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Border Searches & Digital Devices: Case List

Courts have long made it clear that agents can search the bags of people entering the country. For the past decade or so, U.S. Customs and Border Protection (CBP) has applied that logic to digital devices. NACDL members are uniquely exposed to abuse in this context: digital devices store materials and information subject to the attorney-client privilege and attorney work-product doctrine, as well as information on overseas clients and witnesses, and other extremely sensitive materials that could be covered by Rule 1.6 of the Model Rules of Professional Responsibility.

NACDL has compiled a resource of district court cases that deal with the border search exception and digital devices, with special attention paid to challenges to digital searches after the landmark Riley v. California decision. The case list accompanies a primer to educate attorneys about the implications of CBP's claimed powers and offer strategies that will help them comply with their ethical obligations and responsibilities to their clients when entering the U.S. You can read "Protecting Your Digital Devices at the Border: A Criminal Defense Lawyer’s Primer" here.
 

Pending cases of interest

 • United States v. Kolsuz, No. 16-4687 (4th Cir.) 
      • See NACDL amicus brief.
 • United States v. Molina-Isidoro, No. 17-50070 (5th Cir.)
      • See NACDL amicus brief.
 • United States v. Vergara, No. 16-15059 (11th Cir.)
 • Alasaad v. Duke, No. 17-cv-11730 (D. Mass.)

First Circuit

  • United States v. Hampe, 2007 WL 1192365 (D. Me. 2007)
  • Cancel–Rios v. United States, 2010 WL 3420805, (D.P.R. 2010)
  • House v. Napolitano, 2012 WL 1038816 (D. Mass. 2012)
  • United States v. Molina-Gomez, 781 F.3d 13(1st Cir. 2015)
    • No mention of Riley. 
     

Second Circuit

  • United States v. Irving, 2003 WL 22127913 (S.D. N.Y. 2003)
  • United States v. Rogozin, 2010 WL 4628520 (W.D. N.Y. 2010)
  • United States v. Dattmore, 2013 WL 4718614 (W.D. N.Y. 2013)
  • United States v. Young, 2013 WL 885288 (W.D. N.Y. 2013)
  • Abidor v. Napolitano, 990 F.Supp.2d 260 (E.D. N.Y. 2013)
  • United States v. Djibo, 151 F.Supp.3d 297 (E.D. N.Y. 2015)
    • Cites Riley in the suppression of documents “obtained by virtue of Djibo providing his passcode [to his cellphone]” at *310 in rejecting the government’s application of U.S. v. Patane. 
     

Third Circuit

  • United States v. Bunty, 617 F.Supp.2d 359 (E.D. Penn. 2008)

Fourth Circuit

  • United States v. Ickes, 393 F.3d 501 (4th Cir. 2005)
  • United States v. Saboonchi, 990 F.Supp.2d 536 (D. Md. 2014)
    • Decided before Riley; defendant filed for reconsideration following Riley decision.
    • In denying reconsideration: “An invasive and warrantless border search may occur on no more than reasonable suspicion [citation omitted] and nothing in Riley appears to have changed that.” U.S. v. Saboonchi, 48 F.Supp.3d 815, 819 (D. Md. 2014). 
     
  • United States v. Kolsuz, 185 F. Supp. 3d 843 (E.D. Va. 2016)
    • “[T]he post-arrest, off-site forensic search of defendant’s iPhone is not governed by Riley, but is instead a border search[.]” at 852.
     

Fifth Circuit

  • United States v. Roberts, 274 F.3d 1007 (5th Cir. 2001)
  • United States v. Pickett, 598 F.3d 231 (5th Cir. 2010)
  • United States v. Thompson, 53 F.Supp.3d 919 (W.D. La. 2014)
    • No Riley.  
     
  • United States v. Valencia, 2014 WL 12650128 (S.D. Tex. 2014)
    • “Undoubtedly, the cell phone searches at issue were no less intrusive than the search in Riley. What is different, however, is that the searches here were conducted at the border, where the government's interest in self-protection outweighs an individual's privacy interests.” at *7. 
     
  • United States v. Molina-Isidoro, 2016 WL 8138926 (W.D. Tex. 2016)
    • “The Court finds that Riley did not disturb the well-recognized border search exception. Consequently, the Court holds that the CBP Officer's preliminary search of her cell phone was reasonable and did not violate her Fourth Amendment rights for the following reasons.” at *4. 
     
  • United States v. Escarcega, 2017 WL 1380555 (5th Cir. 2017) (Unpublished)
    • Held that Riley did not apply under border search exception.
     

Sixth Circuit

  • United States v. Laich, 2010 WL 259041 (E.D. Mich. 2010)
  • United States v. Stewart, 729 F.3d 517 (6th Cir. 2013)
  • United States v. Feiten, 2016 WL 894452 (E.D. Mich. 2016)
    • Suppression denied, despite Riley: “Merely because a large container is presented at the border, the government's right to inspect its contents is not diminished as compared to its right to inspect a comparatively small container.” at 6.
     

Seventh Circuit

  • United States v. Wanjiku, 2017 WL 1304087 (N.D. Ill. 2017)
    • “While […] I[] agree that the Court's decision in Riley rejects the government's claim that searches of cell phones or other electronic devices are analytically equivalent to searches of physical items, and may indeed suggest the Court's willingness to reevaluate, in the age of modern cell phones, whether the balance of interests should continue to be “struck much more favorably to the Government at the border” where digital searches are concerned, I conclude that this is not the appropriate case in which to wrestle these difficult issues to the ground. Instead, I deny defendant's motion on the ground that the information available to the government at the time it initiated the searches of Mr. Wanjiku's electronic devices was sufficient to trigger a reasonable suspicion that he was involved in the kind of criminal activity targeted by Operation Culprit.” at 5.
     

