Opinion
EP-22-CR-01450-DCG-1
2023-03-06
UNITED STATES of America, v. Shirley Rose RAMOS, Defendant (1).
Richard Douglas Watts, U.S. Attorney's Office, El Paso, TX, for United States of America. Elyse M. Bataller-Schneider, Public Defender, Federal Public Defender, El Paso, TX, for Defendant.
Richard Douglas Watts, U.S. Attorney's Office, El Paso, TX, for United States of America.
Elyse M. Bataller-Schneider, Public Defender, Federal Public Defender, El Paso, TX, for Defendant.
SEALED MEMORANDUM OPINION AND ORDER DENYING MOTION TO SUPPRESS
Editor's Note: The decision was unsealed by court action taken May 15, 2023.
DAVID C. GUADERRAMA, UNITED STATES DISTRICT JUDGE
Defendant Shirley Rose Ramos moves to suppress certain evidence in the above-captioned criminal case. Mot., ECF No. 22. The Court DENIES her Motion.
I. BACKGROUND
The Court makes the following factual findings based on the testimony the parties introduced at the suppression hearing and the Court's credibility determinations.
Neither the Government nor Defendant moved to admit any of the exhibits they used or displayed at the suppression hearing into the evidentiary record.
A. The Confidential Informants
Sometime before the events at issue here, Homeland Security Investigations ("HSI") began investigating a fentanyl smuggling operation in the El Paso area. Participants in that scheme would allegedly carry fentanyl in their body cavities across the international border into the United States.
As part of that investigation, HSI arrested and interviewed several people whom the Government caught trying to sneak fentanyl into the country. Two participants who cooperated with the Government in hopes of receiving a lighter sentence told HSI that Defendant was part of the trafficking ring and had previously successfully carried fentanyl across the border inside her body. The Government accordingly placed an alert on Defendant's file in its computer system so officers would subject her to greater scrutiny the next time she tried crossing the border.
B. Defendant's Earlier Border Crossing
On August 2, 2022, Defendant and two others arrived at an international port of entry in a vehicle and asked to enter the United States. A Customs and Border Protection ("CBP") officer inputted Defendant's personal information into the Government's computer system and discovered the alert identifying Defendant as a suspected drug trafficker. The Government therefore searched Defendant and the vehicle for narcotics. Although a drug-detecting canine alerted to the odor of narcotics on Defendant's person, officers didn't find any contraband when they searched her. Although officers found a small amount of fentanyl in the vehicle's center console, the record contains no indication that the Government arrested or charged Defendant at that time. C. The Alleged Offense
On the night of August 15, 2022, Defendant again tried to enter the United States through a port of entry—this time on foot. The Government again stopped Defendant based on the alert on her file.
1. The Drug Dog Alert
During a secondary inspection, a canine trained to detect the odor of controlled substances inside the human body alerted to Defendant's buttocks. The Government therefore remanded Defendant to a female CBP officer's custody for a visual examination of her body cavities.
2. The Visual Cavity Search
The officer ordered Defendant to lower her shorts and underwear and bend over so she could inspect Defendant's vaginal and rectal areas with a flashlight. The officer also ordered Defendant to perform ten squats—presumably to try to dislodge any contraband Defendant might have hidden in her body. The officer did not, however, physically touch Defendant or penetrate any of her orifices during the inspection. Nor did the officer order Defendant to spread her private areas so she could peer deeper into Defendant's body.
The officer did not see any foreign objects in or protruding from Defendant's body. She did, however, observe droplets of dried blood on Defendant's underwear and a "low-shine substance" resembling personal lubricant on her vaginal area. Because Defendant denied that she was menstruating, the fluids led the officer to suspect that Defendant had recently inserted narcotics into her body. The Government thus detained Defendant overnight for further investigation.
The officer conceded, however, that she was not certain that the substance was in fact lubricant.
3. The First and Second Interview
The following morning, HSI personnel interviewed Defendant after advising her of her Miranda rights. After initially denying any involvement with or knowledge of the fentanyl-smuggling operation, Defendant invoked her right to an attorney and stopped talking to the agents. Law enforcement personnel therefore ceased questioning and escorted Defendant to a holding cell.
Soon thereafter, however, Defendant told a CBP officer that she wanted to talk to the agents again. That officer summoned the agents, who then escorted Defendant from the holding cell back to the interview room. After the agents readvised Defendant of her right not to speak with them without an attorney, Defendant admitted that she knew about the fentanyl-trafficking scheme, but denied participating in it herself. Defendant then voluntarily unlocked her cell phone and showed the agents information and photographs pertaining to the fentanyl-smuggling operation. However, Defendant explicitly refused to let the agents independently search or manipulate her cell phone or view any of its contents other than what she voluntarily showed them.
4. The DOMEX Inspection
At some point during Defendant's detention, the Government performed a warrantless Document and Media Exploitation ("DOMEX") inspection of her cell phone. See Phone Warrant Aff., ECF No. 22-3, at 6; see also infra Section II.E (describing DOMEX searches in greater detail). That
Page citations in this Memorandum Opinion and Order refer to the page numbers assigned by the Court's CM/ECF system, not the document's internal pagination.
search uncovered conversations consistent with drug trafficking activity, as well as two photographs of a bag of blue pills resembling fentanyl. Phone Warrant Aff. at 7.
11:32 AM So you can stop by or send someone or however you want
11:32 AM Shes gonna give you 800
11:33 AM What is her address G
11:33 AM [address redacted]
12:01 PM [phone number redacted] whats app
5:31 PM Pedro cash app Rosa them 100 you were gonna cash app her cuz im bout to send anotherboat
Phone Warrant Aff. at 6-7 (all typographical and grammatical errors in original).
But see infra note 6.
5. The X-Ray Examination
Shortly after the second interview, the Government applied for a warrant to perform a "medical examination of [Defendant]'s vaginal/rectal cavity and pelvic area for the purpose of locating an unidentified amount of contraband believed to be narcotics." Body Warrant Appl., ECF No. 22-2, at 1-2. To support that application, one of the HSI agents who interviewed Defendant prepared an affidavit explaining why he suspected that she was concealing drugs inside her body. Body Warrant Aff., ECF No. 22-2, at 2-7. Among other evidence, the affiant relied on the CBP officer's observations from the visual cavity inspection, as well as Defendant's statements during the two interviews. See id. at 5-6.
Once U.S. Magistrate Judge Anne T. Berton signed the warrant, see Body Warrant, ECF No. 22-2, at 9, the Government transported Defendant to a hospital for an x-ray of her body's contents. The x-ray revealed a foreign object in Defendant's vaginal cavity, which a CBP officer ordered Defendant to remove. Defendant extracted the object from her body herself; law enforcement personnel did not forcibly remove it from her. The object turned out to be a bundle of pills that tested positive for fentanyl.
6. The Cell Phone Warrant
A few days later, the Government applied for a warrant to search her cell phone more thoroughly than it had when it performed the DOMEX examination. Phone Warrant Appl., ECF No. 22-3, at 1-14. The Government's affidavit supporting that application relied at least in part on the incriminating conversations the Government found during the DOMEX inspection, as well as the CBP officer's observations
See Phone Warrant Aff. at 6-7 ("United States Customs and Border Protection Officers completed a DOMEX inspection using CBP's Border Search Authority at the Port of Entry. During the inspection the following conversation with 'Pedro' was revealed:....").
The Government insists that it did not in fact rely on evidence it obtained from the DOMEX inspection to support the Phone Warrant Application. See Resp., ECF No. 23, at 3-4 & n.3, 14. According to the Government, "[t]he text conversation with 'Pedro' was seen by manual search of the cell phone" when Defendant voluntarily showed HSI Special Agents her phone during the second interview, "not by [the] 'DOMEX' download of the cell phone." Id. (emphasis added). In fact, the Government claims, "[n]o information from the DOMEX download was known to the HSI affiant" who signed the Phone Warrant Application, "to include the time in which he wrote the Cell Phone Warrant." Id. at 4 n.3. That HSI Officer testified to that effect at the suppression hearing as well.
The Court rejects the Government's argument. The warrant application explicitly and unequivocally says that the "conversation with 'Pedro' was revealed" "[d]uring the" "DOMEX inspection." See Phone Warrant Aff. at 6 (emphasis added). The application likewise indicates that the Government obtained the photographs of the bag of pills during the DOMEX inspection as well. See id. at 7 (suggesting that CBP officers "viewed [those] photographs" "[d]uring the [same] phone inspection" that revealed the incriminating conversations). The Court therefore finds that the Phone Warrant Application was based (at least in part) on information the Government discovered during the DOMEX inspection.
from the visual cavity inspection and Defendant's statements during her two interviews. See id. at 4-5. U.S. Magistrate Judge Miguel A. Torres authorized the search warrant, see id. at 1, and the Government searched Defendant's phone accordingly.
D. The Indictment
Based on the evidence it collected during the aforementioned searches, the Government charged Defendant with unlawfully importing fentanyl into the United States and possessing fentanyl with intent to distribute. Indictment, ECF No. 11.
See also 21 U.S.C. §§ 952(a), 960(a)(1) & (b)(2)(F), 841(a)(1) & (b)(1)(B)(vi).
II. ANALYSIS
Defendant now moves to suppress
(1) "any evidence obtained" as a result of her "detention and body cavity search;"
(2) "any evidence obtained from her phone;"
(3) "any statements" she made to law enforcement personnel during her detention; and
(4) "any fruits of her ... detention and searches."
Mot. at 1.
A. The Visual Body Cavity Search Did Not Violate the Fourth Amendment
Defendant first claims that the Government violated the Fourth Amendment to the U.S. Constitution—which provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," U.S. CONST. amend. IV—by subjecting her to a visual body cavity search, Mot. at 5-8.
