March 19, 2018

No Fourth Amendment Rights at the Border?

Court rules that no warrant is necessary for border searches of a U.S. citizen’s cell phone content.

The 11th Circuit Court of Appeals ruled in United States v. Vergara that American citizens’ Fourth Amendment rights end at the border. Speaking for the majority, Judge William H. Pryor stated that, since “the forensic searches of [Hernando] Vergara’s cell phones occurred at the border, not as searches incident to arrest,” the Fourth Amendment protections didn’t apply. He added, “Border searches never require a warrant or probable cause.” Yet the issue here was not the physical search of Vergara’s person and belongings as he entered the U.S., but of the search of his cell phone contents. When Vergara, a U.S. citizen, re-entered the U.S., Customs and Border Protection officials searched his luggage, including three phones, because of his prior conviction for child pornography. Vergara’s phone contents were checked, and officials found child pornography for which Vergara was subsequently arrested.

In her dissenting opinion, Judge Jill Pryor (no relation) agreed that the government has an interest in protecting the nation’s borders, but she argued that significant privacy protections were raised by the ruling. Pryor wrote, “The privacy interests implicated in forensic searches are even greater than those involved in the manual searches at issue in Riley [v. California].” Furthermore, “a forensic search of a cell phone at the border [should require] a warrant supported by probable cause.”

This ruling will clearly not be the end of the story as it sets up a collision course with the Supreme Court’s 2014 ruling that specifically extended Fourth Amendment protections to include cell phones. Indeed, Vergara’s challenge relied on that case. Chief Justice John Roberts wrote at the time, “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” Roberts concluded, “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.”

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