness of cell phones’ memory is what has led the
Supreme Court to provide these devices increased protection in some Fourth
Amendment areas, the best argument for carving them out of the government’s
traditional border-search authority is the physical limitations of their capacity.
Most contraband, the drugs in this case being an example, cannot be stored
within the data of a cell phone. 3 Detection of such contraband is the strongest
historic rationale for the border-search exception. United States v. Montoya de
Hernandez, 473 U.S. 531, 537 (1985) (“Since the founding of our Republic,
Congress has granted the Executive plenary authority to conduct routine
searches and seizures at the border, without probable cause or a warrant, in
order to regulate the collection of duties and to prevent the introduction of
contraband into this country.”); United States v. Ramsey, 431 U.S. 606, 619
(1977) (“Historically such broad powers have been necessary to prevent
smuggling and to prevent prohibited articles from entry.” (quoting United
States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 125 (1973))); United States v.
Thirty-Seven Photographs, 402 U.S. 363, 376 (1971) (explaining that customs




         One type of contraband that can be stored within the data of a cell phone or computer
         3

is child pornography. See, e.g., United States v. Cotterman, 709 F.3d 952, 958–59 (9th Cir.
2013) (en banc) (noting that agents discovered child pornography during the search of a
laptop seized at the border).
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                                       No. 17-50070

officials’ authority to search luggage is “an old practice and is intimately
associated with excluding illegal articles from the country”).                   The First
Congress authorized customs officials to search for and seize “goods, wares,
and merchandises” that may be concealed in ships entering the country to
avoid duties; it did not provide that authority to obtain evidence of crimes other
than the contraband itself. Act of July 31, 1789, 1 Stat. 29. The Supreme
Court has long cited that statute, passed by the same Congress that proposed
the Fourth Amendment, as a reason why warrantless border searches are not
“unreasonable” within the meaning of the Constitution. Boyd v. United States,
116 U.S. 616, 623–24 (1886); see also Ramsey, 431 U.S. at 617; Carroll v. United
States, 267 U.S. 132, 150–51 (1925). 4 The modern version of this customs law
is also limited to the search and seizure of actual objects that are being
imported unlawfully. See 19 U.S.C. § 482(a). And every border-search case
the Supreme Court has decided involved searches to locate items being
smuggled into the country, whether those objects were hidden in mail, Ramsey,
431 U.S. at 624–25, a gas tank, United States v. Flores-Montano, 541 U.S. 149,
155–56 (2004), or a stomach, Montoya de Hernandez, 473 U.S. at 544.
       As    the    district   court     recognized,     this    detection-of-contraband
justification would not seem to apply to an electronic search of a cell phone or
computer. 5 But other considerations may still support giving government
agents more leeway in searching technology at the border as opposed to inside
the country. One is that the “expectation of privacy [is] less at the border than


       4 Also notable is that the statute, though cited as part of the pedigree supporting
suspicionless border searches, only gives collectors the power to enter ships “in which they
shall have reason to suspect any goods, wares or merchandise subject to duty shall be
concealed.” Act of July 31, 1789, 1 Stat. 43 (emphasis added).
       5 To the extent that drugs or other contraband can be hidden physically in a phone or

computer, a physical search or x-ray of the device is seemingly no different from the search
of any other object, such as luggage. But that would not involve access to the “broad array of
private information” that a manual or forensic search of the phone’s data would reveal, which
is what heightens the privacy interest for electronic devices. Riley, 134 S. Ct. at 2491.
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in the interior.” Montoya de Hernandez, 473 U.S. at 539–40 (citing Carroll,
267 U.S. at 154). Yet even if that reduced privacy interest might support
lowering the thresholds ordinarily required for searches, it is doubtful that side
of the equation on its own would support searches at the border that require
neither a warrant nor suspicion. Cf. Riley, 134 S. Ct. at 2488 (“The fact that
an arrestee has diminished privacy interests does not mean that the Fourth
Amendment falls out of the picture entirely.”).       To get to that position of
essentially unlimited government authority for routine border searches, the
Supreme Court has put more emphasis on the other side of the Fourth
Amendment balance: the government’s heightened interest at the border. See
id. at 538–40 (noting the reduced privacy interest at the border but reiterating
the strong government interest). If contraband is not being electronically
concealed in phones and computers, does the government still have as
compelling an interest in searching those items at the border? The government
argues it does because the interests in national security and fighting crime are
especially weighty at the border and searches of technology can uncover
evidence of border crimes. No doubt a text message or email may reveal
evidence of crimes, but that is true both at and inside the border. But it is
uncertain whether the evidence-gathering justification is so much stronger at
the border that it supports warrantless and suspicionless searches of the
phones of the millions crossing it. The Supreme Court has not focused on it in
discussing the broad border-search authority, instead emphasizing the historic
rationale of finding contraband.
      There may a clue to resolving this dilemma in the earliest case that gets
cited for the constitutionality of border searches; it also happens to be the first