1. The Fourth Amendment and Warrantless Searches
Subject to various exceptions, "[w]hen government officials conduct a search in violation of the Fourth Amendment, prosecutors are barred from introducing evidence obtained in the unlawful search at trial." E.g., United States v. Aguilar, 973 F.3d 445, 449 (5th Cir. 2020). Furthermore, "[u]nder the 'fruit of the poisonous tree' doctrine, all evidence derived from ... an illegal search ... must be suppressed, unless the Government shows that there is a break in the chain of events sufficient to refute the inference that the evidence was a product of the Fourth Amendment violation." E.g., United States v. Rivas, 157 F.3d 364, 368 (5th Cir. 1998) (emphasis added).
Because the Government performed the visual body cavity search without a warrant, the Government "bears the burden of proving, by a preponderance of the evidence," that it was lawful. United States v. McKinnon, 681 F.3d 203, 207 (5th
Cir. 2012). Warrantless searches "are per se unreasonable" under the Fourth Amendment "unless they fall within a few narrowly defined exceptions." E.g., United States v. Roberts, 274 F.3d 1007, 1011 (5th Cir. 2001).
2. The Border Search Doctrine
One such exception is the "border-search doctrine." E.g., Rivas, 157 F.3d at 367. "Although the Fourth Amendment applies at" the border between the United States and its neighboring countries, the Amendment's "protections are severely diminished" there. Aguilar, 973 F.3d at 449. "At the border, the government's interest is at its zenith because of its need to prevent the entry of contraband, and an individual's privacy expectations are lessened by the tradition of inspection procedures at the border." Id. (cleaned up).
For that reason, "government agents may conduct a 'routine search' at the international border or its functional equivalent without probable cause, a warrant, or any suspicion to justify the search." Rivas, 157 F.3d at 367 (emphasis added). "A stop and search that is not 'routine,'" however, "requires a reasonable suspicion of wrongdoing to pass constitutional muster." Id. (cleaned up) (emphasis added).
Whether a border search is "routine" depends on how much it invades the traveler's privacy and dignity. United States v. Kelly, 302 F.3d 291, 294 (5th Cir. 2002). For example, "ordinary pat-downs or frisks, removal of outer garments or shoes, and emptying of pockets, wallets, or purses are all routine searches" that "require no justification other than the person's decision to cross our national boundary." Id. By contrast, "more intrusive" searches are "non-routine" and "require a particularized reasonable suspicion" to perform. Id. (emphasis added). A government agent has "reasonable suspicion" to conduct a non-routine border search if, based on "the totality of the particular circumstances," she has "a particularized and objective basis for suspecting th[at] particular person of smuggling contraband." Roberts, 274 F.3d at 1014 (cleaned up).
3. The Visual Cavity Search was a Non-Routine Search Requiring Reasonable Suspicion
The parties dispute how to categorize the CBP officer's examination of Defendant's body and therefore disagree over which legal standard applies. The Government classifies the examination as a "strip search" that "required only 'reasonable suspicion'" to perform. Resp. at 7, 10 (emphasis added). Defendant, by contrast, characterizes the examination as a "cavity search" that required "a higher level of suspicion ... than a strip search." Reply, ECF No. 24, at 3-4 (emphasis added); see also Mot. at 6-7. According to Defendant, "[c]aselaw in the Fifth Circuit is unclear as to whether a body cavity search can, like a strip search, be executed based on reasonable suspicion." Mot. at 6; see also Reply at 3-4.
As the Fifth Circuit has observed, "it is not always apparent where one should draw the line between strip searches and body cavity searches." United States v. Himmelwright, 551 F.2d 991, 995 (5th Cir. 1977). At least for the purposes of this case, however, any such distinction is largely semantic. The Fifth Circuit classifies "body cavity searches" and "strip searches" alike as "[n]on-routine searches" that "require a particularized reasonable suspicion." See Kelly, 302 F.3d at 294; see also Bustillos v. El Paso Cnty. Hosp. Dist., 891 F.3d 214, 220 (5th Cir. 2018) ("Cavity searches, strip searches, and x-ray examinations are all 'non-routine.'"). In other words, the "reasonable
suspicion" standard applies no matter whether the examination the CBP officer performed here is most accurately described as a "strip search" or a "cavity search."
The Court thus rejects Defendant's assertion that "[c]aselaw in the Fifth Circuit is unclear as to whether a body cavity search can, like a strip search, be executed based on reasonable suspicion," contra Mot. at 6; see also Reply at 3-4, because the Fifth Circuit directly answered that question in a case called United States v. Himmelwright . There, two female customs inspectors performed a border search similar (but not identical) to the search Defendant challenges here. See 551 F.2d at 993. The inspectors ordered the defendant to remove her clothing and "stand with her legs spread apart." Id. One of the inspectors noticed an object "protruding from [the defendant]'s vagina" and asked her to remove it. Id. The object turned out to be a condom filled with cocaine. Id. "At no point during their examination ... did the female customs inspectors touch [the defendant's] body;" nor was the defendant "ever subjected to a probing search of her orifices." Id.
Applying the "reasonable suspicion" standard, the Fifth Circuit held that the search did not violate the Fourth Amendment. Id. at 993, 995. In doing so, the court declined to follow the Ninth Circuit's approach of applying a "real suspicion" standard to strip searches and a more demanding "clear indication" standard to body cavity searches because, as noted above, "it is not always apparent where one should draw the line between strip searches and body cavity searches in order to determine which test should be applied." Id. at 994-95. Instead, reasoned the court, "the 'reasonable suspicion' standard is flexible enough to afford the full measure of protection which the [F]ourth [A]mendment commands," irrespective of whether any particular search is more accurately characterized as a "strip search" or a "body cavity search." Id.
Himmelwright is distinguishable from this case in one significant respect: whereas the inspectors in Himmelwright saw contraband "protruding from [the defendant]'s vagina," the CBP officer here did not. See 551 F.2d at 996; see also Mot. at 7 (emphasizing that distinction). The Himmelwright court remarked that if the inspectors had "seen a protruding object, any further search" of the defendant—such as a "probing search of [the defendant]'s orifices"—"may well have been constitutionally impermissible." 551 F.2d at 996; see also Mot. at 7 (quoting that language). The Court explains below why—at least on the facts of this case—the CBP officer's failure to locate any contraband during the visual body cavity search does not require the Court to suppress evidence the Government obtained thereafter. See infra Section II.C.
Still, Defendant is partially correct that more intrusive searches of a suspect's body require a greater degree of reasonable suspicion than less invasive ones. See Reply at 4. The level of suspicion an agent must possess to satisfy the reasonable suspicion standard "var[ies] depending on the circumstances of each case." United States v. Barger, 574 F.2d 1283, 1285 (5th Cir. 1978). "[T]he greater the intrusion" the search involves, "the greater must be the reason for conducting" that search. Id. "Thus, what constitutes 'reasonable suspicion' to justify a particular search may not suffice to justify a more intrusive or demeaning search." Id.
In sum, the "reasonable suspicion" standard applies no matter whether the CBP officer's examination was a "strip search," a "cavity search," or something in between. But the Government must show more reasonable suspicion to justify the visual cavity search than it would if it had performed a less intrusive inspection. See,
e.g., United States v. Afanador, 567 F.2d 1325, 1328 (5th Cir. 1978).
4. The Government Possessed Sufficient Reasonable Suspicion to Conduct the Visual Cavity Search
Having clarified the applicable standard, the Court concludes that the following three circumstances, considered in the aggregate, gave the Government sufficient reasonable suspicion to perform a visual cavity search:
1. A drug-detecting canine positively alerted to Defendant's private regions.
2. The Government's computer system red-flagged Defendant as a potential "internal" drug smuggler because two confidential sources had divulged that Defendant was a member of the fentanyl-trafficking ring and had previously successfully transported contraband into the United States inside her body.
Defendant argued in her Reply that it was "unclear as to whether the dog alerted to anything, or whether it was perhaps a less clear 'alert' or 'cast.'" Reply at 4-5; see also Rivas, 157 F.3d at 368 (concluding that the Government had "not satisfied its burden of proving that it had a reasonable suspicion" to search the defendant's vehicle because the drug-detected canine had merely "casted" toward the vehicle). At the suppression hearing, however, the canine officer testified that the canine's alert was valid. The Court finds the canine officer's testimony credible and defers to his judgment and expertise regarding whether the dog's action constituted a valid, positive alert.
The Court also credits the canine officer's testimony that the scent of a chihuahua that Defendant brought with her to the port of entry would not—and did not—cause the drug-detecting canine to give a false positive alert.
In Afanador, the Fifth Circuit held that reasonable suspicion justified strip-searching one of the defendants because a confidential source had informed law enforcement that that defendant would attempt to smuggle drugs into the United States. 567 F.2d at 1327, 1329. In upholding that search, the Fifth Circuit emphasized that
(1) the confidential source had provided "detailed" information that the defendant would "be body carrying a particular type of contraband on a particular date and flight," (2) the authorities had verified "the identifying portion of that information ... on the flight's arrival," and (3) the authorities had "no reason to believe the informant [wa]s unreliable," and had "taken affirmative steps to insure that the informant [wa]s not being paid for the information and ha[d] no criminal record."
Id. at 1329 (emphasis added); see also Roberts, 274 F.3d at 1015 (stating that Afanador stands for the proposition that "where the Government has received information of requisite detail from a confidential source, and where enough of that detail has been verified ... reasonable suspicion to conduct a non-routine border search is established" (emphasis added)).
The information the confidential sources gave the Government here wasn't as detailed or reliable as that in Afanador. For instance, whereas the informant in Afanador specified that the defendant would "be body carrying a particular type of contraband on a particular date and flight," 567 F.2d at 1329 (emphasis added), HSI personnel admitted at the suppression hearing that the confidential sources in this case did not provide any "specific information as to whether" Defendant would be "carrying drugs on August 15th, [2022]."
Thus, although the Court does not decide the question, the Court doubts whether the tips from the confidential informants, standing alone, would have created reasonable suspicion to perform the visual cavity search here. Cf. e.g., Hunter v. Auger, 672 F.2d 668, 677 (8th Cir. 1982) (relying on Afanador in a different context to hold that "uncorroborated ... tips" that certain people "would attempt to smuggle drugs" did not justify strip-searching those people).
