CA11: No right to privacy in cell phones at border

A battle of the Pryors.

The 11th Circuit held today in a short 7 page opinion, per Judge William Pryor and joined by a visiting judge, that there is no expectation of privacy to a cell phone searched at the border:

This appeal presents the issue whether warrantless forensic searches of two cell phones at the border violated the Fourth Amendment. U.S. Const. amend IV. Hernando Javier Vergara appeals the denial of his motion to suppress evidence found on two cell phones that he carried on a cruise from Cozumel, Mexico to Tampa, Florida. He argues that the recent decision of the Supreme Court in Riley v. California, 134 S. Ct. 2473 (2014)—that the search-incident-to-arrest exception to the warrant requirement does not apply to searches of cell phones—should govern this appeal. But we disagree. The forensic searches of Vergara’s cell phones occurred at the border, not as searches incident to arrest, and border searches never require a warrant or probable cause. At most, border searches require reasonable suspicion, but Vergara has not argued that the agents lacked reasonable suspicion to conduct a forensic search of his phones. We affirm.

  Judge Jill Pryor dissented:

In this case we decide for the first time whether a warrantless forensic search of a cell phone at the United States border comports with the Fourth Amendment. To determine whether a law enforcement practice is constitutional, courts must balance its promotion of legitimate government interests against its intrusion on an individual’s Fourth Amendment rights. United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985). Here, we weigh the government’s interest in conducting warrantless forensic cell phone searches at the border with Hernando Vergara’s privacy interest in his cellular devices and the data they contain.
The majority opinion concludes that this balance weighs heavily in the government’s favor because the searches occurred at the border. I agree with the majority that the government’s interest in protecting the nation is at its peak at the border, but I disagree with the majority’s dismissal of the significant privacy interests implicated in cell phone searches, as articulated by the Supreme Court in Riley v. California, 134 S. Ct. 2473 (2014). Because Riley did not involve a border search, I acknowledge that I can, at best, attempt to predict how the Supreme Court would balance the interests here. But my weighing of the government’s heightened interest at the border with Vergara’s privacy interest in his cell phones leads me to a result different than the majority’s. I respectfully dissent because, in my view, a forensic search of a cell phone at the border requires a warrant supported by probable cause.