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Border Search of Cellular Phone Suppressed as Fruit of the Poisonous Tree

The defendant, and the cooperator in this case, were involved in the import and export of drugs. After the cooperator provided information to the government that led to the subsequent stop and search of the Defendant, Djibo, the government went a step further in demanding Djibo's access/password code to his iPhone (one of the several phones Djibo was carrying during his travels). Vast amounts of information was both accessed and seized by the government without a warrant (albeit one was later secured).

On July 1, 2015, Djibo moved to suppress all statements made during the course of Djibo's arrest, "including his statement identifying the password to his iPhone" and all property seized, including "data retrieved from his iPhone pursuant to a subsequent search warrant," pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Opposing the suppression on several grounds to which the Court dismisses. Pp. 15-16. During the suppression hearing, the following colloquy occurred before the Court:

The Court: So it's your position you can look at a cellphone or a laptop for a person going out of the United States to look for currency?

Government: To look for evidence of currency or other crimes, yes.

The Court: You're looking for currency or evidence of currency?

Government: Evidence of illegal activity. Evidence of bulk cash smuggling typically is what they are focused on. It might be text messages or emails or things of that nature.

As the Court continued to inquire, the government's version of events became increasingly muddled.

The Court: Okay. Now, they searched the phone at the border as he's going out and what did they seize?

Government: They didn't seize anything at that time. They asked him for his passcode...

The Court: Then why did they ask for the code?

Government: I believe they were looking into the phone — they peeked at the phone after — so he was pulled aside from the line at the airport.

The Court: I understand that. They peeked at the phone. What was the result of that peek?

Government: I believe the initial search turned up some records that — it basically captures the data that's undeleted. It captures, like, your text messages and your emails.

The Court: What was that? I want it to be more specific.

Government: It was emails, text messages, undeleted content. So whatever was — when you turn on your phone and you see your text messages and you see your emails, that's what they obtained in this initial peek?

Pp. 9-11 (external quotation marks omitted).

Rule: The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself. U. S. Const. Amend. V. "To protect the Fifth Amendment right against self-incrimination, the Supreme Court in Miranda v. Arizona ruled that police may not interrogate a suspect who has been taken into custody without first warning the person 'that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.'" United States v. Newton, 369 F.3d 659, 668 (2d Cir. 2004).

In the context of arriving at an airport — "in which compulsory questioning inheres in the situation and the traveler has voluntarily submitted to some degree of confinement and restraint by approaching the border" — a reasonable traveler will expect some constraints and questioning. United States v. FNU LNU, 653 F.3d 144, 153-54 (2d Cir. 2011). Correspondingly, an individual departing from a United States airport will have similar expectations. Cf. Corbett v. Transp. Sec. Admin., 2014 WL 2503772, at*l (11th Cir. June 4, 2014) ("Before boarding commercial flights at U.S. airports, all passengers must submit to screening of their persons and luggage at a security checkpoint.") (citing 49 U.S.C. §44901); United States v. Stanley, 545 F.2d 661, 667 (9th Cir. 1976) (noting, in the context of a border search absent a warrant and probable cause, that an individual departing the United States is "on notice that a search may be made, and his privacy is arguably less invaded by such search"). Thus, "with these expectations in mind, the likelihood that a reasonable person being questioned by CBP officers on a jet way would consider himself or herself under arrest is diminished, but of course still possible." United States v. Soto, No. 13-CR-76 MKB, 2014 WL 3695990, at *4 (E.D.N.Y. July 24, 2014). The Court must view the totality of the circumstances, including "the interrogation's duration; its location (e.g., at the suspect's home, in public, in a police station, or at the border); whether the suspect volunteered for the interview; whether the officers used restraints; whether weapons were present and especially whether they were drawn; whether officers told the suspect he was free to leave or under suspicion." FNU LNU, 653 F.3d at 153 (citations omitted). Additionally, in the border context, a relevant consideration is the nature of the questions being asked. Pp. 17-18.

Analysis: The Supreme Court recently decided whether the seizure and search a cellular phone was in violation of one's fourth amendment rights. The Court, in doing so, made an astounding observation of what a cellular phone really is in this day and age: a peephole into the owner's personal life.

Judge Johnson noted that, in Riley v. California. 134 S.Ct. 2473 (2014), the Supreme Court held that warrantless searches of smart phones (phones that not only make telephone calls but operate as mini-computers with various storage capabilities) generally do not qualify for the "search incident to arrest" exception to the warrant requirement under the Fourth Amendment. Id. at 2485, 2489-90. Writing the near-unanimous decision, Chief Justice Roberts described cellular telephones as "such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy." Id. at 2484.

In this case, the search was undertaken to find contraband or currency, neither of which were found. There was no need to then seek out the Defendant's iPhone passcode. There was no national security risk that day and the Defendant's outbound status cannot be considered within the purview of a border search. The Court further notes "[t]hat Djibo was arrestable based on the information obtained from the Cooperator is of no great moment. He could have been arrested, his phone seized pursuant to the border authority, and a search warrant obtained before any searching occurred. [The Government] sought to sidestep these constitutional guarantees."

Indeed, the Court noted that

three important factors lead this Court to conclude that Djibo was in fact in custody at the time of the statements at issue. First, Djibo was not free to leave once he was asked to step aside "to a private area" for the currency exam. Second, and more significantly, Wilburt — an HSI Agent — was several feet away from the CBP officers' table while the currency exam took place. It appears from his testimony that he stood by passively until the phones were discovered, but phones are not contraband. In fact, no contraband was found by CBP. After that, the border search ended. The line of inquiry into Djibo's telephones thereafter completely changed the stage because the purpose of the original search was to find currency and currency cannot be found on a phone.

Pp. 18-19.(external quotation marks omitted) "Sufficient evidence existed to arrest Djibo outside of the airport, but Officer Wilburt chose to have Djibo searched under conditions in which the average passenger would not feel free to leave and he did so without issuing the Miranda warning." Pp. 26. The leaves little doubt that Djibo felt free to leave, nonetheless refuse the government's repeated request for the iPhone password.

It is important to note that, in so holding, the Court (J. Johnson) made clear that the cellular phone "is the combined footprint of what has been occurring socially, economically, personally, psychologically, spiritually and sometimes even sexually, in the owner's life, and it pinpoints the whereabouts of the owner over time with greater precision than any tool heretofore used by law enforcement without aid of a warrant." Pp. at 27.

Conclusion: The Court finds that the initial search unreasonable and provides that the border exception here did not justify the opening of the cellular phone pursuant to the Riley..

US v. Djibo, 15 CR 88, NYLJ 1202745375647, at *1 (EDNY, Decided December 16, 2015) (available at:

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