In Afanador, however, the confidential tip was the sole basis for the reasonable suspicion supporting the strip search. See 567 F.2d at 1327, 1329. Here, by contrast, the Government was faced with not just the tip from the confidential sources, but also other indicia of unlawful activity. Thus, the totality of the circumstances, taken in the aggregate, supplied reasonable suspicion that Defendant was smuggling drugs in her body, irrespective of whether the informants' tips would justify the visual cavity search by themselves.
3. The Government had stopped Defendant at the border just two weeks earlier and discovered fentanyl in the center console of the vehicle she was occupying.
Together, these circumstances gave the immigration officers a particularized and objective basis for suspecting that Defendant was hiding fentanyl in her body. Cf. United States v. Paulino, No. 10-00062, 2011 WL 2268478, at *4 (D. Guam June 6, 2011) (concluding that a "positive alert from [a] drug detector dog," combined with "anonymous tips to authorities" that the defendant would attempt to carry drugs in his body across the border and other indicia of unlawful activity, created "a reasonable suspicion that [the d]efendant was concealing [drugs] in his rectal area"); Kaniff v. United States, 351 F.3d 780, 781-90 (7th Cir. 2003) (concluding that a "partial strip search" at an international port of entry—during which Customs officers ordered the plaintiff "to lower her pants and underpants" and "spread her legs and buttocks with her hands so [an officer] could visually inspect her anus"—was "supported by reasonable suspicion" where, among other things, "a trained narcotics dog alerted to the odor of narcotics" on the plaintiff's body and/or possessions and Customs had previously red-flagged the plaintiff in its computer system). Thus, the visual body cavity search here didn't violate the Fourth Amendment.
B. The Visual Body Cavity Search Did Not "Shock the Conscience"
Citing the Supreme Court's decision in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), Defendant also argues that the visual cavity search violated the Fifth Amendment's Due Process Clause and/or the Fourth Amendment because it "shocks the conscience." Mot. at 7-8; Reply at 5.
U.S. CONST. amend. V ("No person shall be ... deprived of life, liberty, or property, without due process of law ....").
According to Defendant, "[s]ome courts have recognized that the Rochin standard has now been subsumed by Fourth Amendment jurisprudence." Mot. at 7 (citing United States v. Booker, 728 F.3d 535, 545-56 (6th Cir. 2013)). Neither party argues that the applicable standard depends on whether the Fourth or the Fifth Amendment supplies the legal basis for Defendant's challenge. See id. ("[W]hether a violation of the Fourth Amendment or Due Process, law enforcement conduct that 'shocks the conscience[]' violates the Constitution."); Reply at 5 (similar); Resp. at 10. Because the Court concludes below that Rochin does not require the Court to suppress evidence here, the Court need not now decide whether Rochin's "shock the conscience" standard is a Fourth Amendment doctrine, a Due Process principle, or both.
In Rochin, three deputy sheriffs entered the petitioner's home without permission, forced his bedroom door open, and observed two morphine capsules on the petitioner's nightstand. 342 U.S. at 166, 72 S.Ct. 205. The petitioner attempted to destroy the evidence by swallowing the capsules. Id. The sheriffs pounced on the petitioner and forcibly—but unsuccessfully—tried to stop him from swallowing the evidence. Id.
The sheriffs therefore took the petitioner to a hospital and directed a physician to insert a tube into the petitioner's throat without his consent and induce vomiting. Id. The petitioner expelled the two capsules, and the State of California introduced those capsules into evidence to successfully convict the petitioner of possessing an illicit substance. Id.
The Rochin Court determined that the sheriffs' conduct—namely, "[i]llegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove
what was there, [and] the forcible extraction of his stomach's contents"—"shock[ed] the conscience." Id. at 172, 72 S.Ct. 205. The Court thus concluded that the petitioner's conviction had "been obtained by methods that offend[ed] the Due Process Clause" and overturned it accordingly. Id. at 174, 72 S.Ct. 205.
As the Fifth Circuit has noted, however, Rochin's "standard for proving outrageous governmental conduct is extremely demanding." United States v. Vasquez-Hernandez, 924 F.3d 164, 170 (5th Cir. 2019) (quoting United States v. Sandlin, 589 F.3d 749, 758 (5th Cir. 2009)). "[C]ourts have rejected" litigants' claims that various governmental acts "shock[] the conscience" "with almost monotonous regularity," leading the Fifth Circuit to remark that "the viability of the doctrine is hanging by a thread." Id. (quoting United States v. Nolan-Cooper, 155 F.3d 221, 229-30 (3d Cir. 1998)). Thus, for instance, the Fifth Circuit has "declined to find outrageous conduct where the Government failed to disclose that the defendant's signature on a particular document was forged; engaged in entrapment; or abducted the defendant from his home country to circumvent extradition proceedings." Id. (quoting Sandlin, 589 F.3d at 758)
Vasquez-Hernandez equates "outrageous government conduct" with conduct that "shock[s] the conscience" under Rochin. See 924 F.3d at 170 (quoting Rochin, 342 U.S. at 172, 72 S.Ct. 205).
While the Court of course recognizes that the visual cavity search here was intrusive and demeaning, it was nowhere near as invasive as the type of border searches that other courts have deemed conscience-shocking. In Huguez v. United States, for example, the Government forcibly extracted narcotics from the defendant's rectal cavity after he attempted to enter the United States at a border crossing. 406 F.2d 366, 370-73 (9th Cir. 1968). Three customs agents forcibly removed the defendant's pants while a doctor digitally penetrated the defendant's anus to rummage for foreign objects. Id. at 372. When the defendant resisted, the agents "handcuffed [him] and threw him onto a table." Id. While the agents applied pressure to the defendant's body to overcome his resistance, and as the handcuffs tore into his flesh, the doctor forcibly removed four packets of heroin "through the anus and external sphincter, requiring a stretching of the sphincter." Id. at 373. The entire ordeal caused the defendant "considerable discomfort and pain," and was "conducted violently, unhygienically, without medical propriety and with laughter and jokes." Id. at 373, 382. Applying Rochin's "shock the conscience" standard, the Ninth Circuit concluded that the forcible cavity search violated the defendant's due process rights under the Fifth Amendment. Id. at 379-82.
Here, by contrast, the CBP officer performing the visual cavity search made no physical contact with Defendant at all. The absence of any sort of physical force or contact, combined with the Fifth Circuit's hesitance to expand Rochin's holding beyond its specific facts, leads this Court to reject Defendant's argument that the Government's conduct here shocks the conscience. The Court thus won't suppress any evidence on that basis.
See Vasquez-Hernandez, 924 F.3d at 170 (emphasizing that the defendants had failed to identify "any Fifth Circuit case where an indictment was dismissed or a conviction reversed based on the outrageous conduct doctrine").
C. The Government Lawfully Kept Detaining Defendant After the Visual Cavity Search
According to Defendant, "[o]nce agents had performed" the visual cavity search
without finding any contraband, "there was no further justification for detaining her." Mot. at 8-9. In Defendant's view, the Government's failure to discover any contraband during the search dispelled whatever suspicion of internal drug smuggling the canine signal, the computer alert, and the earlier crossing might have produced. Reply at 6-7. The agents nonetheless "detained her in a holding cell through the evening," interviewed her twice, and xrayed her body. Mot. at 8; Reply at 5.
Defendant claims that her "detention beyond the cavity search was no longer 'reasonably related in scope to the circumstances which justified'" her detention up to that point, "and exceeded the time necessary to confirm or dispel reasonable suspicion." Mot. at 9 (quoting United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005)). Defendant thus insists that her continued detention was unlawful, and that the Court must therefore suppress all evidentiary "fruits derived from th[at] detention." Id. at 9; Reply at 5-7.
Defendant bases that argument, at least in part, on the Fifth Circuit's opinion in Lopez-Moreno. See Mot. at 8-9; Reply at 7. The defendant there moved to suppress evidence that the Government obtained during a traffic stop in inland Louisiana, rather than at an international port of entry. See 420 F.3d at 425, 428. He argued that once the police determined during that traffic stop that he had no outstanding warrants, it was unconstitutional for the police to keep detaining him, and that the district court should have consequently suppressed inculpatory evidence that the Government obtained after that point. See id. at 426, 432-33.
Applying Terry v. Ohio's standard for evaluating a stop-and-frisk's legality, the Fifth Circuit explained that a traffic stop is lawful only if it was (1) "justified at its inception" and (2) "reasonably related in scope to the circumstances which justified the interference in the first place." Lopez-Moreno, 420 F.3d at 430 (quoting Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). As to the second requirement, the court explained that any detention incident to a traffic stop "must be temporary and last no longer than is necessary to effectuate the purpose of the stop." Id. Ordinarily, the Fifth Circuit explained, if an officer performs a computer check on the vehicle and its occupants, and that check "come[s] back clean, there is no more reasonable suspicion, and, as a general matter, continued questioning thereafter unconstitutionally prolongs the detention." Id. But the court acknowledged an exception to that general rule: "[I]f additional reasonable suspicion arises in the course of the stop and before the initial purpose of the stop has been fulfilled, then the detention may continue until the new reasonable suspicion has been dispelled or confirmed." Id. at 431 (emphasis added). Because, for reasons not particularly relevant here, additional reasonable suspicion arose during the stop in Lopez-Moreno, the Fifth Circuit held that the district court properly denied the defendant's motion to suppress. See id. at 433-34.
Analogizing to Lopez-Moreno, Defendant argues that once the visual cavity search "produced negative results, any suspicion supporting [her] continued detention had dissipated," and her further detention "was no longer 'reasonably related in scope to the circumstances which justified the interference in the first place.'" Mot. at 9 (quoting Lopez-Moreno, 420 F.3d 420 at 430); see also Reply at 7.
