United States v. Wanjiku is one of many recent Fourth Amendment cases that have come before circuit courts regarding border searches of cell phones. This batch of litigation sprung in part from the Supreme Court decision in Riley v. California, which held that officers generally need a warrant to conduct incidental searches of cell phones during an arrest. That decision rested on the fact that cell phones — and the wealth of data they contain — are different from other items that might be searched at arrest. This new wave of cases seeks to apply that lesson to the border context. But the border is special too, and that tension has created uncertainty around the level of suspicion required for a border search of a cell phone. Complicating the picture, the “good-faith” exception — which allows evidence obtained by officers who had an “objectively good faith belief that their conduct did not violate the Fourth Amendment” to be admitted in court — has interfered with the development of the doctrine on this issue. Circuits have dodged the question of what level of suspicion is required for border-cell-phone searches using the good-faith exception before. But Wanjiku is the first case in which, with parties arguing for everything from no individualized suspicion required to a warrant requirement, the court has refused to even narrow the field of possibilities. This complete refusal to address the question may increase the pressure on the Supreme Court to address the question.
On June 9, 2015, Donald Wanjiku returned to the United States after a sixty-day trip to the Philippines. Investigators from Customs and Border Patrol (CBP) and Homeland Security had decided to search him as part of a larger operation to target entrants to the U.S. who had certain characteristics — adult U.S. citizen men with a criminal history who were travelling alone to the countries known to have a large “sex tourism” business. The border agents found Wanjiku’s behavior at the airport suspicious — he had exited the secondary inspection line, something the agent said he’d never seen before. After searching his belongings and discovering a number of items they considered suspicious — hotel receipts that did not align with Wanjiku’s account of his trip itinerary and a bag of condoms and syringes
— the officers searched Wanjiku’s cellphone. They found child pornography and Wanjiku was charged with one count of transportation of child pornography.
Wanjiku sought to suppress the evidence found on his phone, asserting that the search violated the Fourth Amendment. The district court denied the suppression motion. Wanjiku made two arguments on appeal. First, in light of the Supreme Court decisions in Riley and Carpenter v. United States agents must get a warrant supported by probable cause before searching electronic devices at the border. Second, even if a warrant was not required, the agents did not even have enough factual basis for the search to meet the “reasonable suspicion” standard at the time that they decided to search his phone. The government argued that the reasonable suspicion standard was met, but also that reasonable suspicion was not required — in fact, no individualized suspicion is necessary for a search at the border.
Ultimately, the court dodged the question of what
level of suspicion the Seventh Circuit would apply to border searches. Instead,
the court held that because (1) no court had ever required more than
“reasonable suspicion” for a search at the border and (2) the agents had
reasonable suspicion at the time of the search, the border agents had acted in “good
faith” in executing the search. And because they had acted in good faith, the court
upheld the district court’s denial of Wanjiku’s suppression motion.
A chronological account of the most recent circuit cases illustrates both that Wanjiku is unique in its refusal to take any stance about the appropriate level of suspicion and highlights the rising intercircuit tensions around this issue. The Ninth Circuit held even before Riley that forensic searches of computers at the border required reasonable suspicion, as such searches were unusually “invasive.” In United States v. Molina-Isidoro, the Fifth Circuit declined to decide whether a cell-phone-border search required probable cause or a warrant, arguing that either way the good-faith exception precluded suppression of the evidence. Though like the Wanjiku court, the Molina-Isidoro court avoided the central constitutional question, in that case the court was only asked to pick between two options, both requiring a fairly high level of suspicion. A few months later, the Fourth Circuit held in United States v. Kolsuz that “some form of individualized suspicion” is required for cell-phone-border searches but used the good-faith exception to avoid the question of what level of suspicion is required. In a very different decision, the Eleventh Circuit held in United States v. Touset that no individualized suspicion is required for such a border search.
Unlike other circuits, the Wanjiku court gave litigants no concrete information about what standard it would apply. Though the court indicated that it thought a warrant requirement or even a probable cause requirement would be a substantial departure from precedent, the court did not actually rule out those possibilities. Though some have argued that the court may want to wait to see what level of suspicion additional circuits require before granting cert, this decision shows that the good-faith exception is slowing a full exploration of the issue.