Ninth Circuit Says Warrantless Device Searches At The Border Must Be Limited To Searches For Contraband

from the another-small-addition-to-the-Ninth's-rights-restoration-project dept

The Ninth Circuit has given back a bit more of the Fourth Amendment to American citizens. Again.

Supposedly, we're so very much in need of national security, hardly anyone is allowed to avail themselves of their surely misnamed "rights" within 100 miles of our borders. This includes things like international airports as well, so the "Constitution-free zone" swallows up a large portion of our nation's population

In 2013, the Ninth Circuit Court of Appeals ruled the Fourth Amendment still applies at the border, despite the US government's protestations. The government can still get away with suspicionless searches at the border, but they have to be cursory, not exploratory. That case -- US v. Cotterman -- resulted in a finding that deeper searches of electronic device, like Cotterman's laptop, needed reasonable suspicion. (The court also helpfully noted that the existence of password-protected files is not enough to meet that bar.)

Given the vast amount of information travelers carry on them at all times in their multiple electronic devices, it seems like this reasonable suspicion standard should be the minimum expected. We're not quite up to a warrant requirement, but we're getting closer. This recent decision [PDF] by the Appeals Court relies on its Cotterman precedent to find the same standard applies to cellphones -- and clarifies what exactly that standard is.

In this case, a man arrested at a border crossing for trafficking drugs challenged the evidence found on his phone. After Border Patrol agents found cocaine concealed in a spare tire underneath his truck, the agents decided to search his phone. The man, Miguel Cano, claimed he was crossing the border visit his family in Los Angeles. (Cano is a US citizen who recently moved to Tijuana, Mexico.)

Cano claimed he knew nothing about the drugs stashed in the back of his vehicle. The agents decided to take a deep dive into his phone using Cellebrite software, which pulled text messages, contacts, call logs, and application data from Cano's phone. This was apparently done because the cursory search -- the one still fully protected by the border exception -- failed to turn up anything interesting to the Border Patrol officers.

This is a search too far, the court says. Referring to its 2013 decision on device searches, the Appeals Court fills in some blanks from its previous ruling to give the government explicit rules on suspicionless device searches.

Applying United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc), we conclude that manual cell phone searches may be conducted by border officials without reasonable suspicion but that forensic cell phone searches require reasonable suspicion. We clarify Cotterman by holding that “reasonable suspicion” in this context means that officials must reasonably suspect that the cell phone contains digital contraband. We further conclude that cell phone searches at the border, whether manual or forensic, must be limited in scope to a search for digital contraband.

In this case, the agents may have felt the phone contained evidence of drug smuggling. But if that's what they felt, they needed to get a warrant. If they want to perform forensic searches of phones without a warrant, they need to be able to show they believe the device itself contains contraband. In a case where the contraband is 30 kg of cocaine stashed in a spare tire, the likelihood of finding more drugs by scraping a phone for data is zero.

The court notes that the government can still perform forensic device searches without a warrant because some data is contraband, like child porn. A cursory view of the phone's contents is sort of like looking into a suitcase. Anything deeper than that, though, needs to be justified by reasonable suspicion. If it wants to search for evidence only, it looks like the government will probably need a warrant. The court does not enact a warrant requirement, however. It defers to the government's long-running insistence that border security trumps the Fourth Amendment.

But the court does head off one of the government's worst arguments: that it should be allowed to search all devices for evidence of contraband, rather than be limited solely to contraband.

Does the proper scope of a border search include the power to search for evidence of contraband that is not present at the border? Or, put differently, can border agents conduct a warrantless search for evidence of past or future border-related crimes? We think that the answer must be “no.”

This should head off a few Border Patrol fishing expeditions, if and when this decision finally trickles down to California border crossings. As the court points out, finding otherwise would allow the border search exception to bypass the Ninth's earlier decision on device searches, as well as the additional constraints imposed by the Supreme Court's Riley ruling.

And the Border Patrol officers can't salvage this search with the good faith exception. The government's search powers were limited by the Appeals Court's 2013 decision. That the government chose to believe that ruling only applied to laptops is on the government.

The government points to Cotterman as support for the good faith of the officials. We fail to see how border officials could believe that Cotterman was “binding appellate precedent” authorizing their search. Although we have concluded that Cotterman is still good law after Riley, the officials could not rely on Cotterman to justify a search for evidence; Cotterman was a search for contraband that the government has a right to seize at the border. Here, the officials’ search was objectively tied only to proving their case against Cano and finding evidence of future crimes. Searching for evidence and searching for contraband are not the same thing.

