United States Court of Appeals

for the Fifth Circuit

No. 19-40554

United States of America, 

Plaintiff—Appellee,

versus

Alfredo Aguilar, Jr., 

 Defendant—Appellant.

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 5:18-CR-401-1

Before Jolly, Jones, and Willett, Circuit Judges.

E. Grady Jolly, Circuit Judge:

Alfredo Aguilar, Jr. attempted to cross into the United States from 

Mexico with two female associates both of whom carried large cans filled with 

methamphetamine. After detaining Aguilar, United States Customs and 

Border Protection (CBP) agents forensically searched his cell phone without 

a warrant. Soon after, Aguilar was charged with multiple counts of narcotics 

conspiracy, possession, and importation. The district court denied Aguilar’s 

motion to suppress the evidence found during the forensic search of his cell 

phone, and following a stipulated bench trial, found Aguilar guilty on all 

counts in the indictment. Aguilar appeals only the denial of the motion to 

United States Court of Appeals

Fifth Circuit

FILED

September 2, 2020

Lyle W. Cayce

Clerk

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No. 19-40554

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suppress. Because the CBP agents acted in good faith when searching 

Aguilar’s phone, we affirm.

I.

The Gateway to the Americas International Bridge connects Nuevo 

Laredo, Mexico with Laredo, Texas. Because the bridge is a port of entry to 

the United States, any person crossing the bridge from Mexico to the United 

States must pass CBP primary inspection and, if the reviewing CBP officer 

thinks necessary, secondary inspection.

At 11:00 p.m. on May 15, 2018, Aguilar, accompanied by Cristin Cano 

and Cristal Hernandez, attempted to enter the United States on foot by 

crossing the Gateway to the Americas International Bridge. Cano was 

carrying two plastic-wrapped one-gallon cans that were labeled as containing 

hominy beans. Hernandez carried similar cans that were labeled as 

containing jalapeños. CBP Officer Saucedo was the primary inspection agent 

who interviewed Cano and Hernandez. Saucedo was suspicious of the heft 

and sound of the cans, so he referred the women to the secondary inspection 

area. The secondary inspection agent, CBP Officer Trevino, first 

interviewed Cano alone and then Hernandez and Cano together. Trevino 

was suspicious about the cans’ contents because most cans of jalapeños 

contain vinegar, but when he shook these cans, it sounded like there was no 

liquid inside the cans. Trevino’s suspicion was further heightened because

the women said that the cans contained ingredients for the Mexican soup

menudo when he had never known anyone to include jalapeños in menudo. 

Trevino thus decided to have a K9 unit inspect the cans.

Meanwhile, Aguilar was being screened by CBP Officer Serna at the 

primary inspection point. When Serna ran Aguilar’s Texas driver’s license 

through a customary database search, he received an alert that Aguilar 

previously had been arrested for smuggling two undocumented aliens into 

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the United States. Serna then asked Aguilar if he was traveling with anyone 

else, and Aguilar indicated that he was traveling with the two women who 

had been inspected by Saucedo. Serna then sent Aguilar to the secondary 

inspection area. During the secondary inspection, Aguilar told CBP agents 

that he and the two women had gone to Mexico to buy ingredients for 

menudo and that he had been the one to pay for the groceries. 

When the K9 unit arrived, there was a K9 alert on the cans carried by 

Cano and Hernandez. And an x-ray of the cans revealed anomalies. 

Following the x-ray, the CBP contacted Homeland Security Investigations 

Special Agent Salinas to continue the investigation. When Salinas arrived, 

he interviewed Cano and Hernandez, but Aguilar declined to provide a 

statement. The next afternoon, Salinas took custody of Aguilar’s phone. 

Nine days later, another agent forensically examined the phone’s SIM card 

without a warrant. The forensic data search of Aguilar’s cell phone showed

that he had recently placed six outgoing calls to phone numbers in Mexico.

Eventually, the law enforcement investigation revealed that the cans 

carried by Cano and Hernandez contained 10.7 kilograms of 

methamphetamine. Because of his connection to Cano and Hernandez, 

Aguilar was charged with conspiring to import more than 50 grams of 

methamphetamine into the United States and with importing more than 50 

grams of methamphetamine in violation of 21 U.S.C. §§ 952(a), 960(a)(1),

960(b)(1)(H), 963. He also was charged with conspiring to possess more than 

50 grams of methamphetamine with the intent to distribute and with 

possessing more than 50 grams of methamphetamine with the intent to 

distribute in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846. 