The Court agrees with Defendant that Terry's "reasonably related in scope" requirement applies to border detentions and not just to stop-and-frisks and traffic stops. Compare Mot. at 8, with United States v. Montoya de Hernandez, 473 U.S. 531, 542, 105 S.Ct. 3304, 87 L.Ed.2d 381
(1985) (evaluating whether the detention a defendant suspected of smuggling drugs across the border in her alimentary canal "was reasonably related in scope to the circumstances which justified it initially").
But the Government has satisfied that requirement here because "additional reasonable suspicion ar[ose] in the course of" the visual cavity search "before the initial purpose of Defendant's detention "ha[d] been fulfilled." See Lopez-Moreno, 420 F.3d at 431. The visual cavity search did not, as Defendant claims, dispel any remaining suspicion that Defendant was trafficking drugs. Contra Mot. at 9. Although the CBP officer who performed the search did not discover contraband, she did observe dried blood on Defendant's undergarments and a substance resembling personal lubricant on her vaginal area. Because Defendant denied that she was menstruating, the officer could reasonably suspect that Defendant had recently inserted contraband into her body cavity, and that the contraband was sufficiently deep inside her body to evade detection via a purely visual examination. Cf. United States v. Cameron, 538 F.2d 254, 257 (9th Cir. 1976) (concluding that "the discovery of grease or lubricant in [the] appellant's rectal area," combined with other indicia of potential drug smuggling, "warranted the conclusion that narcotics might be concealed in the suspect's rectal cavity"); Goff v. Nix, 803 F.2d 358, 366 (8th Cir. 1986) (noting—in a different context—that the discovery of lubricant or blood during a visual cavity search indicates that the person may have hidden contraband in his body).
The Ninth Circuit ultimately concluded that although the Government had sufficient justification to initiate the search in Cameron, the Government conducted the search in an unduly intrusive manner that violated the Fourth Amendment. See 538 F.2d at 257-59. Because the cavity search in Cameron was far more invasive than the purely visual cavity search the Government performed here, Cameron supports rather than undermines this Court's conclusion that the search here was lawful. See id. at 256-59.
The Court acknowledges that the CBP officer who performed the visual cavity search could not conclusively determine that the substance on Defendant's body was in fact personal lubricant. The Court also recognizes, as Defendant's counsel ably emphasized at the suppression hearing, that there are other reasons why a woman's underwear might contain dried blood—or why a woman might have lubricant on her body—that are entirely consistent with lawful activity. "A determination that reasonable suspicion exists, however, need not rule out the possibility of innocent conduct." United States v. Arvizu, 534 U.S. 266, 277, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). Discovering blood and a substance resembling lubricant during the visual cavity search corroborated, rather than dispelled, the suspicions the agents developed from the positive canine alert, the confidential sources, and the earlier border crossing. It was therefore lawful for the Government to keep detaining Defendant and employ other methods to determine whether she was hiding drugs in her body.
See supra note 2 and accompanying text.
The Supreme Court's decision in Montoya de Hernandez bolsters the Court's conclusion that Defendant's detention "was reasonably related in scope to the circumstances which justified it initially." See 473 U.S. at 542, 105 S.Ct. 3304. The respondent in Montoya de Hernandez—like Defendant here—arrived at an international port of entry with drugs hidden in her body. Id. at 532-33, 105 S.Ct. 3304. Unlike Defendant, however, the respondent in Montoya de Hernandez was smuggling drugs in her alimentary canal—that is, by
encasing the drugs in balloons and swallowing them. Id. at 532-34, 105 S.Ct. 3304.
After the respondent provided customs inspectors an implausible story about her trip's purpose, the inspectors "suspected that [the] respondent was a 'balloon swallower.'" Id. at 534, 542, 105 S.Ct. 3304. A female inspector therefore performed a pat-down and strip search on the respondent. Id. at 534, 105 S.Ct. 3304. Although those examinations did not reveal any contraband, the inspections nonetheless corroborated the officers' suspicions because (1) the inspector felt "a firm fullness" in the respondent's abdomen, and (2) the respondent "was wearing two pairs of elastic underpants with a paper towel lining the crotch area." Id. The officers therefore told the respondent that they'd keep detaining her "until she agreed to an x ray or her bowels moved." Id. at 535, 105 S.Ct. 3304.
The respondent didn't consent to an x-ray. Id. at 534-35, 543, 105 S.Ct. 3304. Instead, she curled up in a chair in the customs office and exerted what the Court delicately described as "heroic efforts to resist the usual calls of nature." Id. at 535, 105 S.Ct. 3304. After 16 hours had passed without the respondent expelling the contraband, Customs applied for a warrant for an involuntary x-ray and rectal examination. Id. at 535, 542, 105 S.Ct. 3304. After several hours, the officers finally obtained that warrant, and a physician accordingly removed a balloon filled with cocaine from the respondent's body. Id. at 535, 542-43, 105 S.Ct. 3304. The respondent passed a total of 88 balloons over the next four days. Id. at 536, 105 S.Ct. 3304.
The respondent argued that her detention violated the Fourth Amendment because it was "unreasonably long." See id. at 544, 105 S.Ct. 3304. Disagreeing, the Supreme Court instead concluded that her detention "was reasonably related in scope to the circumstances which justified it initially." Id. at 542, 105 S.Ct. 3304. The Court reasoned that, "at the international border," the "Fourth Amendment balance of interests leans heavily to the Government" in light of historical tradition and the need to stop entrants from bringing unlawful or harmful items into the country. Id. at 537-38, 544, 105 S.Ct. 3304. The Court explained that no "hard-and-fast time limits" govern how long the Government may detain a suspected drug smuggler at the international border, and that "[a]uthorities must be allowed to graduate their response to the demands of any particular situation." Id. at 542-43, 105 S.Ct. 3304 (cleaned up). The Court reasoned that, once the respondent refused consent to an x-ray, it was reasonable for the Government to wait until the respondent passed the contraband. Id. at 543, 105 S.Ct. 3304. Once the respondent had successfully resisted that natural process for many hours, it was equally reasonable for the Government to keep her in custody until it obtained a warrant to extract the contraband by more proactive means. Id. at 542-43, 105 S.Ct. 3304. As the Court explained, the Government should not be "charge[d] ... with delays in investigatory detention attributable to the suspect's evasive actions." Id. at 543, 105 S.Ct. 3304. Although the respondent's "detention was long, uncomfortable, [and] indeed, humiliating," the Court reasoned that "both its length and discomfort resulted solely from the method by which she chose to smuggle illicit drugs into this country." Id. at 544, 105 S.Ct. 3304.
Here too, the Government permissibly graduated its response as each step of its investigation uncovered more corroborating evidence that Defendant was hiding drugs in her body. See id. at 542, 105 S.Ct. 3304. Faced with the alert based on the confidential sources' intelligence and the earlier border stop that uncovered fentanyl, it was reasonable to subject Defendant
to a canine sniff. Once the canine positively alerted to Defendant's buttocks, the totality of the circumstances justified a visual cavity search. When that search revealed dried blood and a lubricant-like substance consistent with body carrier smuggling, it was then reasonable to keep detaining Defendant for further investigation—even though the officer did not specifically see any contraband. Thus, each successive stage of Defendant's continued detention "was reasonably related in scope to the circumstances which justified it initially." See id.
The Court does not deny that, like the respondent's detention in Montoya de Hernandez, Defendant's detention was "long, uncomfortable, [and] humiliating." See id. at 544, 105 S.Ct. 3304. But also like Montoya de Hernandez, "its length and its discomfort resulted solely from the method by which [Defendant] chose to smuggle illicit drugs into this country"—a method that kept the drugs hidden even when an officer visually examined the most intimate parts of her body. See id.
Defendant stresses that Montoya de Hernandez is distinguishable because the extended border detention there "was justified by agents' awaiting a bowel movement." Mot. at 9. "[B]ecause agents suspected [Defendant] of transporting drugs vaginally as opposed to anally," Defendant argues, "the same justification did not support an extended detention" here. Id.
That distinction isn't dispositive. Like alimentary canal smuggling, the method of smuggling Defendant employed here could not "be detected in the amount of time in which other illegal activity may be investigated through brief Terry-type stops." See Montoya de Hernandez, 473 U.S. at 543, 105 S.Ct. 3304. "[A] quick frisk will not do, nor"—as the facts of this case amply demonstrate—"will even a strip search." See id. "In the presence of articulable suspicion of smuggling in her [vaginal] canal, the customs officers were not required by the Fourth Amendment to pass [Defendant] and her [bag full of fentanyl] into the interior" of the United States. Cf. id. at 544, 105 S.Ct. 3304. Instead, it was reasonable to detain Defendant "for the period of time necessary to either verify or dispel the suspicion." See id. Because the blood and the lubricant-like substance compounded rather than undermined the Government's suspicion that Defendant had hidden contraband so expertly that a visual cavity search could not detect it, the Government permissibly kept Defendant in custody for further investigation.
D. Defendant's Statements During the Second Interview Were Voluntary
As noted, the Government's next investigative step was to interview Defendant. After Defendant exercised her right not to speak with the agents, and law enforcement escorted her to a holding cell, she reportedly changed her mind and asked a CBP officer to summon the agents for a second interview. During that second interview, Defendant admitted to knowing about—but denied participating in—the fentanyl-smuggling ring.
According to Defendant, the Government's story that Defendant initially "invoked her right to counsel," but then "changed her mind and insisted on talking to them at length without counsel," "strains credulity." Mot. at 9-10. Instead, Defendant maintains, it is "considerably more plausible" that the Government unlawfully kept interrogating Defendant against her wishes after she invoked her constitutional rights. Id. at 10. On that basis, Defendant asks the Court to suppress her incriminating statements to the agents. Id. at 9-10. The Court credits HSI Special Agent Victor Flores's and HSI Task Force Officer Jose de Santiago's testimony at the suppression hearing that they did indeed stop questioning Defendant when she first invoked her right not to speak to them without counsel, and that Defendant nonetheless voluntarily reinstated communications with them shortly thereafter. That version of events does not, as Defendant insists, "strain credulity." Contra id. at 10. It's entirely plausible that, after failing to convince the agents that she knew nothing about the fentanyl-trafficking ring and then sitting in a holding cell a while, Defendant would recalibrate her strategy by admitting knowledge of the scheme but denying any involvement in it.
