Everything’s different at the border. CBP and ICE are entrusted with keeping us safe from enemies, both foreign and domestic, at least when it comes to those who have the temerity to present themselves at a port of entry for inspection.
As many folks know, the government gets a special tool at the border. The Fourth Amendment is particularly hamstrung by federal law and regulations when it comes to “routine” searches at the border, meaning that border agents can go through your stuff without a warrant or probable cause. CBP applies this to anywhere within 100 miles of the United State’s external boundaries, and that can affect over 200 million people. For those foolish enough to live in a place like Florida, their entire home state can be a “constitution-free zone.”
The government strongly believes that cell phones are no exception to warrantless border searches, notwithstanding the fact that a traveler’s cell phone data “can provide a kaleidoscopic view of the user’s whole life.” That phrase is from EDNY District Judge Nina R. Morrison’s Order, partly granting defendant Kubornali Sultanov’s move to suppress evidence obtained at JFK from his interview by border agents and their search of his cellphone:
It is one thing for courts to give border officials the authority to briefly detain and question air travelers and search their physical belongings based on something more than a “hunch” but “‘obviously less’ than is necessary for probable cause.” Navarette, 572 U.S. at 397 (citations omitted). But it is an entirely different matter for courts to exempt those agents from the Fourth Amendment’s probable cause and warrant requirements in the vastly more intrusive context of a cell phone search, which can reveal “[t]he sum of an individual’s private life.” Riley, 573 U.S. at 394. Doing so would, in this Court’s view, strain the Fourth Amendment’s “reasonableness” requirement far beyond the bounds of Terry and its progeny.
Sultanov’s case arose of his arrival at JFK back from his native Uzbekistan, after someone had tipped off TSA with a TECS hit for a tip for suspected child pornography on his cell phone. Border agents put him in secondary inspection, asked him for the password to his phone, and he gave it. The circumstances of how he gave up his password, why he spoke to them about his trip and the contents of his cell phone will vary, depending on who you ask.
What matters is that a manual search of Sultanov’s cell phone by agents with no warrant or probable cause, along with his interview, gave the government enough to indict him for possession of child pornography. He moved to suppress that evidence, arguing that the border “routine search” exception to the Fourth Amendment does not apply to cell phones, and that he was subject to a custodial interrogation at CBP without proper Miranda warnings. As Judge Morrison stated, neither SCOTUS nor the Second Circuit has addressed the search exception when it comes to cell phones.
Upon arrival and the confiscation of his phone, Sultanov was given a CBP tear sheet, which is a cheat sheet given to those wretched, luckless travelers who are given the privilege of having their electronic devices inspected by CBP and its friends. The reason for inspection can be good, bad or no reason at all. A border agent’s version of the Miranda card that street cops carry around, just in case.
A passenger also needs no particular reason to decline consent for such searches, as they can keep your phone for the time being anyway (also while one follows the platinum safety rule of comply now, complain later), but something from CBP Agent Pichardo’s testimony during the suppression hearing really stuck out, and it made me sad:
Pichardo testified that he has never had a single traveler refuse to surrender her phone or passcode when asked. And because no traveler has ever declined to allow CBP to inspect the contents of her cell phone, he has never requested a supervisor’s assistance, nor has he ever seen one of his fellow officers do so. Pichardo explained, “[t]ypically, passengers are very compliant, they are very giving, and they will provide passwords, so — in all my time in secondary, I have never seen that happen.”
I don’t want to believe him when he says that, but I do. But more importantly, Judge Morrison considered the magnitude and diversity of data that folks carry around in a cell phone, when ruling that agents going through Sultanov’s phone was not a routine search, and that the categorical border search exception to the Fourth Amendment’s warrant requirement does not apply:
In Sokolow, Justice Brennan famously detailed the innocuous and inconsistent factors that various courts had relied upon to uphold law enforcement’s claims that they had reasonable suspicion to detainsuspected drug couriers at airports: the suspect was first to deplane, last to deplane, or deplaned from the middle; the suspect purchased one-way tickets or round-trip tickets; the suspect flew on a nonstop flight or changed planes; the suspect flew with no luggage, light luggage, or new luggage; the suspect traveled alone or traveled with a companion; and the suspect acted nervously or acted too calmly. 490 U.S. at 13–14 (Brennan, J., dissenting). The list is all too reminiscent of CBP Officer Pichardo’s testimony in this case regarding some of what he characterized as the “derogatory” factors that permit him and his fellow agents at JFK to search travelers’ cell phones and other electronic devices: for example, whether the traveler has traveled to or from anywhere “in Europe,” any country that has “political difficulties,” or any country the United States government is “looking at for intelligence.”
Agree with Judge Morrison or not, her order is particularly thorough and very well-reasoned. This is the stuff we need when courts are the only stop-gap to play catch-up “with the times” and reduce harm, whether that involves the drug du jour, the death penalty, “career” criminals, and stuff like that.
As for Sultanov, his story has a sad ending, at least for now. The jury still got to see the fruits CBP’s search of his phone because of the good faith exception, and he ended up with a one-word verdict. But never forget that some of the people you find unsavory end up creating precedents that protect our interests, liberty being no exception.