Following his indictment, Aguilar moved to suppress the evidence obtained 

from the forensic examination of his cell phone. The district court held an 

evidentiary hearing and denied Aguilar’s motion, reasoning “that the agents 

acted reasonably . . . pursuant to a good-faith belief that they could search 

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[the] phone and its contents.” Soon thereafter, Aguilar agreed to a stipulated 

bench trial, and the district court found Aguilar guilty on all counts. Notably, 

none of the evidence recovered from the forensic search of Aguilar’s phone 

was included in the facts stipulated to at the bench trial. Aguilar appeals the 

denial of the motion to suppress.

II.

A.

As an initial matter, we address whether, because of mootness, we lack

jurisdiction to consider the district court’s denial of Aguilar’s motion to 

suppress. At the stipulated bench trial, the district court found Aguilar 

guilty, beyond a reasonable doubt, of each count in the indictment without 

considering the import of the six phone calls made to Mexico. Because the 

district court found Aguilar guilty without considering the evidence that he 

sought to suppress, it appears, at first blush, that any challenge to the district 

court’s denial of Aguilar’s motion to suppress would be moot. Indeed, we 

have raised similar mootness concerns in the past. See United States v. 

Garcia-Ruiz, 546 F.3d 716, 718–19 (5th Cir. 2008). Here, Aguilar explained 

to the district court that he had agreed to the stipulated bench trial with the 

understanding that he had preserved the suppression issue for appeal. See 

Garcia-Ruiz, 546 F.3d at 719 (citing United States v. Mendoza, 491 F.2d 534 

(5th Cir. 1974), which permitted appeal on the merits of a suppression motion 

from a trial on stipulated facts because defendants “sought to expressly 

reserve their right to appeal from the order denying the motion to 

suppress”). Stated differently, Aguilar’s agreement to the stipulated facts 

was subject to the correctness of the district court’s ruling on the motion to 

suppress. Further, towards the end of the stipulated bench trial, the district 

court assured Aguilar that he was “going to be able to appeal . . . to another 

Court to see if there were any mistakes that were made, as far as the 

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suppressing the evidence.” Based on these statements, we are convinced 

that Aguilar reserved the right to appeal the district court’s denial of his 

motion to suppress. Consequently, we are satisfied that we have jurisdiction 

to consider the merits of this appeal.

B.

Having determined that the district court’s denial of Aguilar’s motion 

to suppress is properly before us, we turn to the merits of the motion to 

suppressruling. “When reviewing a denial of a motion to suppress evidence, 

we review factual findings for clear error and the ultimate constitutionality of 

law enforcement action de novo.” United States v. Scroggins, 599 F.3d 433, 

440 (5th Cir. 2010). Because the government prevailed below, we view the 

evidence in the light most favorable to it. See id. 

Aguilar argues that the Supreme Court’s decision in Riley v. 

California, 573 U.S. 373, 393–97 (2014), which recognized a heightened 

privacy interest in smart phones, bars warrantless forensic searches of cell 

phones at the border. The district court did not reach this issue, but instead, 

held that regardless of whether there was a Fourth Amendment violation, the 

evidence obtained from Aguilar’s cellphone should not be suppressed 

because the agents who conducted the forensic search acted in good faith.

Starting with the basics, the Fourth Amendment prohibits 

unreasonable searches and seizures. See U.S. Const. amend. IV. When 

government officials conduct a search in violation of the Fourth Amendment,

prosecutors are barred from introducing evidence obtained in the unlawful 

search at trial. See United States v. Ganzer, 922 F.3d 579, 584 (5th Cir. 2019). 

But, as the district court noted, there is the good faith exception to the 

exclusionary rule. Under this exception, “evidence is not to be suppressed

. . . where it is discovered by officers in the course of actions that are taken in 

good faith and in the reasonable, though mistaken, belief that they are 

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authorized.” United States v. Ramirez-Lujan, 976 F.2d 930, 932 (5th Cir. 

1992) (internal quotations and citation omitted). This exception thus applies 

when government officials “acted reasonably in light of the law existing at 

the time of the search.” United States v. Molina-Isidoro, 884 F.3d 287, 290 

(5th Cir. 2018). Accordingly, to determine whether the district court 

properly applied the good faith exception to deny Aguilar’s motion to 

suppress, we ask: What was the law at the time of the search, and secondly, 

was CBP’s forensic search of Aguilar’s cell phone objectively reasonable in 

the light of the then-existing law?