See also, e.g., United States v. Wright, 777 F.3d 769, 773-74 (5th Cir. 2015) ("If the accused indicates in any manner that he wishes to remain silent or to consult an attorney, interrogation must cease, and any statement obtained from him during interrogation thereafter may not be admitted against him at his trial. Not only must the current interrogation cease, but as the Supreme Court established in Edwards v. Arizona , law enforcement may not re-approach the suspect for further questioning until a lawyer has been made available." (cleaned up)).
The Court therefore makes the following factual findings:
(1) The Government stopped questioning Defendant once she invoked her right to remain silent; and
(2) Defendant voluntarily reinitiated communications with the agents.
The Court will therefore not suppress Defendant's statements to those agents.
See, e.g., Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) ("[A]n accused ... having expressed his desire to deal with [law enforcement] only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communications, exchanges, or conversations with [law enforcement]." (emphasis added)).
E. The Warrantless Forensic Search of Defendant's Cell Phone Did Not Violate the Fourth Amendment
Defendant next claims that, even though she didn't let the agents view her cell phone beyond the items she voluntarily showed them, the Government nonetheless performed a warrantless DOMEX inspection of her phone. Mot. at 11. A DOMEX inspection creates "a copy of the device's contents based on certain search parameters but does not damage or change the data on the device or disrupt the function of the device." United States v. Mendez, No. 16-cr-00163, 2021 WL 3187718, at *1 (N.D. Ill. July 28, 2021). Thus, in the terminology of Fourth Amendment caselaw, a DOMEX inspection is a "forensic" or "advanced" search—i.e., a search that uses "specialized software or connection of external equipment" to "review, copy, and/or analyze" a device's contents—as opposed to a "manual" or "basic" search, which does not. The Government performed the DOMEX inspection before obtaining the warrant to search her phone more thoroughly that the Court discusses below. Mot. at 12, 18; Phone Warrant Aff. at 6 (mentioning the DOMEX inspection in the Phone Warrant Application, thereby indicating that the Government performed the DOMEX inspection before obtaining that warrant); see also infra Section II.G. The DOMEX inspection uncovered incriminating photos and conversations, and the Government relied on that incriminating evidence when it applied for the phone warrant. See Phone Warrant Aff. at 6-7. According to Defendant, the DOMEX inspection was unlawful because the Government conducted it without her consent and without a warrant. Mot. at 12.
See, e.g., United States v. Kamaldoss, No. 19-CR-543, 2022 WL 1200776, at *10 n.9 (E.D.N.Y. Apr. 22, 2022) (explaining the distinction between the two types of searches); United States v. Aigbekaen, 943 F.3d 713, 718 n.2 (4th Cir. 2019) (same); see also United States v. Bongiovanni, No. 1:19-CR-227, 2022 WL 17481884, at *4-5 (W.D.N.Y. Aug. 5, 2022), report and recommendation adopted by 2022 WL 17139489 (W.D.N.Y. Nov. 22, 2022) (characterizing DOMEX searches as "forensic" or "advanced" searches).
But see Alasaad v. Mayorkas, 988 F.3d 8, 13 n.3 (1st Cir. 2021) (noting that although "'[a]dvanced' searches are sometimes referred to as 'forensic' searches," the "terms are not precisely co-extensive," but ultimately determining that "any difference [wa]s immaterial" in Alasaad).
See also Mot. at 12 (agreeing that the DOMEX inspection "was not a simple manual search of the phone, but a forensic examination").
As noted, the Court rejects the Government's claim that it based the search warrant affidavit exclusively on evidence that Defendant voluntarily showed agents during the second interview, and did not rely on any evidence it obtained during the DOMEX search. See supra note 6.
1. Forensic Device Searches at the Border Do Not Require a Warrant or Probable Cause
As noted, warrantless, nonconsensual searches "are per se unreasonable" under the Fourth Amendment "unless they fall within a few narrowly defined exceptions," e.g., Roberts, 274 F.3d at 1011, such as the border search exception, see supra Section II.A.2. Whether—and under what circumstances—the border search exception empowers the Government to forensically search electronic devices without a warrant "is an area of evolving jurisprudence" that has divided federal courts. Although the Fifth Circuit has invoked the Fourth Amendment's "good faith exception" to decline to suppress evidence obtained from such searches, it has not squarely decided whether such searches are constitutional. However, other courts have almost unanimously concluded that the Government need neither obtain a warrant nor have probable cause to forensically search a suspect's electronic device at the border. This Court follows the weight of authority and concludes that the Government's failure to obtain a warrant before performing the DOMEX inspection does not alone render it unlawful.
Kamaldoss, No. 19-CR-543, 2022 WL 1200776, at *10; see also, e.g., Bongiovanni, 2022 WL 17481884, at *14 (similar); United States v. Molina-Isidoro, 884 F.3d 287, 294 (5th Cir. 2018) (Costa, J., specially concurring) (similar).
See Aguilar, 973 F.3d at 449-50 ("Under [the good faith] exception, evidence is not to be suppressed where it is discovered by officers in the course of actions that are taken in good faith and in the reasonable, though mistaken, belief that they are authorized. This exception thus applies when government officials acted reasonably in light of the law existing at the time of the search.... Neither this court nor the Supreme Court has announced whether forensic digital border searches require individualized suspicion.... Given the state of the law at the time Aguilar's phone was forensically searched, we conclude that the border agents had a good faith, reasonable belief that they could search Aguilar's phone without obtaining a warrant." (cleaned up)); United States v. Tenorio, 55 F.4th 465, 469 (5th Cir. 2022) ("[W]e do not address the constitutionality of the search of Tenorio's cell phones."); see also Molina-Isidoro, 884 F.3d at 290 (explaining that a court need not "decid[e] the underlying constitutional issue" of whether a search violated the Fourth Amendment if the search satisfies the good faith exception).
Rather than invoking the good faith exception and leaving the constitutional question unresolved as the Fifth Circuit did in Aguilar, this Court will decide the Fourth Amendment issue here. Where, as here, "a Fourth Amendment case presents a novel question of law whose resolution 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." Aigbekaen, 943 F.3d at 719 (cleaned up). But see Molina-Isidoro, 884 F.3d at 293-94 (Costa, J., specially concurring) (agreeing that courts should generally "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," but nonetheless cautioning against "announcing general principles that would fix precedent in [the] rapidly changing area" of cell phone searches at the border).
See, e.g., United States v. Vergara, 884 F.3d 1309, 1312 (11th Cir. 2018) ("The forensic searches of Vergara's phones required neither a warrant nor probable cause."); Alasaad, 988 F.3d at 13 ("We join the Eleventh Circuit in holding that advanced searches of electronic devices at the border do not require a warrant or probable cause."); Bongiovanni, 2022 WL 17481884, at *11-12 (similar).
See also Aguilar, 973 F.3d at 449 (observing that, at the time the Government conducted the search challenged in Aguilar, "no court had required a warrant to conduct a forensic search of a cellphone at the border").
But cf. United States v. Kolsuz, 890 F.3d 133, 147 (4th Cir. 2018) (declining to decide whether certain nonroutine device searches at the border require probable cause, but agreeing that they don't necessarily require a warrant).
2. The Government's Authority to Conduct Warrantless Forensic Device Searches at the Border is Not Limited to Searching for Digital Contraband
The Court must also consider whether the Government's authority to perform a warrantless forensic device search at the border is "limited in scope to a search for digital contraband" on the phone itself (like child pornography), as opposed to evidence that a suspect may be smuggling nondigital contraband (like narcotics). See United States v. Cano, 934 F.3d 1002, 1007, 1014, 1018 (9th Cir. 2019) (emphasis added). The Ninth Circuit adopted such a limitation in a case called United States v. Cano, see id., and so has at least one district court outside the Ninth Circuit. Most courts that have considered the question, however, have declined to follow Cano. The Fifth Circuit has not yet taken a position on that issue, but a former Fifth Circuit Judge wrote a concurring opinion suggesting that such a limitation could be appropriate.
See United States v. Carpenter, No. 20 CR 376-2, 2023 WL 358794, at *4 (N.D. Ill. Jan. 23, 2023).
See, e.g., Alasaad, 988 F.3d at 19-21 ("[T]he border search exception is not limited to searches for contraband itself rather than evidence of contraband or a border-related crime."); Bongiovanni, 2022 WL 17481884, at *12 n.18 ("Unlike the ... Ninth Circuit[], the Court does not find that officers here needed reasonable suspicion of digital contraband ... to conduct a nonroutine examination of Bongiovanni's phone." (emphasis omitted)); United States v. Almadaoji, 567 F. Supp. 3d 834, 840 (S.D. Ohio 2021) (noting that, at least in 2021, "[n]o court other than the Ninth Circuit" had adopted the "restrictive view" that border device searches are "limited to a determination of whether the phone contains digital contraband such as child pornography" (emphasis omitted)); United States v. Pulido, No. 8:20-cr-292, 2021 WL 3476600, at *8 (M.D. Fla. July 2, 2021), report and recommendation adopted by 2021 WL 3471696 (M.D. Fla. Aug. 6, 2021) (opining that "the greater weight of authority largely supports the ... position that an advanced border search of an electronic device is not confined to contraband").
See Aguilar, 973 F.3d at 450 n. 1 ("Because Cano was decided after the search of Aguilar's phone, we do not consider its holding in assessing whether the agents acted in good faith.").
See Molina-Isidoro, 884 F.3d at 294-97 (Costa, J., specially concurring); see also Cano, 934 F.3d at 1014, 1018 (citing Judge Costa's concurrence to support its holding).
In Cano, the Government performed several increasingly thorough warrantless searches of the defendant's cell phone after CBP found 14 kilograms of cocaine in his vehicle's spare tire when he tried crossing
the border. 934 F.3d at 1008-09. Those searches revealed evidence undermining the defendant's claim that he was unaware of the drugs and had only crossed the border to seek work at a carpet store. See id.
