United States v. Miguel Angel Cano (9th Cir. September 2020), Denying Rehearing En Banc

The Federal Docket

Border Search Exception – Border officials have authority to conduct routine customs searches and seizures at the border but are limited to searching for contraband, not evidence, and must have at least reasonable suspicion for a warrantless forensic search of a phone for contraband.

Miguel Angel Cano was convicted for importing cocaine when 31 pounds were discovered in the spare tire during routine inspection at the U.S. customs border in Tijuana.  Officers seized his phone and manually searched it after Cano waived his Miranda rights.  The agents used software to download data from the phone that was used in Cano’s conviction.  Cano said he was traveling to a carpet store for work in San Diego but none of the downloaded calls corresponded to his statement.

On appeal, a Ninth Circuit panel reviewed Cano’s motion to suppress evidence in violation of the Fourth Amendment and reversed the district court’s denial of the motion, holding that routine border searches are limited in purpose and scope to contraband, not evidence.  The Court further noted that the only contraband a cell phone could contain was child pornography and that the agents did not have reasonable suspicion the phone contained child pornography.  Moreover, since Cano was arrested at the border, the agents could have obtained a warrant prior to conducting the forensic search.  The Court also held the good faith exception did not apply since the decision in Cotterman allowed search for contraband, not evidence.  The Court overturned Cano’s conviction and denied plaintiff’s en banc request for rehearing.

Judge Bennett dissented to the Court’s vote against rehearing en banc, arguing that the Supreme Court has not held that search of a cell phone with reasonable suspicion of criminal activity is outside the scope of the border search exception and the agents relied in good faith on prior Court decisions, so the panel should conduct the rehearing on evidence suppression.

Order before Graber, Bybee, Harpool

Dissent by Bennett joined by Callahan, Smith, Nelson, Bade, VanDyke

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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