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                                       No. 17-50070

Supreme Court case addressing any aspect of the Fourth Amendment. 6 Boyd
v. United States draws a sharp distinction between searches for contraband
and those for evidence that may reveal the importation of contraband. In
finding unconstitutional a revenue law that allowed subpoenas for a customs
invoice, Boyd observes that:
       The search for and seizure of stolen or forfeited goods, or goods
       liable to duties and concealed to avoid the payment thereof, are
       totally different things from a search for and seizure of a man’s
       private books and papers for the purpose of obtaining information
       therein contained, or of using them as evidence against him. The
       two things differ toto coelo.
116 U.S. at 623. But see Warden v. Hayden, 387 U.S. 294, 300–01 (1967)
(rejecting a Fourth Amendment distinction between “seizure of items of
evidential value only and seizure of instrumentalities, fruits, or contraband”). 7
In explaining why the two searches differ to the “whole extent of the heavens”


       6  Wayne LeFave, SEARCH & SEIZURE: A TREATISE ON THE FOURTH AMENDMENT
§ 1.1(b); see also Carroll, 267 U.S. at 147 (calling Boyd “[t]he leading case on the subject of
search and seizure”).
        7 Hayden rejects the “mere evidence” rule that had long prevented the government

from using warrants to obtain evidence that was not itself the instrumentality of a crime or
contraband. 387 U.S. at 301–02 (citing and casting doubt on this aspect of Gouled v. United
States, 255 U.S. 298, 309 (1921)). The idea was that the authority to seize property extended
only to objects in which the subject of the search had forfeited an interest to the government
because of the item’s illegality. Gouled, 255 U.S. at 309; see also Hayden, 387 U.S. at 303
(“The Fourth Amendment ruling in Gouled was based upon the dual, related premises that
historically the right to search for and seize property depended upon the assertion by the
Government of a valid claim of superior interest, and that it was not enough that the purpose
of the search and seizure was to obtain evidence to use in apprehending and convicting
criminals.”).     Although Hayden is viewed as a broad rejection of the “mere
evidence”/instrumentality distinction, see LeFave, supra, § 4.1(c), there are reasons to believe
the distinction still matters when it comes to border searches. Most importantly, in a number
of decisions since Hayden the Supreme Court has continued to chiefly rely on the detection-
of-contraband rationale in supporting the government’s broad border-search authority. That
makes sense as seizing contraband was the power granted in the customs law passed by the
First Congress that the Court has repeatedly relied on in authorizing warrantless searches
of those entering the country. From a broader jurisprudential perspective, Hayden rejected
the distinction as one based on a “discredited” property view of the Fourth Amendment, 387
U.S. at 304, see LeFave, supra, § 2.6(e), but that approach is enjoying a resurgence, see, e.g.,
Florida v. Jardines, 569 U.S. 1, 5 (2013); United States v. Jones, 565 U.S. 400, 404–05 (2012).
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in the meaning of the Latin phrase used, the Boyd Court noted that the seizure
of goods “concealed to avoid the duties payable on them[] has been authorized
by English statutes for at least two centuries past; and the like seizures have
been authorized by our own revenue acts from the commencement of the
government.”       116 U.S. at 623.      No similar tradition exists for unlimited
authority to search and seize items that might help to prove border crimes but
are not themselves instrumentalities of the crime. To be sure, Boyd addresses
a government attempt to obtain import invoices not at the border but via a
subpoena during a prosecution (and the Fifth Amendment aspects of its
holding are no longer good law 8). But its emphatic distinction between the
sovereign’s historic interest in seizing imported contraband and its lesser
interest in seizing records revealing unlawful importation has potential
ramifications for the application of the border-search authority to electronic
data that cannot conceal contraband and that, to a much greater degree than
the papers in Boyd, contains information that is “like an extension of the
individual’s mind” and works as a “substitute for the perfect memory that
humans lack.” Samuel A. Alito, Jr., Documents and the Privilege Against Self-
Incrimination, 48 U. PITT. L. REV. 27, 39 (1986) (referring to this last insight
as a “kernel of truth” from Boyd).
           The contours of the border-search doctrine in this new area—what level
of suspicion, if any, is required and whether a warrant is ever required—may
well turn on whether the interest at the border in general crime fighting and
national security, which phone searches can further, is as weighty as the
traditional justification of seizing contraband, which an electronic search is not
likely to accomplish. Because the Supreme Court has not said much about this



       8 See Andresen v. Maryland, 427 U.S. 463, 471–72 (1976); Fisher v. United States, 425
U.S. 391, 407–08 (1976); see also Samuel A. Alito, Jr., Documents and the Privilege Against
Self-Incrimination, 48 U. PITT. L. REV. 27, 43–44 (1986).
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alternative justification the government cites, future developments may
provide guidance. That counsels for not freezing our approach in place when
we don’t have to.




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