United States v. Mendez

103 F.4th 1303

UNITED STATES of America, Plaintiff-Appellee, v. Marcos MENDEZ, Defendant-Appellant.

No. 23-1460

United States Court of Appeals, Seventh Circuit

Argued December 5, 2023

Decided June 10, 2024

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 16-cr-163 — Mary M. Rowland, Judge.

Ashley Chung, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Marko Andrew Duric, Attorney, Robertson Duric, Chicago, IL, for Defendant-Appellant.

Before Hamilton, Brennan, and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

Marcos Mendez was passing through customs at O'Hare International Airport after a trip abroad when a customs agent pulled him aside for inspection, unlocked and scrolled through his cell phone, and found child pornography in the photo gallery. Customs agents then seized the phone, downloaded its contents, and discovered additional illicit images and videos of children.

After the district court denied Mendez's motion to suppress this evidence, Mendez pled guilty to producing child pornography but preserved this appeal of the district court's suppression-motion ruling. He now argues that the searches of his phone, in light of the Supreme Court's decisions in Riley v. California, 573 U.S. 373, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), and Carpenter v. United States, 585 U.S. 296, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018), required a warrant, probable cause, or at least reasonable suspicion.

The "longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless 'reasonable' has a history as old as the Fourth Amendment itself." United States v. Ramsey, 431 U.S. 606, 619, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977). That history leads us to join the uniform view of our sister circuits to hold that searches of electronics at the border—like any other border search—do not require a warrant or probable cause, and that the kind of routine, manual search of the phone initially performed here requires no individualized suspicion. We affirm.

I. Background

A. Factual Background

Just shy of midnight on February 20, 2016, Marcos Mendez landed at O'Hare International Airport following a trip to Ecuador. He was traveling alone. Along with his baggage, Mendez carried with him three electronic devices: a personal cell phone, a work phone, and a work iPad.

Customs and Border Protection ("CBP") had issued a child-pornography-related "lookout" for Mendez based on his arrest record and prior travel history. Mendez had a 2010 arrest relating to indecent solicitation of a child and child pornography, leading to a 2011 conviction for endangering the life or health of a child. Additionally, CBP previously had inspected Mendez in 2014 after he returned from Mexico. During that inspection, he claimed to have been kidnapped, robbed of his electronic devices, and told to leave the country. And on this particular trip, Mendez was returning from Ecuador, which CBP officers classified as a potential child-trafficking source country. Mendez also fit the profile for child-pornography offenders: a single adult male traveling alone.

Together, this information prompted CBP Investigating Officer Richard Callison to pull Mendez aside for secondary inspection after his arrival at O'Hare. Within the first thirty minutes of the inspection, Mendez gave Callison his cell phone and its passcode. Callison manually unlocked the phone and navigated to its camera roll. There he found thousands of pornographic images, including what appeared to be child pornography. Using the phone's passcode, Callison also opened a protected application called "iSafe," where he discovered more illicit images.

Callison then moved Mendez to a private location, where he conducted a more extensive, "forensic" examination of Mendez's devices. CBP agents used a data extraction technology called "DOMEX" (Document and Media Exploitation) to download a copy of the devices' photos and videos. The forensic examination took about two hours and revealed more child pornography.

Officers seized Mendez's cell phone but released Mendez, who, in the days after his arrest, remotely wiped the contents of his phone and traveled by car into Mexico with his mother. Meanwhile, a Homeland Security Investigations ("HSI") team extracted the metadata—creation dates, geolocation information, and so on—from the files that had earlier been downloaded from Mendez's cell phone. That data revealed that several of the child pornography images were taken near Mendez's residence in Rosemont, Illinois.

B. Procedural Background

A grand jury indicted Mendez on two counts of producing child pornography, in violation of 18 U.S.C. § 2251(a), one count of transporting child pornography, in violation of 18 U.S.C. § 2252A(a)(1), and one count of possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). He was extradited to the United States in January 2020.

