United States v. Marcos Mendez

103 F.4th 1303

• Court: Court of Appeals for the Seventh Circuit
• Decided: June 10, 2024
• Docket: 23-1460
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 23-1460 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

MARCOS MENDEZ, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 16-cr-163 — Mary M. Rowland, Judge. ____________________

ARGUED DECEMBER 5, 2023 — DECIDED JUNE 10, 2024 ____________________

Before HAMILTON, BRENNAN, and ST. EVE, Circuit Judges. ST. EVE, Circuit Judge. Marcos Mendez was passing through customs at O’Hare International Airport after a trip abroad when a customs agent pulled him aside for inspection, unlocked and scrolled through his cell phone, and found child pornography in the photo gallery. Customs agents then seized the phone, downloaded its contents, and discovered additional illicit images and videos of children. 2 No. 23-1460

After the district court denied Mendez’s motion to sup- press this evidence, Mendez pled guilty to producing child pornography but preserved this appeal of the district court’s suppression-motion ruling. He now argues that the searches of his phone, in light of the Supreme Court’s decisions in Riley v. California, 573 U.S. 373 (2014), and Carpenter v. United States, 585 U.S. 296 (2018), required a warrant, probable cause, or at least reasonable suspicion. The “longstanding recognition that searches at our bor- ders without probable cause and without a warrant are none- theless ‘reasonable’ has a history as old as the Fourth Amend- ment itself.” United States v. Ramsey, 431 U.S. 606, 619 (1977). That history leads us to join the uniform view of our sister circuits to hold that searches of electronics at the border—like any other border search—do not require a warrant or proba- ble cause, and that the kind of routine, manual search of the phone initially performed here requires no individualized suspicion. We affirm. I. Background A. Factual Background Just shy of midnight on February 20, 2016, Marcos Mendez landed at O’Hare International Airport following a trip to Ec- uador. He was traveling alone. Along with his baggage, Men- dez carried with him three electronic devices: a personal cell phone, a work phone, and a work iPad. Customs and Border Protection (“CBP”) had issued a child-pornography-related “lookout” for Mendez based on his arrest record and prior travel history. Mendez had a 2010 arrest relating to indecent solicitation of a child and child por- nography, leading to a 2011 conviction for endangering the No. 23-1460 3

life or health of a child. Additionally, CBP previously had in- spected Mendez in 2014 after he returned from Mexico. Dur- ing that inspection, he claimed to have been kidnapped, robbed of his electronic devices, and told to leave the country. And on this particular trip, Mendez was returning from Ecua- dor, which CBP officers classified as a potential child-traffick- ing source country. Mendez also fit the profile for child-por- nography offenders: a single adult male traveling alone. Together, this information prompted CBP Investigating Officer Richard Callison to pull Mendez aside for secondary inspection after his arrival at O’Hare. Within the first thirty minutes of the inspection, Mendez gave Callison his cell phone and its passcode. Callison manually unlocked the phone and navigated to its camera roll. There he found thou- sands of pornographic images, including what appeared to be child pornography. Using the phone’s passcode, Callison also opened a protected application called “iSafe,” where he dis- covered more illicit images. Callison then moved Mendez to a private location, where he conducted a more extensive, “forensic” examination of Mendez’s devices. CBP agents used a data extraction technol- ogy called “DOMEX” (Document and Media Exploitation) to download a copy of the devices’ photos and videos. The fo- rensic examination took about two hours and revealed more child pornography. Officers seized Mendez’s cell phone but released Mendez, who, in the days after his arrest, remotely wiped the contents of his phone and traveled by car into Mexico with his mother. Meanwhile, a Homeland Security Investigations (“HSI”) team extracted the metadata—creation dates, geolocation infor- mation, and so on—from the files that had earlier been 4 No. 23-1460