The Ninth Circuit ruled that the searches violated the Fourth Amendment, and that the district court should have suppressed that evidence. Id. at 1007, 1010. Although the Ninth Circuit adopted the majority view that the Government need not necessarily obtain a warrant or have probable cause to search a cell phone at the border, it also held that "border officials may conduct a [warrantless] forensic cell phone search only when they reasonably suspect that the cell phone to be searched itself contains contraband." Id. at 1020 (emphasis added). Because the border officials in Cano had searched for evidence of drug crime rather than for digital contraband on the phone itself, the Ninth Circuit concluded that searches were unlawful. Id. at 1017, 1019 (emphasis added). For instance, the Ninth Circuit concluded, "the border search exception d[id] not justify" the HSI agent's decision to "record[] ... phone numbers and text messages" on the defendant's phone "for further processing, because that action ha[d] no connection to ensuring that the phone lack[ed] digital contraband." Id. at 1019.
Specifically, the Ninth Circuit ruled that warrantless "manual searches of cell phones at the border"—which this case doesn't involve, see supra note 19 and accompanying text—"are reasonable without individualized suspicion," but a warrantless "forensic examination of a cell phone" at the border "requires a showing of reasonable suspicion," Cano, 934 F.3d at 1016 (emphasis added).
Respectfully, this Court finds Cano unpersuasive. To justify its "distinction between searches for contraband and those for evidence that may reveal the importation of contraband," Cano, 934 F.3d at 1018 (emphasis added) (quoting Molina-Isidoro, 884 F.3d at 296 (Costa, J., specially concurring)), Cano cited the Supreme Court's 1886 opinion in Boyd v. United States, which states:
The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man's private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him ... In the one case, the government is entitled to the possession of the property; in the other it is not.
116 U.S. 616, 623, 6 S.Ct. 524, 29 L.Ed. 746 (1886), overruled in part by Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).
As the Supreme Court remarked 90 years after Boyd, however, "[s]everal of Boyd's express or implicit declarations have not stood the test of time." Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). As relevant here, in its 1967 decision in Warden v. Hayden , the Supreme Court held that—at least for the purposes of determining which materials may "be seized either under the authority of a search warrant or during the course of a search incident to arrest"—"there is no viable reason to distinguish intrusions to secure 'mere evidence' from intrusions to secure ... contraband." 387 U.S. at 296, 310, 87 S.Ct. 1642. Although the Supreme Court acknowledged that its prior cases had drawn a "distinction ... between seizure of items of evidential value only and seizure of ... contraband," Hayden "reject[ed] th[at] distinction as based on premises no longer accepted as rules governing the application of the Fourth Amendment." Id. at 300-01, 87 S.Ct. 1642; see also Fisher, 425 U.S. at
407, 96 S.Ct. 1569 (explaining that Hayden stands for the proposition that "[p]urely evidentiary ... materials, as well as contraband ... may now be searched for and seized under proper circumstances").
Cano does not explain why Boyd's distinction between contraband and "mere evidence" of crime survives Hayden. See 934 F.3d at 1018. Moreover, the Fifth Circuit recently relied on Hayden to reject such a distinction in a different context. See Okorie v. Crawford, 921 F.3d 430, 435 (5th Cir. 2019) (holding, in the context of evaluating whether the Government may lawfully detain the occupant of a business its searching pursuant to an administrative search warrant, that "treating searches for evidence and contraband the same is consistent with the modern rejection of the 'mere evidence' rule that once pervaded Fourth Amendment doctrine" (citing Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782)). This Court therefore doubts that the Fifth Circuit would recognize such a distinction here.
See also United States v. Pulido, No. 8:20-cr-292, 2021 WL 3476600, at *9 (M.D. Fla. July 2, 2021), report and recommendation adopted by 2021 WL 3471696 (M.D. Fla. Aug. 6, 2021) (agreeing that Hayden undermines Cano's holding).
Although the Ninth Circuit made no effort to explain why Boyd survives Hayden, former Fifth Circuit Judge Gregg Costa wrote a concurring opinion offering two "reasons to believe the distinction" between "searches for contraband and those for evidence that may reveal the importation of contraband" "still matters when it comes to border searches." Molina-Isidoro, 884 F.3d at 296 & n.7 (Costa, J., specially concurring). First, Judge Costa argued, "in a number of decisions since Hayden[,] the Supreme Court has continued to chiefly rely on the detection-of-contraband rationale in supporting the government's broad border-search authority." Id. at 296 n.7. Second, "[f]rom a broader jurisprudential perspective, Hayden rejected the distinction as one based on a 'discredited' ... view" that "the authority to seize property extended only to objects in which the subject of the search had forfeited an interest to the government because of the item's illegality." Id. (cleaned up). According to Judge Costa, however, that "property[-based] view of the Fourth Amendment" is currently "enjoying a resurgence" at the Supreme Court. Id. (citing Florida v. Jardines, 569 U.S. 1, 5, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013); United States v. Jones, 565 U.S. 400, 404-05, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012)).
With sincerest respect for Judge Costa, this Court remains unconvinced. As to his first argument, the evidentiary search challenged here fits comfortably within the border search exception's "detection-of-contraband rationale" because the Government performed the DOMEX inspection to help prove that Defendant tried sneaking contraband into the country with intent to distribute. As to Judge Costa's second argument, the Court agrees that some of the Supreme Court's post-Hayden Fourth Amendment opinions invoke the property-rights-based justifications for the constitutional ban on unreasonable searches and seizures. However, both of the Supreme Court cases Judge Costa cites in his concurrence still recognize that "property rights are not the sole measure of Fourth Amendment violations." Moreover, neither of those cases addresses whether Hayden's repudiation of Boyd's distinction between contraband and "mere evidence" of crime remains good law. Because, even after Jardines and Jones, the Fifth Circuit still cites Hayden to reject such distinctions in other contexts, see Okorie, 921 F.3d at 435, this Court will likewise rely on Hayden to reject that distinction here.
This is therefore not a case where officers searched for evidence of non-border-related offenses. For example, the Cano court hypothesized that if—counterfactually—border officials instead suspected that the defendant was "engaged in price fixing," they could not "conduct a forensic search of his phone or laptop" for "[e]vidence of price fixing," as such evidence "is not itself contraband whose importation is prohibited by law." 934 F.3d at 1017. As explained below, this Court does not now decide whether a search for crime that lacks any "nexus" to the border search exception's purposes would violate the Fourth Amendment, as any requisite nexus is present here. See infra Section II.E.4.
Nor is this case where "border agents conduct[ed] a warrantless search for evidence of past or future border-related crimes," or for "evidence of contraband that is not present at the border." See Cano, 934 F.3d at 1018 (some emphases added; others omitted) (holding that courts may not do so). While it's unclear from the record whether the Government performed the DOMEX inspection before or after they found the fentanyl in her body, it appears it performed the DOMEX search to help determine whether Defendant was in the process of sneaking contraband across the border during that particular crossing. The Court thus does not now decide whether immigration officials may lawfully search a phone for evidence that a suspect committed a border-related crime during an earlier crossing or intends to commit such a crime during a future crossing.
Compare Hayden, 387 U.S. at 304, 87 S.Ct. 1642 ("The premise that property interests control the right of the Government to search and seize has been discredited ... We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts."), with, e.g., Jones, 565 U.S. at 405, 132 S.Ct. 945 (discussing "the significance of property rights in search-and-seizure analysis" and opining that "[t]he text of the Fourth Amendment reflects its close connection to property").
Jardines, 569 U.S. at 5, 133 S.Ct. 1409 (cleaned up); see also Jones, 565 U.S. at 405, 132 S.Ct. 945 (recognizing that the Court's "later cases ... have deviated from that exclusively property-based approach").
See Jardines, 569 U.S. at 3-12, 133 S.Ct. 1409; Jones, 565 U.S. at 402-13, 132 S.Ct. 945.
Cano also based its conclusion on the fact that cell phones implicate unique privacy concerns. See 934 F.3d at 1020. Relying on the Supreme Court's decision in Riley v. California—which held that police officers must ordinarily "get a warrant" "before searching a cell phone seized incident to an arrest" rather than a cell phone seized at the border, 573 U.S. 373, 403, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) (emphasis added)—the Ninth Circuit stressed that "modern cell phones are 'minicomputers' with 'immense storage capacity'" that "carry a cache of sensitive personal information," Cano, 934 F.3d at 1020 (quoting Riley, 573 U.S. at 393, 395, 134 S.Ct. 2473). If "the government could conduct a full forensic search of every electronic device or anyone arrested at the border" without a warrant, the Ninth Circuit reasoned, that "would enable the government to evade the protections laid out in Riley." 934 F.3d at 1020.
Cf., e.g., Carpenter v. United States, — U.S. —, 138 S. Ct. 2206, 2218, 201 L.Ed.2d 507 (2018) ("[A] cell phone—almost a feature of human anatomy—tracks nearly exactly the movements of its owner ... Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone's user." (cleaned up)).
Riley explicitly acknowledged, however, that "even though the search incident to arrest exception" to warrant requirement "does not apply to cell phones" because of their unique capabilities, "other case-specific exceptions may still justify a warrantless search of a particular phone." 573 U.S. at 401-02, 134 S.Ct. 2473. For that reason,
See also Riley, 573 U.S. at 402, 134 S.Ct. 2473 ("One well-recognized exception applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment. Such exigencies could include the need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury." (cleaned up)).
courts have generally concluded that Riley's concerns about the privacy implications of searching cell phones do not override the border search exception to the warrant requirement. This Court therefore disagrees with Cano's conclusion that cell phones' special attributes support cabining the border search exception's applicability to searches for digital contraband.