Although the Fourth Amendment applies at the border, its 

protections are severely diminished. See id. at 290–91. At the border, “[t]he 

government’s interest is at its ‘zenith’ because of its need to prevent the 

entry of contraband . . . and an individual’s privacy expectations are lessened 

by the tradition of inspection procedures at the border.” Id. at 291 (citations 

omitted). Accordingly, the border-search exception allows officers to 

conduct “routine inspections and searches of individuals or conveyances 

seeking to cross [United States] borders” without any particularized 

suspicion of wrongdoing. United States v. Ramsey, 431 U.S. 606, 619 (1977)

(internal quotations and citation omitted). Individualized suspicion may, 

however, be required if a border search is “highly intrusive” or impinges on 

“dignity and privacy interests.” United States v. Flores-Montano, 541 U.S. 

149, 152 (2004). 

Neither this court nor the Supreme Court has announced whether 

forensic digital border searches require individualized suspicion. But, at the 

time of the search of Aguilar’s phone, the Ninth Circuit, the Fourth Circuit, 

and a Maryland district court had concluded that forensic digital border 

searches require reasonable suspicion. See United States v. Cotterman, 709 

F.3d 952, 968 (9th Cir. 2013) (en banc); United States v. Kolsuz, 890 F.3d 133, 

144–46 (4th Cir. 2018), as amended (May 18, 2018); United States v. 

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Saboonchi, 48 F. Supp. 3d 815, 819 (D. Md. 2014). It appears to us, however, 

that no court had required a warrant to conduct a forensic search of a 

cellphone at the border.

Given the state of the law at the time Aguilar’s phone was forensically 

searched, we conclude that the border agents had a good faith, reasonable 

belief that they could search Aguilar’s phone without obtaining a warrant. At 

the time of the search, CBP knew Aguilar had attempted to cross the border 

with Cano and Hernandez who were carrying four cans that physical 

inspection and x-rays revealed to be suspicious. Further, a K-9 unit had 

alerted the agents to the presence of narcotics in the cans, and Aguilar had 

implicated himself as the purchaser of the cans’ contents. Thus, there was 

clearly “a particularized and objective basis for suspecting [Aguilar] of 

criminal activity,” which is all that is required to establish reasonable 

suspicion, the highest level of suspicion that had been required at the border

at the time of the search.

1

 See Ornelas v. United States, 517 U.S. 690, 696 

(1996) (internal quotations and citations omitted). And, although Riley made 

clear that individuals have a heightened privacy interest in smart phones, this 

court has held post-Riley that border agents acted reasonably when they 

1 As discussed at oral argument, subsequent to the search of Aguilar’s phone, the 

Ninth Circuit has held that “border officials may conduct a forensic cell phone search only 

when they reasonably suspect that the cell phone contains contraband.” United States v. 

Cano, 934 F.3d 1002, 1020 (9th Cir. 2019). Thus, according to the Ninth Circuit, 

warrantless forensic searches of cell phones are impermissible when the agents merely 

suspect that the phone will contain evidence “of past or future border-related crimes.” See 

id. Because Cano was decided after the search of Aguilar’s phone, we do not consider its 

holding in assessing whether the agents acted in good faith. See Molina-Isidoro, 884 F.3d at 

290. And, although Judge Costa’s concurrence in Molina-Isidoro expressed similar 

concerns about allowing border cell phone searches for items other than contraband, see id.

at 295–97, Cano is the only case that we have found that requires a warrant to conduct a 

forensic data search at the border. We therefore think that, at the time of the forensic 

search, it was objectively reasonable for the CBP agents to conclude that reasonable 

suspicion was all they needed to conduct a forensic search of Aguilar’s phone.

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“continue[d] to rely on the robust body of pre-Riley caselaw that allowed 

warrantless border searches of computers and cell phones.” Molina-Isidoro, 

884 F.3d at 292. We therefore agree with the district court that the good faith 

exception to the exclusionary rule applies to the forensic search of Aguilar’s 

phone, and we affirm the district court’s denial of Aguilar’s motion to 

suppress.

III.

To sum up: the only issue presented in this appeal is whether the 

district court erred in denying Aguilar’s motion to suppress the information 

obtained from the forensic border search of his cell phone. We have 

jurisdiction to consider this issue because, although he agreed to a stipulated 

bench trial, Aguilar expressly reserved the right to appeal the district court’s 

denial of the motion to suppress. And because the good faith exception to 

the exclusionary rule applies to the forensic search of Aguilar’s phone, the 

district court did not err in denying Aguilar’s motion to suppress. 

Accordingly, the judgment of the district court is, in all respects, 

AFFIRMED.

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