United States v. Cano

934 F.3d 1002

UNITED STATES of America, Plaintiff-Appellee,

v.Miguel Angel CANO, Defendant-Appellant.

No. 17-50151

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 10, 2019 Pasadena, California

Filed August 16, 2019

Harini P. Raghupathi, Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.

Mark R. Rehe, Assistant United States Attorney; Helen H. Hong, Assistant United States Attorney, Chief, Appellate Section, Criminal Division; Adam L. Braverman, United States Attorney; United States Attorney’s Office, San Diego, California; for Plaintiff-Appellee.

Sophia Cope and Adam Schwartz, Electronic Frontier Foundation, San Francisco, California, for Amicus Curiae Electronic Frontier Foundation.

Before: Susan P. Graber and Jay S. Bybee, Circuit Judges, and M. Douglas Harpool,^* District Judge.

BYBEE, Circuit Judge:

Defendant-Appellant Miguel Cano was arrested for carrying cocaine as he attempted to cross into the United States from Mexico at the San Ysidro Port of Entry. Following his arrest, a Customs and Border Protection official seized Cano’s cell phone and searched it, first manually and then using software that accesses all text messages, contacts, call logs, media, and application data. When Cano moved to suppress the evidence obtained from the warrantless searches of his cell phone, the district court held that the searches were valid under the border search exception to the Fourth Amendment’s warrant requirement.

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 officials violated the Fourth Amendment when their warrantless searches exceeded the permissible scope of a border search. Accordingly, we hold that most of the evidence from the searches of Cano’s cell phone should have been suppressed. We also conclude that Cano’s Brady claims are unpersuasive. Because we vacate Cano’s conviction, we do not reach his claim of prosecutorial misconduct.

We reverse the district court’s order denying Cano’s motion to suppress and vacate Cano’s conviction.

I. THE BACKGROUND

A. The Facts

Defendant-Appellant Miguel Cano worked in the flooring and carpet installation trade and lived with his wife and children in the Mission Hills community north of Los Angeles. In the summer of 2016, however, Cano moved from Los Angeles to Tijuana, Mexico, where he stayed with his cousin Jose Medina. While staying with Medina, Cano crossed the border into the United States six times, sometimes remaining in the United States for less than thirty minutes. On two of those trips, Cano was referred to secondary inspection, but no contraband was found.

On July 25, 2016, Cano arrived at the San Ysidro Port of Entry from Tijuana. In primary inspection, Cano stated that "he was living in Mexico, working in San Diego, but going to LA on that day." Pursuant to a random Customs and Border Protection (CBP) computer referral, Cano was referred to secondary inspection, where a narcotic-detecting dog alerted to the vehicle’s spare tire. A CBP official removed the spare tire from the undercarriage of the truck and discovered 14 vacuum-sealed packages inside, containing 14.03 kilograms (30.93 pounds) of cocaine.

Cano was arrested, and a CBP official administratively seized his cell phone. The CBP officials called Homeland Security Investigations (HSI), which dispatched Agents Petonak and Medrano to investigate. After arriving, Agent Petonak "briefly" and manually reviewed Cano’s cell phone, noticing a "lengthy call log" but no text messages. Agent Petonak later stated that the purpose of this manual search was "two-pronged": "to find some brief investigative leads in the current case," and "to see if there’s evidence of other things coming across the border."

Agent Petonak proceeded to question Cano, who waived his Miranda rights and agreed to talk. During that interview, Cano denied any knowledge of the cocaine. Cano stated that he had moved to Tijuana to look for work in nearby San Diego, because work was slow in Los Angeles. He also said he had crossed the border every day for the previous three weeks looking for work. He told Agent Petonak that he was headed to a carpet store in Chula Vista that day to seek work. When pressed, Cano was not able to provide the name or address of the store, claiming that he intended to look it up on Google after crossing the border. Cano also explained that he did not have his flooring tools with him in his pickup truck so as to avoid problems with border crossings; Cano intended to drive to Los Angeles to retrieve his tools if he located work in San Diego.