downloaded from Mendez’s cell phone. That data revealed that several of the child pornography images were taken near Mendez’s residence in Rosemont, Illinois. B. Procedural Background A grand jury indicted Mendez on two counts of producing child pornography, in violation of 18 U.S.C. § 2251(a), one count of transporting child pornography, in violation of 18 U.S.C. § 2252A(a)(1), and one count of possessing child por- nography, in violation of 18 U.S.C. § 2252A(a)(5)(B). He was extradited to the United States in January 2020. Mendez moved to suppress the evidence found on his cell phone, arguing the searches violated the Fourth Amendment because they were unsupported by either a probable-cause supported warrant or reasonable suspicion. After an eviden- tiary hearing in which Officer Callison and other investigating officers testified, the district court denied the motion. Relying in large part on our decision in United States v. Wanjiku, 919 F.3d 472 (7th Cir. 2019), the district court held that the searches did not violate the Fourth Amendment because cus- toms agents had reasonable suspicion by the time they began looking through Mendez’s phone. Mendez pled guilty to one count of producing child por- nography but preserved his right to appeal the district court’s suppression ruling. He received a 300-month sentence, fol- lowed by a ten-year term of supervised release. We now con- sider that preserved issue, reviewing the district court’s find- ings of fact for clear error and questions of law de novo. See United States v. Ostrum, 99 F.4th 999, 1004 (7th Cir. 2024). No. 23-1460 5

II. Analysis The Fourth Amendment commands that searches and sei- zures be reasonable. U.S. Const. amend. IV. Ordinarily, “[i]n the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.” Riley, 573 U.S. at 382. One such exception is the border search exception. “Con- gress, since the beginning of our Government, ‘has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a war- rant, in order to regulate the collection of duties and to pre- vent the introduction of contraband into this country.’” 1 United States v. Flores-Montano, 541 U.S. 149, 153 (2004) (quot- ing United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985)). The government’s unquestionable authority to search persons and effects at the border is rooted in “the long-stand- ing right of the sovereign to protect itself by stopping and ex- amining persons and property crossing into this country.” Ramsey, 431 U.S. at 616; see also id. at 619 (“Historically such broad powers have been necessary to prevent smuggling and to prevent prohibited articles from entry.”); Flores–Montano, 541 U.S. at 152 (noting that the border exception rests on the government interest in “preventing the entry of unwanted persons and effects”). The “Fourth Amendment balance be- tween the interests of the Government and the privacy right

1 We treat the customs area of O’Hare International Airport as “the

functional equivalent of an international border for the purpose of inspect- ing persons and articles arriving on international flights.” Wanjiku, 919 F.3d at 480 (citing United States v. Yang, 286 F.3d 940, 944 (7th Cir. 2002)); see also Almeida-Sanchez v. United States, 413 U.S. 266, 273 (1973). 6 No. 23-1460

of the individual is … struck much more favorably to the Gov- ernment at the border.” Montoya de Hernandez, 473 U.S. at 540. When the government acts under its “inherent authority to protect … its territorial integrity,” its interest is “at its zenith.” Flores-Montano, 541 U.S. at 152–53. In contrast, a traveler’s ex- pectation of privacy at the border is simply “less.” Montoya de Hernandez, 473 U.S. at 539. Accordingly, border searches have long been exempted from warrant and probable cause requirements, and ordinar- ily “are reasonable simply by virtue of the fact that they occur at the border.” Flores-Montano, 541 U.S. at 152–53 (quoting Ramsey, 431 U.S. at 616). “Routine” searches of people and ef- fects at the border—which have included examining the con- tents of a person’s purse, wallet, or pockets, United States v. Carter, 592 F.2d 402 (7th Cir. 1979), opening mail, see Ramsey, 431 U.S. at 620, and disassembling and reassembling a vehi- cle’s fuel tank, see Flores-Montano, 541 U.S. at 155—are “per se reasonable” and require no particularized suspicion at all. Yang, 286 F.3d at 944 (citing Ramsey, 431 U.S. at 616); see also Montoya de Hernandez, 473 U.S. at 538 (“Routine searches of the persons and effects of entrants are not subject to any re- quirement of reasonable suspicion, probable cause, or war- rant.”); United States v. Johnson, 991 F.2d 1287, 1291 (7th Cir. 1993). Even highly intrusive, so-called “non-routine” border searches need only reasonable suspicion. See Montoya de Her- nandez, 473 U.S. at 541. But the Supreme Court has recognized this “non-routine” category only in searches of a suspect’s person. It held, for example, that a 16-hour detention for mon- itored bowel movement of a person suspected of “smuggling contraband in her alimentary canal” requires reasonable No. 23-1460 7

