In this case Hernando Vergara appeals the denial of his motion to suppress evidence found on two cell phones that he carried upon returning to Tampa, Florida on a cruise from Cozumel, Mexico. The search took place in Tampa where he entered customs. Vergara had already been on the list of “lookouts” by the Customs and Border Protection officer because of a prior conviction for possession of child pornography. An individual placed on this list is subjected to secondary screen at the border, which involves additional questioning and searching.
In the secondary screening the agent found two cell phones and initially the search a few apps nothing of interest was found until the agent came upon a video which depicted topless females he believed were minors. Another agent handling criminal investigations concluded the website distributed child pornography, though the video did not meet the statutory definition of child pornography. Because the agent did not have the capability to forensically analyze the phone at the port of entry, the agent seized the phone. The data extracted from the phone revealed more than 100 images and videos of child pornography on the phone.
Vergara argued that the initial search of the phone without a warrant violated the U.S. Supreme Court case of Riley v. California where during a search incident to the defendant’s arrest law enforcement was required to obtain a warrant for the manual and the forensic search of the defendant’s phone. Vergara argued the same applied here and the agents were required to obtain a warrant for the manual and forensic searches of his phone.
The Eleventh Circuit reaffirmed the Fourth Amendment exception for border searches which never required probable cause or a warrant. The Court found that the forensic search of Vergara’s phone required neither a warrant nor probable cause because it was a border search. Only highly intrusive searches of a person’s body such as a strip search or an x-ray examination require reasonable suspicion at a border entry. The search was subject the reasonableness standard, and there has never been any additional requirement that the search require the existence of probable cause. The appellate court rejected the Riley argument because it found the SCOTUS expressly limited its holding to the search incident to arrest exception and noted the Court said that other case specific exceptions may still justify a warrantless search of a particular phone.
The appellate court reaffirmed that the highest standard for a search at the border is reasonable suspicion and the lower court found that reasonable suspicion existed for the search of the phone. While this border search case involved a cell phone, the same principle applies to the search of any items carried by a persons who enter customs at a border entry. Generally the Fourth Amendment has very little enforcement when it involves a border search.
In a lengthy dissent, Judge Pryor came to a different conclusion. The dissent concluded that a forensic search of the cell phone invaded the defendant’s privacy interest, and this outweighed the government’s heightened interests at the border. The dissent concluded that the government should simply obtain a warrant before conducting a search.