During the interrogation, Agent Petonak specifically asked Cano about the lack of text messages on his cell phone. Cano responded that his cousin had advised him to delete his text messages "just in case" he got pulled over in Mexico and police were to check his cell phone. Cano stated that he erased his messages to avoid "any problems" with the Mexican police.

While Agent Petonak questioned Cano, Agent Medrano conducted a second manual search of the cell phone. Agent Medrano browsed the call log and wrote down some of the phone numbers on a piece of paper. He also noticed two messages that arrived after Cano had reached the border, and he took a photograph of the messages. The first message stated, "Good morning," and the second message stated, "Primo, are you coming to the house?" Agent Medrano gave all of this information—the recorded list of calls and the photograph—to Agent Petonak.

Finally, Agent Medrano conducted a "logical download" of the phone using Cellebrite software. A Cellebrite search enables the user to access text messages, contacts, call logs, media, and application data on a cell phone and to select which types of data to download. It does not, however, allow the user to access data stored within third-party applications. Agent Medrano typically does not select the option to download photographs.

After Agent Petonak interviewed Cano, he reviewed the results of the Cellebrite download of Cano’s phone by Agent Medrano. The Cellebrite results revealed that Cano had sent no text messages, and it listed all the calls made by Cano. Agent Petonak later concluded that none of the phone numbers in the call log corresponded to carpeting stores in San Diego.

B. The Proceedings

Cano was indicted for importing cocaine. Before trial, Cano moved to suppress any evidence obtained from Agents Petonak and Medrano’s warrantless searches of his cell phone at the border. The district court denied Cano’s motion, ruling that the manual searches and the Cellebrite search of Cano’s phone were valid border searches. During trial, the government introduced evidence that resulted from the manual searches of the phone and from Agent Medrano’s Cellebrite download of the phone.¹

In preparation for trial, Cano indicated his intent to present a third-party culpability defense claiming that his cousin, Jose Medina, was responsible for placing the drugs in Cano’s spare tire without Cano’s knowledge. Cano proffered evidence that Medina had a key to Cano’s car and had driven it shortly before Cano’s attempted border crossing, that Medina had a criminal record including a conviction for cocaine possession, that Medina was a member of a Chicago-based gang called the Latin Kings, and that the Latin Kings sold cocaine within the United States and were involved with a cartel that trafficked drugs across the border.

Following Cano’s implication of Medina, the government contacted Medina and promised him immunity and immigration papers in exchange for his cooperation. Medina initially denied being involved with drugs, but later contacted the government on his own and offered to help them with the "biggest RICO case" and "drug seizures of 20 to 25 kilograms at a time." All of this information was made available to Cano.

As part of his defense, Cano sought additional discovery from HSI, the Federal Bureau of Investigation (FBI), and the Drug Enforcement Agency (DEA) regarding: (1) records linking Medina to drug sales, distribution, or trafficking; and (2) records linking the Latin Kings to drug trafficking from Mexico to Southern California. The government opposed Cano’s discovery motion, arguing that the evidence was not material under Federal Rule of Criminal Procedure 16(a)(1)(E)(i) and that discovery should be limited to HSI, as neither the DEA nor the FBI had participated in the investigation of Cano. The district court originally overruled both objections, finding the evidence material under Rule 16 and exculpatory under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The court also reasoned that, because HSI could inquire of the DEA and FBI if it sought inculpatory evidence, HSI had access to the files and was required to provide any exculpatory evidence held by the DEA or FBI.

In response to the court’s discovery order, HSI produced Medina’s immigration file and his Bureau of Prisons record. Agent Petonak also searched for Medina’s name in two different police clearinghouses, but neither returned any hits.² Both Agent Petonak and the United States Attorney’s Office (USAO) subsequently requested information showing a link between the Latin Kings and drug trafficking from Mexico from the legal counsel of both the FBI and DEA. Both agencies denied the requests without providing any explanation or any indication as to whether the requested information existed.

Following these attempts, the government...