suspicion given the personal dignity and privacy interests at stake. Id. at 541. And in this circuit, “we have confronted bor- der searches and seizures that we characterized as arguably non-routine”—including pat downs, partial strip searches, visual body cavity searches, and the dismantling of luggage— and have applied the reasonable suspicion standard. Wanjiku, 919 F.3d at 482–83 (emphasis added); see also Yang, 286 F.3d at 944, 949; Kaniff v. United States, 351 F.3d 780, 784–85 (7th Cir. 2003); Johnson, 991 F.2d at 1291–94. Routine or otherwise, searches at the border “never” re- quire a warrant or probable cause. Ramsey, 431 U.S. at 619 (“There has never been any additional requirement that the reasonableness of a border search depended on the existence of probable cause.”). At most, border searches require reason- able suspicion. See Wanjiku, 919 F.3d at 481; United States v. Molina-Isidoro, 884 F.3d 287, 291 (5th Cir. 2018) (“For border searches both routine and not, no case has required a war- rant.”). In more than 200 years of border search precedent, neither the Supreme Court nor we have ever found a border search unconstitutional. Mendez argues that Riley and Carpenter upended that precedent by recognizing that cell phones fundamentally dif- fer from other types of personal effects. See Riley, 573 U.S. at 393; Carpenter, 585 U.S. at 318. Yet our caselaw highlights why neither case supports altering the long-settled rule exempting border searches from warrant and probable cause require- ments: Riley and Carpenter had nothing to do with the border context. See Wanjiku, 919 F.3d at 484; United States v. Wood, 16 F.4th 529, 533 (7th Cir. 2021) (“Given the context-specific 8 No. 23-1460

nature of the Fourth Amendment, Riley is not readily transfer- able to scenarios other than the one it addressed.”). 2 Rather, Riley involved the search incident to arrest excep- tion and “carefully tailored its analysis to that context.” Wood, 16 F.4th at 533. What is unreasonable after arrest may be per- fectly reasonable at customs, as Riley itself anticipated. See Ri- ley, 573 U.S. at 401–02 (“[O]ther case-specific exceptions may still justify a warrantless search of a particular phone.”); see also New Jersey v. T.L.O., 469 U.S. 325, 337 (1985) (Fourth Amendment reasonableness “depends on the context within which a search takes place.”). A border search is

2 Wanjiku and a later decision, United States v. Skaggs, 25 F.4th 494 (7th

Cir. 2022), resolved the identical issue of electronic device searches at cus- toms under the Fourth Amendment’s good faith exception to the warrant requirement. “[N]o court,” we observed in Wanjiku, “had ever required more than reasonable suspicion for any search at the border.” 919 F.3d at 479. And because we found that law enforcement had reasonable suspi- cion to search the defendant’s phone, “[g]iven the state of the law at the time of the[] searches,” we concluded that law enforcement had “an ob- jectively good faith belief that their conduct did not violate the Fourth Amendment.” Id. at 485–86. While we left the merits of the Fourth Amend- ment issues open in those cases, we go on to reach those merits issues here to provide clarity to law enforcement and the public on the burgeoning practice of electronic device searches. See Molina-Isidoro, 884 F.3d at 293 (Costa, J., 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.”); United States v. Bosyk, 933 F.3d 319, 332 n.10 (4th Cir. 2019) (“[W]hen a Fourth Amendment case presents a novel question of law whose resolu- tion is necessary to guide future action by law enforcement officers and magistrates, there is sufficient reason for [a court] to decide the violation issue before turning to the good-faith question.” (alterations in original) (quoting Illinois v. Gates, 462 U.S. 213, 264 (1983) (White, J., concurring))). No. 23-1460 9

