Chicago man asks justices to clarify when officers can search your cellphone at the border
Share
The Petitions of the Week column highlights some of the cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.
Many of us carry our entire lives with us on our cellphones. In recognition of this, the Supreme Court has held that although police can generally search a person’s belongings during an arrest without a warrant, the Fourth Amendment requires officers to get a warrant before looking through their cellphone or obtaining their phone records. This week, we highlight petitions that ask the court to consider, among other things, whether cellphones are similarly entitled to greater Fourth Amendment protection than other belongings at the U.S. border.
Marcos Mendez was returning to the United States in 2016 when his passport was flagged at immigration in Chicago’s O’Hare International Airport. A U.S. Customs and Border Protection officer asked him to step aside for additional screening. This was not Mendez’s first hold-up at immigration. Two years earlier, officials had interviewed him after a trip home from Mexico, during which he claimed he had been kidnapped, robbed of his electronic devices, and told to leave the country.
That previous encounter was one reason for the flag on Mendez’s passport. The other was a 2010 arrest for child pornography, which resulted in a misdemeanor conviction for endangering a child. Those facts, combined with the fact that Mendez was a man traveling alone from Ecuador — deemed a potential “source country” for child trafficking by the government — led the C.B.P. system to label him a potential criminal or security risk.
During the encounter, the C.B.P. officer asked Mendez for his cellphone and passcode. An initial scroll through the phone’s camera roll revealed what appeared to be sexual photographs of children. The officer then ran the phone through a software program designed to digitally extract photos and other data, which uncovered dozens more suspicious photographs.
C.B.P. agents released Mendez but kept his cellphone. Soon after leaving the airport, Mendez remotely wiped the contents of his phone and drove to Mexico.
Following further investigation, Mendez was indicted on child pornography charges and extradited to the United States. Before trial, Mendez sought to have the evidence from his cellphone excluded, on the ground that the search of his cellphone had violated the Fourth Amendment.
The trial judge concluded that the C.B.P. agents did not need a search warrant because they already had reason to suspect Mendez might be involved in criminal activity. Accordingly, federal prosecutors could introduce the pictures from his phone at trial.
Mendez ultimately pled guilty and was sentenced to 25 years in federal prison.
The U.S. Court of Appeals for the 7th Circuit agreed that the search of Mendez’s cellphone was lawful. It relied on the so-called “border search exception” to the Fourth Amendment — which, the court of appeals explained, gives immigration officers nearly unlimited latitude to search a person’s belongings at the border, regardless of whether they are suspected of a crime. The court of appeals concluded that this exception applies with equal force to cellphones.
In Mendez v. United States, Mendez asks the justices to grant review and reverse the 7th Circuit. He argues that cellphones at the border present a novel issue that has divided the courts of appeals. In some circuits, a warrant is never required to search a cellphone at the border; in others, a warrant is not needed as long as officers have reason to suspect criminal activity; and in still others, officers can manually open and scroll through a cellphone without reasonable suspicion but cannot perform more extensive searches, such as using software to download a phone’s contents. “With over 40 million Americans travelling abroad every year, and virtually everyone carrying an electronic device, this Court should address these competing concerns, unify the approach to be used by border officials on a daily basis, and update the border search doctrine to deal with our current digital age,” Mendez writes.
The government urges the justices to deny Mendez’s petition. Characterizing the question as one of location, not technology, the government argues that heightened security risks at the border quash even the exceptional privacy interests in the contents of a cellphone.
Moreover, the government disagrees that the courts of appeals are divided. No court of appeals requires a warrant to search a phone at the border, the government explains, nor do any courts bar C.B.P. officers who suspect criminal activity from opening a phone and scrolling through it. Accordingly, the government reasons that the flag on Mendez’s passport would have rendered the warrantless search of his cellphone lawful no matter where it occurred.
A list of this week’s featured petitions is below:
Nivar Santana v. Garland
24-46
Issue: What standard of proof applies when a noncitizen previously admitted to the United States seeks to obtain relief from removal by having her status adjusted to that of a lawful permanent resident.
Jacobsen v. Montana Democratic Party
24-220
Issues: (1) What standard applies, when the Supreme Court reviews a state court’s decision invalidating state legislation under the Constitution’s elections clause, to whether that decision exceeds the bounds of ordinary judicial review; and (2) whether the Montana Supreme Court’s split decision below exceeded the bounds of ordinary judicial review by invalidating under the Montana Constitution two Montana election integrity provisions — one setting the voter-registration deadline at noon the day before election day, and another requiring the secretary of state to promulgate regulations banning paid absentee ballot collection.
Mendez v. United States
24-302
Issues: (1) Whether the government may conduct a warrantless search of the electronic contents of a person’s cellphone at the border; and (2) whether the government may conduct a suspicionless search of the electronic contents of a person’s cellphone at the border.
Patterson v. Baz
24-390
Issues: (1) Whether parties to a case under the Hague Convention on the Civil Aspects of International Child Abduction may waive the right to seek a return elsewhere by agreeing to resolve child-custody disputes exclusively in the United States; and (2) whether parties to a case under the Hague Convention should be held to a decision to waive, forego, or stipulate away rights, including to argue that the habitual residence of a child is outside of the United States, in the same way as any other party would in an ordinary civil action brought in U.S. court.
Davis v. Smith
24-421
Issue: Whether the U.S. Court of Appeals for the 6th Circuit exceeded its powers under the Antiterrorism and Effective Death Penalty Act in concluding that “every fairminded jurist would agree” that the Ohio courts violated the Constitution in refusing to bar testimony from a victim of an attempted murder identifying her attacker.
The post Chicago man asks justices to clarify when officers can search your cellphone at the border appeared first on SCOTUSblog.