Federal Judiciary

U.S. v. Cano (9th Cir. - Sept. 2, 2020)

By Shaun Martin

It's a pretty powerful paragraph by Judge Bennett, joined by five other Republican appointees to the Ninth Circuit.  They dissent from the refusal to rehear en banc a case holding that while we routinely search for contraband at the border (drugs, etc.), that doesn't mean you can routinely forensically search a cell phone, since it can't contain contraband.  (Other than child pornography, in which case, go for it.)

Judge Bennett says:

"Border officials in our circuit are now constitutionally barred from forensically searching a traveler?s cell phone at the border, even if armed with reasonable suspicion the phone contains evidence of terrorist acts the traveler is about to commit in the United States; evidence the traveler is entering the United States under a false name; evidence of contemporaneous smuggling activity by the traveler; evidence of other border related crimes; or evidence of non-child pornography contraband. This is the sovereign power at its nadir, not its zenith."

You can easily see the persuasive effect of that argument.  Most people aren't in favor of terrorist attacks, or not preventing them.  People want to be safe.

But it's probably worth mentioning that the thing that the dissent is outraged that the government can't do can't generally be done anyway -- because we almost always require probable cause before you can search someone (e.g., their phone).  So even if we suspect that someone's a terrorist -- and that's a scary thing to be sure -- we don't let the government search their private phone to see if that's true unless the government officials obtain a warrant from a neutral judge or can show probable cause.  "Reasonable suspicion" isn't sufficient.

You could argue for a "terrorist exception" to the Fourth Amendment, perhaps.  Though I suspect that the history that led up to the adoption of that Constitutional provision -- e.g., our experience with the British -- will shed a fair amount of light on why we don't want the government to have substantial leeway to conduct warrantless searches of people (and their property) that government officers merely suspect are treasonous or enemies of the state.  You could also say that the "border" is different and that even your cell phone or computer can get forensically downloaded and intimately examined in this area without a warrant or probable cause.  But at least as a matter of history, the panel's certainly right that, thus far, we've only allowed searches for contraband. Moreover, since what doctrinally counts as the "border" covers a fairly broad and important swath of the country (e.g., over 60 miles up the I-5 at the San Onofre checkpoint, thereby covering all of San Diego county -- home to several million, including some people about whom I profoundly care), I'm not sure I'm willing to create a broad exception to the Fourth Amendment for anyone in the "border" areas either.

Still, if only as a rhetorical move, you see the power of Judge Bennett's argument.  We don't, in fact, want terrorists to sneak in.  We do, in fact, want to catch them.  And, for some, if that means no longer requiring probable cause or a warrant, with the necessary result that more innocent people are subject to a governmental search based on mere suspicion, so be it.  That's the cost of freedom.

The fight is really over what we mean by that last word.

Full post as published by California Appellate Report on September 02, 2020 (boomark / email).