fundamentally different from a search incident to arrest, not least because “the Fourth Amendment’s balance of reasona- bleness is qualitatively different at the international border,” where the government’s interest in protecting its territorial in- tegrity is at its peak and travelers’ expectations of privacy are diminished. Montoya de Hernandez, 473 U.S. at 538; cf. United States v. 12 200-Ft. Reels of Super 8MM. Film, 413 U.S. 123, 125 (1973) (“Import restrictions and searches of persons or pack- ages at the national borders rest on different considerations and different rules of constitutional law from domestic regu- lations.”). Underlying the Court’s decision in Riley was the fact that neither of the search incident to arrest exception’s twin concerns—preventing harm to officers and destruction of evidence—“ha[d] much force with respect to digital con- tent on cell phones.” Riley, 573 U.S. at 386. Here, in contrast, we agree with the First Circuit that “given the volume of trav- elers passing through our nation’s borders, warrantless elec- tronic device searches are essential to the border search ex- ception’s purpose of ensuring that the executive branch can adequately protect the border.” 3 Alasaad v. Mayorkas, 988 F.3d 8, 17 (1st Cir. 2021). While Mendez argues that cell phone searches are unteth- ered to the border search doctrine’s justifications, this case

3 We have twice declined to extend Riley beyond the search incident

to arrest exception: to parolee searches in Wood, 16 F.4th at 533, and to consent searches in United States v. Thurman, 889 F.3d 356, 366 n.9 (7th Cir. 2018) (finding in the consent-search context that “Riley d[id] not affect our holding” because “[a]lthough the Court discussed the unique nature of modern cell phones as unparalleled repositories for personal information, it did not address the consent-based exception to the warrant require- ment”). 10 No. 23-1460

illustrates that cell phones can contain the contraband the bor- der search doctrine means to intercept: here, digital contra- band in the form of child pornography. See United States v. Cano, 934 F.3d 1002, 1014 (9th Cir. 2019) (“The best example [of digital contraband] is child pornography.”). The govern- ment’s interest in detecting child pornography at the border is just as strong as its interest in intercepting firearms, narcot- ics, or any other prohibited item. 4 See United States v. Touset, 890 F.3d 1227, 1235 (11th Cir. 2018) (“‘[Digital]’ child pornog- raphy poses the same exact ‘risk’ of unlawful entry at the bor- der as its physical counterpart.”). That digital contraband like child pornography can pass into the country electronically or be accessed remotely does little to diminish the government’s interest in preventing its physical entry into the country. See

4 Although the scope of a search conducted under an exception to the

warrant requirement must be “commensurate with its purposes,” Arizona v. Gant, 556 U.S. 332, 339 (2009), the Ninth Circuit is the only circuit to cabin the border search exception to detecting contraband itself. Compare Cano, 934 F.3d at 1019 (holding that “border officials are limited to search- ing for contraband only”), with United States v. Levy, 803 F.3d 120, 124 (2d Cir. 2015) (noting that CBP officers “have the authority to search and re- view a traveler’s documents and other items at the border when they rea- sonably suspect that the traveler is engaged in criminal activity, even if the crime falls outside the primary scope of their official duties.”), and United States v. Xiang, 67 F.4th 895, 900 (8th Cir. 2023) (adopting the Second Cir- cuit’s “more sensibl[e]” position), and Alasaad, 988 F.3d at 20 (“[T]he bor- der search exception’s purpose is not limited to interdicting contraband; it serves to bar entry to those ‘who may bring anything harmful into this country.’” (emphasis in original) (quoting Montoya de Hernandez, 473 U.S. at 544)), and United States v. Aigbekaen, 943 F.3d 713, 721 (4th Cir. 2019) (finding the purposes of the exception to be “protecting national security, collecting duties, blocking the entry of unwanted persons, or disrupting efforts to export or import contraband”). No. 23-1460 11

