FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 17-50151 Plaintiff-Appellee, D.C. No. v. 3:16-cr-01770-BTM-1 MIGUEL ANGEL CANO, Defendant-Appellant. OPINION Appeal from the United States District Court for the Southern District of California Barry Ted Moskowitz, District Judge, Presiding Argued and Submitted April 10, 2019 Pasadena, California Filed August 16, 2019 Before: Susan P. Graber and Jay S. Bybee, Circuit Judges, and M. Douglas Harpool,* District Judge. Opinion by Judge Bybee * The Honorable M. Douglas Harpool, United States District Judge for the Western District of Missouri, sitting by designation 2 UNITED STATES V. CANO SUMMARY** Criminal Law The panel reversed the district court’s order denying the defendant’s motion to suppress evidence obtained from warrantless searches of his cell phone by Customs and Border Protection officials, and vacated his conviction for importing cocaine. Applying United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc), the panel held that manual cell phone searches may be conducted by border officials without reasonable suspicion but that forensic cell phone searches require reasonable suspicion. The panel clarified Cotterman by holding that “reasonable suspicion” in this context means that officials must reasonably suspect that the cell phone contains digital contraband. The panel further concluded that cell phone searches at the border, whether manual or forensic, must be limited in scope to whether the phone contains digital contraband; and that a broader search for evidence of a crime cannot be justified by the purposes of the border search exception to the Fourth Amendment warrant requirement. The panel held that to the extent that a Border Patrol agent’s search of the defendant’s phone – which included the recording of phone numbers and text messages for further processing – went beyond a verification that the phone lacked digital contraband, the search exceeded the proper scope of a border search and was unreasonable as a border search under ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. CANO 3 the Fourth Amendment. The panel held that although the agents had reason to suspect the defendant’s phone would contain evidence leading to additional drugs, the record does not give rise to an objectively reasonable suspicion that the digital data in the phone contained contraband, and the border search exception therefore did not authorize the agents to conduct a warrantless forensic search of the defendant’s phone. The panel held that the good faith exception to the exclusionary rule does not apply because the border officials did not rely on binding appellate precedent specifically authorizing the cell phone searches at issue here. Rejecting the defendant’s contention that the government violated his rights under Brady v, Maryland, 373 U.S. 83 (1963), and Fed. R. Crim. P. 16, by failing to turn over certain information he requested from the FBI and DEA in pursuit of this third-party defense, the panel found no evidence that the prosecution ...
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