See, e.g., Vergara, 884 F.3d at 1313 ("Border searches have long been excepted from warrant and probable cause requirements, and the holding of Riley does not change this rule. Vergara points to language from Riley about the 'consequences for privacy' involved in a search of a cell phone. But this language does not help him."); Almadaoji, 567 F. Supp. 3d at 839 ("[E]ven though [Riley teaches that] searches of cell phones and other electronic devices implicate significant privacy concerns, the constitutional limits for border searches remain the same."); United States v. Xiang, No. 4:19CR980, 2021 WL 4810556, at *1 (E.D. Mo. Oct. 15, 2021) ("[T]he reasoning of Riley with regard to searches incident to arrest does not apply to the rationale for warrantless border searches; the two exceptions apply to entirely different scenarios for which warrant exceptions are necessary.").
Cf. Aguilar, 973 F.3d at 450 ("[A]lthough Riley made clear that individuals have a heightened privacy interest in smart phones, this court has held postRiley that border agents acted reasonably when they 'continue[d] to rely on the robust body of preRiley caselaw that allowed warrantless border searches of computers and cell phones.'" (quoting Molina-Isidoro, 884 F.3d at 292)).
But cf. Kolsuz, 890 F.3d at 145-46 ("The key to Riley's reasoning is its express refusal to treat [cell] phones as just another form of container, like the wallets, bags, address books, and diaries covered by the search incident exception. Instead, Riley insists, cell phones are fundamentally different [because of their] the 'immense storage capacity' ... putting a vastly larger array of information at risk of exposure; the special sensitivity of the kinds of information that may be stored on a phone, such as browsing history and historical location data; and, finally, the 'element of pervasiveness that characterizes cell phones,' making them an 'insistent part of daily life.' After Riley, we think it is clear that a forensic search of a digital phone must be treated as a nonroutine border search, requiring some form of individualized suspicion." (internal citations omitted)).
In sum, the fact that the Government searched Defendant's phone for evidence of involvement in drug trafficking, rather than for digital contraband, does not render that search unconstitutional.
3. The Court Need Not Decide Whether Warrantless Forensic Device Searches at the Border Require Reasonable Suspicion Because the Government Has Satisfied that Standard
Courts have also disagreed over whether the Government needs reasonable suspicion to conduct a warrantless forensic device search at the border, or if it may instead perform such searches without any particularized suspicion. The Fifth Circuit has not yet taken a position on that issue either. The Court need not decide which standard applies because the Government has satisfied the more demanding reasonable suspicion standard. The Court concluded above that the Government had reasonable suspicion to perform a visual cavity search here because of the drug dog's alert, the information from the confidential sources implicating Defendant in the narcotics trafficking ring, and the fentanyl the Government discovered during Defendant's earlier border crossing. See supra Section II.A.4. Just as those circumstances created sufficient reasonable suspicion to justify that intrusive search, they also created sufficient reasonable suspicion to perform a nonroutine forensic search of Defendant's phone. Cf. Kamaldoss, 2022 WL 1200776, at *11 (E.D.N.Y. Apr. 22, 2022) (fact that defendant "had been identified by two confidential informants as a conspirator in [a transnational controlled substance] importation and distribution scheme," combined with other indicia of unlawful activity, gave Government sufficient reasonable suspicion to perform a forensic search of the defendant's devices at the border); see also United States v. Saboonchi, 990 F. Supp. 2d 536, 569 (D. Md. 2014) (metaphorically describing a forensic search as "a body cavity search of a" device).
Compare, e.g., United States v. Touset, 890 F.3d 1227, 1229, 1237-38 (11th Cir. 2018) (concluding that "no suspicion is necessary" to conduct "a forensic search of an electronic device at the border"), with, e.g., Cano, 934 F.3d at 1016 ("[T]he forensic examination of a cell phone [at the border] requires a showing of reasonable suspicion."), and Bongiovanni, 2022 WL 17481884, at *12 n.19, *13 (declining to follow Touset and instead holding that nonroutine border searches of cell phones "require[] reasonable suspicion"), and United States v. Roggio, No. 3:CR-18-0097, 2021 WL 5088240, at *6 (M.D. Pa. Nov. 2, 2021) (similar holding).
See, e.g., Malik v. U.S. Dep't of Homeland Sec., 619 F.Supp.3d 652, 661 (N.D. Tex. 2022) ("[T]he Fifth Circuit has yet to decide whether a forensic search of a digital phone is a non-routine border search that requires some form of individualized suspicion, or whether a forensic search is a routine border search requiring no individualized suspicion."); Anibowei v. Barr, No. 3:16-CV-3495, 2019 WL 623090, at *7 (N.D. Tex. Feb. 14, 2019) (observing that "there is currently a circuit split" over "whether the Constitution prohibits the government from conducting suspicionless searches of individuals' electronic devices at the border," and "[t]he Fifth Circuit has not yet chosen a side"); United States v. Ramirez, No. 18-CR-3530, 2019 WL 3502913, at *14 (W.D. Tex. Aug. 1, 2019) (making similar observations).
See, e.g., Ramirez, 2019 WL 3502913, at *14 ("The Court concludes that it is unnecessary to decide whether the search of an individual's cell phone is a routine or nonroutine border search because, even if such a search is nonroutine, the search in this case was supported by reasonable suspicion."); Malik, 619 F.Supp.3d at 660-61 (similar); United States v. Smasal, No. CRIM. 15-85, 2015 WL 4622246, at *9 (D. Minn. June 19, 2015) (similar).
See also, e.g., Vergara, 884 F.3d at 1313 ("At the border, the highest standard for a search is reasonable suspicion."); Aguilar, 973 F.3d at 450 (noting that, at the time the agents conducted the search in Aguilar, reasonable suspicion was "the highest level of suspicion that" any court had required for forensic device searches at the border).
The suppression hearing record does not clarify exactly when the Government performed the DOMEX inspection. If the Government did so after Defendant voluntarily showed the HSI Special Agents incriminating information on her phone and/or after the CBP officer discovered blood and a lubricant-like substance while performing the visual cavity search, those discoveries would further bolster the Government's reasonable suspicion that Defendant could have additional evidence of drug trafficking activity on her phone.
4. The Court Need Not Decide Whether Warrantless Forensic Device Searches at the Border Must Bear Some "Nexus" to the Border Search Exception's Purposes
Nor must this Court decide whether—as some (but not all) courts have held—the requisite suspicion must "bear[] some nexus to the border search exception's purposes of protecting national security, collecting duties, blocking the entry of unwanted persons, or disrupting efforts to export or import contraband." Any such required nexus would exist here because
Compare, e.g., Aigbekaen, 943 F.3d at 721 (4th Cir. 2019) (adopting that requirement), and Roggio, 2021 WL 5088240, at *6-8 (following Aigbekaen), and Carpenter, 2023 WL 358794, at *3-4 (same), with, e.g., Bongiovanni, 2022 WL 17481884, at *12 n.18 (concluding, "[u]nlike the Fourth ... Circuit[]," that law enforcement officers do not need "reasonable suspicion of ... a border-related crime to conduct a nonroutine examination of Bongiovanni's phone," but rather need only "reasonable suspicion of some type of criminal activity" (emphasis omitted)).
the Government reasonably suspected Defendant of attempting to import contraband into the United States—an offense at the border search exception's core.
See Kamaldoss, 2022 WL 1200776, at *11 (declining to decide whether to adopt Aigbekaen's nexus requirement because border agents had "a reasonable basis for believing that [the defendant] was engaged in efforts to illegally import scheduled drugs from abroad, an offense directly tied to at least one of the historic rationales for the border exception—the disruption of efforts to import contraband"); cf. Kolsuz, 890 F.3d at 147 n.7 (determining that border agents' suspicion "that their search of [the defendant]'s phone would reveal ... evidence of ongoing efforts to smuggle firearms over the border" was "enough to 'tether' the search to the rationale behind the border exception").
Thus, the DOMEX inspection did not violate the Fourth Amendment, so the Court won't suppress any evidence on that basis.
F. The Court Will Not Suppress Evidence the Government Obtained Pursuant to the Body Search Warrant
Defendant also moves to suppress all evidence obtained pursuant to the warrant to search her body. Mot. at 12-17; Reply at 9-12.
1. The Government Did Not Base the Warrant on Unlawfully Obtained Evidence
As Defendant observes, "much of the information contained in the affidavit" supporting the Body Search Warrant Application "was the direct product" of the visual cavity search, her extended detention, and the two interviews. Mot. at 17; see also Body Warrant Aff. at 5-6. Because Defendant maintains that those actions "were clearly unlawful," she claims the Court must "suppress any evidence obtained as a result of the Body Warrant and any fruits, including the fentanyl allegedly recovered from [her] body." Mot. at 15-17; see also Reply at 11-12.
Defendant's argument fails because the visual cavity search, the extended detention, and the questioning were lawful. See supra Sections II.A-D. Thus, the Body Search Warrant was not based on unlawfully obtained evidence.
2. The Affidavit Supporting the Body Search Warrant Was Not "Deliberately or Recklessly False"
Defendant also contends that the Body Search Warrant affidavit "included intentional falsehoods and omissions." Mot. at 15. According to Defendant, if those alleged misstatements "were set aside, the remaining content" of the affidavit "would have been insufficient to establish probable cause" for Judge Berton to issue the warrant. Id. The Defendant therefore asks the Court to suppress the evidence the Government obtained pursuant to that warrant. Id. at 13-15; Reply at 10-11.
As the Supreme Court recognized in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Fourth Amendment protects a person's right "to be free from search pursuant to a warrant that lacks probable cause due to knowing or reckless misstatements," Davis v. Hodgkiss, 11 F.4th 329, 333 (5th Cir. 2021). A court must therefore void a warrant if the defendant shows by a preponderance of the evidence that
(1) "the affidavit supporting the warrant contained a false statement made intentionally or with reckless disregard for the truth;" and
(2) "after setting aside the false statement, the affidavit's remaining content is insufficient to establish probable cause."
United States v. Kendrick, 980 F.3d 432, 440 (5th Cir. 2020) (cleaned up). "To determine if an allegedly false statement is necessary to the finding of probable cause" under the test's second prong, "the court must consider the affidavit as if those false statements were removed and consider whether the remaining content would still support a probable cause finding." E.g., Garcia v. Orta, 47 F.4th 343, 352 (5th Cir. 2022) (cleaned up). Put another way, a court will only void a warrant under Franks if "the allegedly false statements [were] material to the finding of probable cause." Arizmendi v. Gabbert, 919 F.3d 891, 898 (5th Cir. 2019) (emphasis added).