Eighth Circuit

  • United States v. Minnesota, 2006 WL 3330726 (D. Minn. 2006)
  • United States v. Smasal, 2015 WL 4622246 (D. Minn. 2015)
  • United States v. McConnell, 2017 WL 396538 (D. Minn. 2017)
    • No Riley. 
     

Ninth Circuit

  • United States v. Romm, 455 F.3d 990 (9th Cir. 2006)
  • United States v. Arnold, 523 F.3d 941 (9th Cir. 2008)
  • United States v. Singh, 295 Fed.Appx. 190 (9th Cir. 2008)
  • United States v. Kyle, 2011 WL 176038 (N.D. Cal. 2011)
  • United States v. Cotterman,709 F.3d 952 (9th Cir. 2013)
  • Kennedy v. United States, 2014 WL 954872 (W.D. Wash. 2014)
  • United States v. Martinez, 2014 WL 3671271 (S.D. Cal. 2014)
    • In denying suppression, cites Riley but does not discuss.
     
  • United States v. Camou, 773 F.3d 932 (9th Cir. 2014)
    • In allowing suppression, “[g]iven the Court's extensive analysis of cell phones as “containers” and cell phone searches in the vehicle context, we find no reason not to extend the reasoning in Riley from the search incident to arrest exception to the vehicle exception.” at 943. 
     
  • United States v. Alonso-Castaneda, 2015 WL 10767481 (D. Ariz. 2015)
    • In denying suppression, “[t]o apply Riley (and the portions of Camou based upon it) to the search here would effectively require agents and prosecutors to foresee in advance the course of technology and the law that later addresses it.” at 4. 
     
  • United States v. Hernandez, 2016 WL 471943 (S.D. Cal. 2016).
    • In denying suppression, declined to extend Riley: “However, although the Court did hold in Riley that the police generally may not, without a warrant, search digital information on a cell phone seized from an individual incident to arrest, the Court gave no indication that Riley's holding applied to the border search exception.” at 5. 
     
  • United States v. Leininger, 2016 WL 6476310 (S.D. Cal. 2016)
    • No Riley.  
     
  • United States v. Lopez, 2016 WL 7370030 (S.D. Cal. 2016)
    • In denying suppression, “Balancing the location and timing of the search [before Riley handed down], the limited nature and intrusiveness of the search, and the ample evidence of criminal activity, this Court concludes that the warrantless border search of the Defendant's electronic devices in this case was reasonable.” 
     
  • United States v. Fuentes, 2016 WL 8730549 (S.D. Cal. 2016)
    • In denying suppression: “Riley did not involve a search at the border and thus is not clearly irreconcilable with Cotterman. Therefore, the Court believes it is bound by Cotterman and concludes that the limited search of Defendant's cell phones at the border was reasonable.” at 1. 
     
  • United States v. Caballero, 178 F.Supp.3d 1008 (S.D. Cal. 2016)
    • “If it could, this Court would apply Riley” at 1017, but “[b]ecause the cases are not clearly irreconcilable, this Court is bound by the en banc decision in Cotterman, which requires neither warrant nor reasonable suspicion to justify a manual cursory search of a digital device being brought across an international border” at 1020. 
     
  • United States v. Ramos, 190 F.Supp.3d 992 (S.D. Cal. 2016)
    • In denying suppression, “Riley made no reference to the border search exception or any other case-specific exceptions to the warrant requirement previously announced by the Supreme Court, suggesting that the Supreme Court had every intention to limit its holding to searches incident to arrest.” at 1002. 
     
  • United States v. Cano, 222 F. Supp. 3d 876 (S.D. Cal. 2016)
    • In denying suppression: “As already discussed above, Riley did not address the border search exception, but instead based its holding on the search incident to arrest exception. The Court is aware of no case, post-Riley, that applies its holding to searches of cell phones conducted at the border. In fact, as already noted, there are several courts in this District that have upheld a warrantless, post-arrest, search of a defendant's cell phone pursuant to the border search *883 doctrine. The Court therefore finds that the agents in this case searched Defendant's cell phone in reliance on the border search doctrine. The good faith exception to the exclusionary rule thus applies.” at 882. 
     
  • United States v. Mendez, 2017 WL 928460 (D. Ariz. 2017)
    • In denying suppression, “Riley did not address whether a warrant is required for the manual search of a cell phone at the border, but under the balancing test set forth in Riley this Court concludes that a warrant was not required in order for Agent Woods to manually search Defendant's cell phone.” at 2.
     

Tenth Circuit

  • United States v. Alabi, 597 Fed. Appx. 991 (10th Cir. 2015)
    • No Riley. 
     

Eleventh Circuit

  • United States v. Joseph, 2012 WL 163886 (S.D. Fla. 2012)
  • United States v. Wallace, 2013 WL 1707904 (N.D. Ga. 2013)
  • United States v. Touset, 2016 WL 1048047 (N.D. Ga. 2016)
    • Appellant brief cites district court’s failure to consider Riley.  
     

D.C. Circuit

  • United States v. Hassanshahi, 75 F.Supp.3d 101 (D. D.C. 2014)
    • No Riley.  
     
  • United States v. Kim, 103 F. Supp.3d 32 (D.D.C. 2015)
    • “Applying the Riley framework, the national security concerns that underlie the enforcement of export control regulations at the border must be balanced against the degree to which Kim's privacy was invaded in this instance. […] [T]his search was qualitatively and quantitatively different from a routine border examination, and therefore, it was unreasonable given the paucity of grounds to suspect that criminal activity was in progress.” at 56, 57. 
     
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