Mendez moved to suppress the evidence found on his cell phone, arguing the searches violated the Fourth Amendment because they were unsupported by either a probable-cause supported warrant or reasonable suspicion. After an evidentiary hearing in which Officer Callison and other investigating officers testified, the district court denied the motion. Relying in large part on our decision in United States v. Wanjiku, 919 F.3d 472 (7th Cir. 2019), the district court held that the searches did not violate the Fourth Amendment because customs agents had reasonable suspicion by the time they began looking through Mendez's phone.

Mendez pled guilty to one count of producing child pornography but preserved his right to appeal the district court's suppression ruling. He received a 300-month sentence, followed by a ten-year term of supervised release. We now consider that preserved issue, reviewing the district court's findings of fact for clear error and questions of law de novo. See United States v. Ostrum, 99 F.4th 999, 1004 (7th Cir. 2024).

II. Analysis

The Fourth Amendment commands that searches and seizures be reasonable. U.S. Const. amend. IV. Ordinarily, "[i]n the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement." Riley, 573 U.S. at 382, 134 S.Ct. 2473.

One such exception is the border search exception. "Congress, since the beginning of our Government, 'has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country.' "¹ United States v. Flores-Montano, 541 U.S. 149, 153, 124 S.Ct. 1582, 158 L.Ed.2d 311 (2004) (quoting United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985)). The government's unquestionable authority to search persons and effects at the border is rooted in "the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country." Ramsey, 431 U.S. at 616, 97 S.Ct. 1972; see also id. at 619, 97 S.Ct. 1972 ("Historically such broad powers have been necessary to prevent smuggling and to prevent prohibited articles from entry."); Flores-Montano, 541 U.S. at 152, 124 S.Ct. 1582 (noting that the border exception rests on the government interest in "preventing the entry of unwanted persons and effects"). The "Fourth Amendment balance between the interests of the Government and the privacy right of the individual is . . . struck much more favorably to the Government at the border." Montoya de Hernandez, 473 U.S. at 540, 105 S.Ct. 3304. When the government acts under its "inherent authority to protect . . . its territorial integrity," its interest is "at its zenith." Flores-Montano, 541 U.S. at 152-53, 124 S.Ct. 1582. In contrast, a traveler's expectation of privacy at the border is simply "less." Montoya de Hernandez, 473 U.S. at 539, 105 S.Ct. 3304.

Accordingly, border searches have long been exempted from warrant and probable cause requirements, and ordinarily "are reasonable simply by virtue of the fact that they occur at the border." Flores-Montano, 541 U.S. at 152-53, 124 S.Ct. 1582 (quoting Ramsey, 431 U.S. at 616, 97 S.Ct. 1972). "Routine" searches of people and effects at the border—which have included examining the contents of a person's purse, wallet, or pockets, United States v. Carter, 592 F.2d 402 (7th Cir. 1979), opening mail, see Ramsey, 431 U.S. at 620, 97 S.Ct. 1972, and disassembling and reassembling a vehicle's fuel tank, see Flores-Montano, 541 U.S. at 155, 124 S.Ct. 1582—are "per se reasonable" and require no particularized suspicion at all. Yang, 286 F.3d at 944 (citing Ramsey, 431 U.S. at 616, 97 S.Ct. 1972); see also Montoya de Hernandez, 473 U.S. at 538, 105 S.Ct. 3304 ("Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant."); United States v. Johnson, 991 F.2d 1287, 1291 (7th Cir. 1993).

Even highly intrusive, so-called "non-routine" border searches need only reasonable suspicion. See Montoya de Hernandez, 473 U.S. at 541, 105 S.Ct. 3304. But the Supreme Court has recognized this "non-routine" category only in searches of a suspect's person. It held, for example, that a 16-hour detention for monitored bowel movement of a person suspected of "smuggling contraband in her alimentary canal" requires reasonable suspicion given the personal dignity and privacy interests at stake. Id. at 541, 105 S.Ct. 3304. And in this circuit, "we have confronted border searches and seizures that we characterized as arguably non-routine"—including pat downs, partial strip searches, visual body cavity searches, and the dismantling of luggage—and have applied the reasonable suspicion standard. Wanjiku, 919 F.3d at 482-83 (emphasis added); see also Yang, 286 F.3d at 944, 949; Kaniff...