To evaluate "whether probable cause exists without the false statements," a court must "make a practical, commonsense decision as to whether, given all the circumstances set forth in the affidavit minus the alleged misstatements, there is a fair probability that contraband or evidence of a crime will be found." Davis, 11 F.4th at 334 (cleaned up). "Probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." Winfrey v. Rogers, 901 F.3d 483, 495 (5th Cir. 2018) (cleaned up) (emphasis added).
The Franks doctrine doesn't just apply to false statements in search warrant affidavits; it also applies to material omissions from such affidavits. E.g., Marks v. Hudson, 933 F.3d 481, 487 (5th Cir. 2019). "To determine whether facts omitted from a warrant affidavit are material to the determination of probable cause, courts ordinarily insert the omitted facts into the affidavit and ask whether the reconstructed affidavit would still support a finding of probable cause." Id. at 487-88 (cleaned up).
a. Defendant's Citizenship Status
In the portion of his affidavit describing Defendant's earlier border crossing—during which law enforcement personnel reportedly found fentanyl in the vehicle's center console—the affiant stated that Defendant "applied for admission" into the country "claiming to be a US citizen." Body Warrant Aff. at 4 (emphasis added). Defendant is a U.S. citizen, and the affiant admitted at the suppression hearing that he knew that. Defendant therefore infers that that sentence in the affidavit was "designed to mislead" Judge Berton by causing her to "presume that [Defendant] had falsely claimed citizenship;" "otherwise," claims Defendant, "the statement is purely nonsequitous." Mot. at 14-15 (emphasis omitted).
A statement in an affidavit that is merely "imprecise" does not qualify as a false statement under Franks if "it reasonably could be read as truthful." United States v. Ortega, 854 F.3d 818, 826 (5th Cir. 2017). It is literally true that Defendant "claim[ed] to be a US citizen" because she is one. See Body Warrant Aff. at 4. While it would have been more precise for the affiant to say something like "Defendant, who is a U.S. citizen, applied for admission to the United States," there is nothing false about the statement as drafted.
Even if there was, it wouldn't matter. Again, a court will not void a warrant under Franks unless "the allegedly false statements [were] material to the finding of probable cause." Arizmendi, 919 F.3d at 898 (emphasis added). It's illegal for anyone—U.S. citizen or otherwise—to smuggle controlled substances into the United States. Whether there was probable
See 21 U.S.C. § 841(a)(1) ("Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally ... to ... possess with intent to ... distribute ... a controlled substance." (emphasis added)); id. § 952(a) ("It shall be unlawful ... to import into the United States from any place outside thereof, any controlled substance in schedule I or II of subchapter I, or any narcotic drug in schedule III, IV, or V of subchapter I...." (emphasis added)).
cause to suspect that Defendant was hiding drugs in her body cavity would therefore not depend on her citizenship status. Thus, even if the affiant had drafted the affidavit more precisely, it would not have affected Judge Berton's decision to issue the warrant.
b. Defendant's Earlier Border Crossing
Defendant further complains that the affiant's description of Defendant's earlier border crossing "is devoid of details, and confusing. It does not explain whether or why [Defendant] was released if she was previously discovered in possession of fentanyl, or whether the other individuals in that vehicle are the unnamed 'Cooperating Defendants[ ]' that provided information about" Defendant. Mot. at 15; see also Body Warrant Aff. at 4-5.
Defendant does not identify any statements in that portion of the affidavit that are false. See Mot. at 15. Nor does Defendant explain why any of the missing details about her earlier border crossing would alter the probable cause calculus. See id. The Court will therefore not void the warrant on that basis.
c. Defendant's Statements to the HSI Special Agents
Defendant next attacks the portions of the affidavit discussing her two interviews with the agents—specifically, the statements that she initially "agreed to speak with the agents without the presence of an attorney," then ceased questioning, then decided "to speak with the agents for a second time without the presence of an attorney." See Body Warrant Aff. at 5-6; see also Mot. at 15 & n.3 (claiming that the affidavit "potentially misrepresents th[e] nature of the interrogation of" Defendant "and her willingness to speak to agents without an attorney present," and requesting a hearing to explore that issue). Because the Court finds that the affiant's description of the two interviews was accurate, see supra Section II.D, the Court won't invalidate the warrant on that basis either.
d. The Affiant's Characterization of the Visual Cavity Search as a "Pat-Down"
Finally, Defendant accuses the affiant of purposefully mischaracterizing the visual cavity search as a "supervisory-approved pat-down." See Body Warrant Aff. at 5 (emphasis added); see also Mot. at 14; Reply at 10. In Defendant's view, that search was no mere "pat-down"—she "was forced to remove her clothing, squat repeatedly, and bend forward to expose her vagina and rectum for inspection." Mot. at 14; see also Reply at 10. Defendant thus asserts that describing the search as a "pat-down" misleadingly "minimized the thoroughness of the cavity search, so that" Judge Berton "would not know that an extensive search had already produced no meaningful evidence." Mot. at 14; see also Reply at 10-11. Thus, claims Defendant, Judge Berton erroneously "believe[d] a warrant was needed to conduct precisely the type of invasive search that, unbeknownst to [her], had already been performed." Mot. at 14; see also Reply at 11.
It's debatable whether the affiant intentionally or recklessly made a false statement (or material omission) by calling the visual cavity search a "pat-down." On one hand, the CBP officer who performed the visual cavity search testified at the suppression hearing that her agency uses the phrase "partial pat-down" to describe visual cavity searches. If the affiant was merely using a common term of art in his field
to describe the search the Government had performed on the Defendant, he might not have been intentionally or recklessly misrepresenting the nature of that search.
But the affiant didn't say "partial pat-down;" he just said "pat-down." See Body Warrant Aff. at 5 (emphasis added). The suppression hearing record indicates that a "pat-down" and a "partial pat-down" are two different things: whereas a "pat-down" consists of merely "palpating the outer garments," a "partial pat-down" requires suspects to "take off their underwear and their pants." If that's true, then describing the search as a mere "pat-down" might have been literally false.
On the other hand, it doesn't make much sense to interpret "pat-down" as describing anything but a visual cavity search. The affidavit states that, while performing the "supervisory-approved pat-down," the CBP officer "observed [Defendant's] underwear to have what appeared to be lubricant and blood on the inside." Id. If the officer had merely palpated Defendant's outer garments, she could not have possibly known what was in Defendant's underwear.
The Court will therefore not base its ruling on whether describing the search as a "pat-down" was a false statement or material omission; nor will the Court decide whether the affiant made that alleged misstatement intentionally or recklessly. The Court will instead
(1) assume arguendo that the phrase "pat-down" was an intentional material misstatement;
(2) remove that phrase from the affidavit;
(3) replace it with the phrase "visual cavity search;" and
(4) determine whether that hypothetical corrected affidavit would have established probable cause for a warrant.
See, e.g., Garcia, 47 F.4th at 352; Marks, 933 F.3d at 487-88.
It would have. Judge Berton would have gathered from the affidavit that although the CBP officers had performed a visual cavity search "with negative results for narcotics," they saw "what appeared to be lubricant and blood on the inside" of Defendant's undergarments. See Body Warrant Aff. at 5. Because Defendant denied being "on her menstrual cycle," see id., those fluids suggested that Defendant might have inserted contraband sufficiently deep inside her body that a mere visual inspection could not reveal them.
Based on those averments and the affidavit's remaining content, Judge Berton could have reasonably concluded that there was a "fair probability" that an x-ray examination would reveal "contraband or evidence of a crime" that the visual cavity search did not uncover. See Davis, 11 F.4th at 334 (cleaned up). The affidavit states that two cooperating informants had identified Defendant as "an internal body carrier who smuggles ... fentanyl from Mexico into the United States." Body Warrant Aff. at 5. The affidavit further avers that a "K-9 alerted to the ... odor" of narcotics "emanating from" Defendant, further suggesting that Defendant might have contraband inside her body even though the visual cavity search produced "negative results." Id. Thus, even if the affiant had used the phrase "visual cavity search" instead of "pat-down," Judge Berton would still have probable cause to issue the warrant. Cf. Paulino, 2011 WL 2268478, at *1-4 (upholding warrant to x-ray defendant for narcotics in his body based on a "positive alert from [a] drug detector dog," "anonymous tips to authorities" that the defendant would attempt to carry drugs across the border inside his body, and other indicia of unlawful activity).
The Court will thus not suppress the evidence the Government obtained while executing that warrant.
G. Nor Will the Court Suppress Evidence the Government Obtained Pursuant to the Cell Phone Warrant
Defendant also attacks the affidavit supporting the warrant to search her cell phone. See Mot. at 17-18; Reply at 13.
She first argues that the Cell Phone Warrant Affidavit "included the same falsehoods or omissions about the strip and body cavity search being merely a 'pat-down,'" about Defendant "claiming to be a U.S. Citizen," and about Defendant's "statements during her interrogation." Mot. at 17-18; see also Phone Warrant Aff. at 4-6. For the same reasons discussed above, those statements or omissions are either true or would not have affected the Magistrate Judge's probable cause determination, so they don't warrant suppression. See supra Section II.F.2.
Defendant also contends that the Cell Phone Warrant Affidavit was based on "unlawfully obtained evidence" to the extent it relied on "evidence taken from [her] phone pursuant to the warrantless DOMEX inspection discussed above." Mot. at 18; see also Phone Warrant Aff. at 6-7. Because that inspection was lawful, see supra Section II.E, the Court rejects that argument too.
III. CONCLUSION
The Court thus DENIES "Defendant's Motion to Suppress" (ECF No. 22).
Because the Court permitted the parties to file their Motion, Response, and Reply under seal, the Court DIRECTS the Clerk of Court to SEAL this Memorandum Opinion and Order as well.