With that, the evidence pulled from Cano's phone is gone, along with his conviction. And there's a bit more Fourth to go around in the far western reaches of this nation -- home to plenty of border crossings.

Filed Under: 4th amendment, 9th circuit, border searches, contraband

'Tis The Season To Fail To Catch Contraband And Explosive Devices At TSA Checkpoints

from the ho-ho-ho-now-I-have-an-explosive-precursor dept

Just in time for the travel season to kick in, the TSA is operating at peak efficiency. Streamlining travelers' pre-boarding procedures this year -- just like every year preceding it -- will be the agency's inability to keep dangerous items from making their way onboard.

Two years ago, the TSA's Inspector General discovered it could sneak contraband -- including explosive devices -- past the agency's pizza box recruits 95% of the time. A follow-up audit two years later was just as unimpressive. The IG's "Red Team" audit team called it quits after sneaking 17 of 18 forbidden items past TSA screeners. At 94.4%, it's hard to tell whether this is the TSA's idea of improvement or just the result of a smaller sample size. (The first audit team made 70 smuggling attempts, succeeding 67 times.) Theoretically, given enough attempts, the TSA may have been able to push this number much closer to 100%.

Good news of a sort then: the latest screening sting operation shows exponential improvement by TSA screeners. The problem is multiples of super-low numbers still result in large amounts of failure.

In recent undercover tests of multiple airport security checkpoints by the Department of Homeland Security, inspectors said screeners, their equipment or their procedures failed more than half of the time, according to a source familiar with the classified report.

When ABC News asked the source familiar with the report if the failure rate was 80 percent, the response was, “You are in the ballpark.”

And that ballpark is the Mendoza Line. The TSA can now tell travelers it's capable of batting .200 against would-be terrorists, just as airports begin to see increased amounts of air travel. And that's only at the airport tested. Your travel safety mileage may vary, depending on point of departure.

The report itself remains classified for the time being, presumably at the request of the terminally-embarrassing agency. Hopefully, the Inspector General won't allow this to remain buried for much longer or redacted to uselessness by America's perennial underachiever.

As for the TSA, it says it's definitely going to be buckling down and taking travel safety seriously.

“We take the OIG’s findings very seriously and are implementing measures that will improve screening effectiveness at checkpoints,” said TSA administrator David Pekoske. “We are focused on staying ahead of a dynamic threat to aviation with continued investment in the workforce, enhanced procedures and new technologies,” he added.

It is to LOL. This is a carbon copy of statements made after every egregious security failure by the TSA. The last few years of screening failures show little in the way of improvement. As for "staying ahead of dynamic threats," the TSA certainly can't do that when un-dynamic threats can walk past checkpoints carrying explosive devices. And the TSA isn't actually known for "staying ahead" of anything. Every new dehumanizing procedure and item added to the no-fly list is the result of threats screeners didn't catch before they boarded planes and wreaked havoc.

These are all just words meant to make the agency sound like it truly wishes to serve some higher purpose. But the facts flatly contradict the assertions made by the TSA in the wake of multiple successive failures.

Filed Under: contraband, failure, security theater, tsa

Judge Doesn't Buy CBP's Argument That Dog Can 'Smell' The Difference Between Concealed And Unconcealed Humans

from the can-also-tell-if-weed-purchased-without-a-prescription-just-by-sniffing dept

If there's an unreasonable, warrantless search happening, there's a good chance Deputy (literal) Dog is on the case. Cops love their K9 buddies, mainly because nearly any motion or noise a police dog makes can be construed as an "indication" or an "alert." It's a blank permission slip, signed with a paw print.

In reality, though, contraband sniffing dogs aren't preternaturally smart. They are still man's best friend and they love pleasing their handlers. The reward that comes after every "alert" further impresses on the animal the value of "alerting."

This is one of law enforcement's major blind spots. Because contraband-sniffing dogs locate contraband at least part of the time, they're presumed to be infallible/miraculous. No one seems to be more amazed by these animals' skills than law enforcement officers. (Well, them and far too many judges…) But it's not often that you see a law enforcement officer claim his canine partner can do something anyone else would consider impossible, including an expert on law enforcement dogs.

On the way to having the fruits of his search suppressed, CBP Agent Aaron Miranda stated out loud -- and on the record -- that his dog could "smell" the difference between CONCEALED and UNCONCEALED humans.

