In United States v. Vergara, No. 16-15059 (Mar. 15, 2018) (William Pryor, Jill Pryor, Clevenger), the Court upheld child pornography convictions following the warrantless manual and forensic search of the defendant's cell phones at the border.
The Court held that border searches do not require either a warrant or probable cause, but rather are subject to review for reasonableness. The Court rejected the defendant's argument that the Supreme Court's decision in Riley v. California required a warrant for the forensic search, reasoning that Riley was limited only to searches incident to arrest and did not apply to border searches. At the border, the highest possible standard for a search is reasonable suspicion, and the defendant did not challenge the district court's conclusion that reasonable suspicion existed for the search of his phones. So the Court did not address whether reasonable suspicion was required or whether reasonable suspicion in fact existed.
Judge Jill Pryor dissented, disagreeing with the majority's dismissal of the significant privacy interests implicated by cell phone searches. She acknowledged that Riley did not involve a border search, and the issue was one of first impression post-Riley. But, in light of Riley, her weighing of the government's heightened interest at the border with the defendant's privacy interests led her to conclude that a forensic search of a cell phone at the border required a warrant supported by probable cause.