id. (“If anything, the advent of sophisticated technological means for concealing contraband only heightens the need of the government to search property at the border.”); United States v. Thirty-Seven Photographs, 402 U.S. 363, 376 (1971) (“Customs officers characteristically inspect luggage and their power to do so is not questioned … ; it is an old practice and is intimately associated with excluding illegal articles from the country.”). And although it was not the case here, a border search of a cell phone could also facilitate the doc- trine’s goal of “reasonably requiring one entering the country to identify himself as entitled to come in.” Carroll v. United States, 267 U.S. 132, 154 (1925). No circuit court has read Riley to require more than rea- sonable suspicion to support even the most intrusive electron- ics search at the border. See United States v. Castillo, 70 F.4th 894, 897–98 (5th Cir. 2023) (“[W]hen it comes to manual cell phone searches at the border, our sister circuits have uni- formly held that Riley does not require either a warrant or rea- sonable suspicion.”); Molina-Isidoro, 884 F.3d at 293 (5th Cir. 2018); Xiang, 67 F.4th at 900 (8th Cir. 2023) (“Riley involved a different Fourth Amendment exception, searches incident to arrest. No Circuit has held that the government must obtain a warrant to conduct a routine border search of electronic de- vices.”); Alasaad, 988 F.3d at 17 (1st Cir. 2021) (“Riley does not command a warrant requirement for border searches of elec- tronic devices nor does the logic behind Riley compel us to impose one.”); Cano, 934 F.3d at 1015 (9th Cir. 2019); Touset, 890 F.3d at 1234 (11th Cir. 2018) (“Although the Supreme Court stressed in Riley that the search of a cell phone risks a significant intrusion on privacy, our [caselaw makes] clear that Riley, which involved the search-incident-to-arrest excep- tion, does not apply to searches at the border.”); United States 12 No. 23-1460

v. Vergara, 884 F.3d 1309, 1312–13 (11th Cir. 2018) (“Border searches have long been excepted from warrant and probable cause requirements, and the holding of Riley does not change this rule.”); United States v. Kolsuz, 890 F.3d 133, 147 (4th Cir. 2018). We join our sister circuits to hold that a border search of a cell phone or other electronic device requires neither a warrant nor probable cause. The question remains whether the agent’s manual search of Mendez’s phone—scrolling through its photo gallery—was a routine search permissible without any suspicion or a “non- routine” search requiring reasonable suspicion. Mendez con- tends that because electronic devices carry potentially vast troves of sensitive and personal information, we should treat all electronic device searches as intrusive border searches re- quiring at least reasonable suspicion. Riley itself involved a manual phone search and no doubt indicates that all cell phone searches are intrusive to some degree, but the privacy concerns such searches implicate “are nevertheless tempered by the fact that the searches are taking place at the border.” Alasaad, 988 F.3d at 18. Moreover, manual electronic searches at the border are typically “brief procedure[s]”—here, around thirty minutes—practically limited in intrusiveness by the fact that the customs agent cannot download and peruse the phone’s entire contents. Instead, they must physically scroll through the device, making it less likely for an agent to tap into the revealing nooks and crannies of the phone’s metadata, encrypted files, or deleted contents. Flores-Montano, 541 U.S. at 155; compare United States v. Cotterman, 709 F.3d 952, 960 (9th Cir. 2013) (en banc) (pre-Riley decision finding the legitimacy of a suspicion-less “quick look and unintru- sive” manual laptop search “not in doubt”), with Kolsuz, 890 F.3d at 136 (requiring reasonable suspicion for a month-long, No. 23-1460 13

off-site forensic analysis that yielded a nearly 900-page report cataloguing the phone’s data). We therefore agree with the consensus among circuits that brief, manual searches of a traveler’s electronic device are “routine” border searches requiring no individualized suspi- cion. See Castillo, 70 F.4th at 897–98 (“[W]hen it comes to man- ual cell phone searches at the border, our sister circuits have uniformly held that Riley does not require either a warrant or reasonable suspicion.”); Alasaad, 988 F.3d at 19 (“[B]asic bor- der searches [of electronic devices] are routine searches and need not be supported by reasonable suspicion.”); Cano, 934 F.3d at 1016 (“[M]anual searches of cell phones at the border are reasonable without individualized suspicion.”); Touset, 890 F.3d at 1233; Kolsuz, 890 F.3d at 146 n.5 (describing United States v. Ickes, 393 F.3d 501 (4th Cir. 2005), as “treat[ing] a [basic] search of a computer as a routine border search, requir- ing no individualized suspicion”). The only point of divergence among the circuits is whether more intrusive, forensic electronic device searches require in- dividualized suspicion. Compare Touset, 890 F.3d at 1231 (no suspicion required for forensic electronics search), with Cano, 934 F.3d at 1016 (reasonable suspicion required). We need not resolve this issue today because this case does not require it. The valid manual search of Mendez’s phone revealed child pornography. So, even if the extensive forensic searches that followed required reasonable suspicion, customs agents had that and more once they found illicit images and videos of children on Mendez’s phone during the routine search. AFFIRMED