Agent Miranda testified that Boeli is trained to find things by their odor, including concealed humans, marijuana, heroin, methamphetamine, and all derivatives of those drugs. Agent Miranda testified that when Boeli comes across an odor that he is trained to find “he changes posture, his demeanor. His breathing changes. He tenses up, starts breathing out his nose, closes his mouth. His whole body changes up.”

Now, it's one thing to sniff out concealed humans when no other visible humans are in the vehicle. That I can believe. But Miranda says Boeli can do this even when other, unconcealed people are in the car… or even when that car is in motion.

Agent Miranda testified that Boeli is trained to detect concealed people in different scenarios including inside a moving vehicle. Agent Miranda testified that Boeli can “distinguish cars with people in them from cars with concealed people in them.”

Do tell.

Agent Miranda testified that “I am not an instructor, so I don’t really know how they do the training or how he does it. It amazes me too, but it works.”

PLEASE HOLD YOUR LAUGHTER UNTIL THE END OF THE PRESENTATION.

Miranda doesn't know how this happens or how it works. IT JUST DOES. Here's his definition of "works."

Agent Miranda testified that on a typical day thousands of cars come through the checkpoint and that Boeli could alert “anywhere from two to six or seven” times. Id. at 46. Agent Miranda testified that Boeli has found “five to seven human beings and twelve narcotics busts” over their five-year career. Id. at 105.

Math time:

Five years at ~200 working days per year multiplied by… oh, let's just call it 1,000 cars per day. That's 1,000,000 vehicles he and Boeli have stared/sniffed at. And Boeli's superior sniffing skills have netted the team "5-7 humans" and "12 drug busts." Generously assuming each illicit human was discovered in a separate vehicle, that's a hit rate of .002%.

Now, most vehicles traveling this stretch of California highway will contain nothing illegal, so the hit rate can't really be determined with any accuracy. But five years with 19 busts in an area (Highway 86 outside of Westmorland, California) where one would expect a higher rate of drug/human trafficking than further inland, this still seems incredibly low. And yet, Agent Miranda can't say enough good things about Boeli's ability to sniff out concealed humans in moving vehicles driven by unconcealed humans -- even when an expert on contraband-sniffing dogs contradicts his claims.

At the evidentiary hearing, Defendant presented the testimony of an expert witness who operates a business training dogs for law enforcement and security organizations.

[...]

Defendant’s expert was asked, “In your opinion is it possible to train a dog to alert to concealed human smell but ignore or differentiate other human smell in the same vehicle?” The expert answered, “Not inside the same vehicle. If there is somebody inside the vehicle and somebody in the trunk, or you take the person out of the trunk, it doesn’t matter. It is all – it is the same to the dog.”

The court found Miranda's testimony similarly unconvincing. When the burden is on the government to prove that its search was reasonable and justified by a trained dog's "alert," it has to offer something better than ¯\_(ツ)_/¯

In this case, Defendant has challenged the reliability of the training program and the circumstances surrounding the alert behavior. Defendant challenged Boeli’s ability to distinguish cars with people inside from cars with people concealed inside during the cross examination of Agent Miranda. Agent Miranda was not able to provide any evidence to support Boeli’s training to detect concealed people in moving vehicles. Agent Miranda testified “I don’t really know how they do the training or how [Boeli] does it. It amazes me too, but it works.” Agent Miranda stated, “I trained with my dog on these odors, but the actual training that goes into him knowing the difference is something that the... instructors do that and stuff. I don’t know how the dog would know the difference, but they just do. It is pretty amazing.”

Well, a trainer was asked and he stated that the "amazing" behavior witnessed by Agent Miranda simply does not exist. The most amazing act here was performed by the CBP and Agent Miranda, who managed to make all of the evidence they obtained with their warrantless search vanish into the ether.

Filed Under: aaron miranda, border patrol, contraband, dogs, smelling

Prisoner Sues Because Prison Confiscated And Destroyed His Contraband Mobile Phone

from the good-luck-with-that dept

We've seen plenty of stories over the past few years about prisoners getting contraband mobile phones -- even to the point that many prisons have been asking for exemptions against mobile phone jammers. However, here's a new one: a former prisoner in the UK is suing the prison system for destroying the contraband phone they discovered he had. He claims that the phone should have been just taken and kept in storage, but instead, it was used to train dogs, who chewed it up. Perhaps the rules governing the UK prison system are a bit different, but it's difficult to see how any prison system should be expected to hang onto contraband for the prisoners until after they're released. No word on how he got the phone in the first place, but perhaps it was specially trained carrier pigeons (or not).

Filed Under: confiscated, contraband, jail, mobile phone