F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v.

M I G U E L A N G E L C A

N O , Defendant-Appellant

. No. 17-50151

D.C. No. 3:16-cr-01770-B T M-1

OPI N I ON

A ppeal from the United States District Court for the Southern District of California B arry Ted Moskowitz , District J udg e, Presiding

Arg ued and Submitted April 10, 2019 Pasadena, California

F iled Aug ust 16, 2019

B efore: Susan P. Graber and J ay S. B y bee, Circuit J udg es,

a nd M. Doug las Harpool, * District J udg e.

Opinion by

J udg e B y bee

* T h e Ho n o rab le M. Do u g las Harp o o l, Un i ted States District J u dg e f o r th e W estern District o f Misso u ri, sittin g b y

d esig n atio nU N I T E D S T A T E S V

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SUMMARY * *

Crim inal Law

The panel reversed the district c o u r t ’ s order deny ing the defend ant’s motion to suppress evidence obtained from warrantless searches of his cell phone by Customs and B order Protection officials, and vacated his c onviction for importing cocaine.

Apply ing United States v. Cotterman , 709 F .3d 952 (9th Cir. 2 01 3 ) ( en banc), the panel held that manual cell phone searches may be conducted by border officials without reasonable suspicion but that forensic cell phone s e a r ches require reasonable suspicion. The panel clarified Cotterman by holding that “reasonable suspicion” in this contex t means that officials must reasonably suspect that the cell phone contains dig ital contraband. T h e panel further concluded that cell phone searches at the border, whether manual or f orensic,
must be limited in scope to whether the phone contains dig ital contraband; and that a broader search for evidence of a crime

ca n n o t be justified by the purposes of the border search

ex c e ption to the F ourth Amendment warrant requirement.

The p a nel held that to the e x tent that a B order P a t r ol
ag ent’s search of the defendant’s phone – which included the recording of phon e numbers and tex t messag es for f urther processing – went bey o n d a verification that the phone lacked dig ital contraband, the search ex ceeded the proper scope of a border search and was unreasonable as a border search under

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

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the F ou r t h Amendment. The panel held that althoug h the
ag ents had r eason to suspect the defendant’s phone would contain evidence leading to a dditional drug s, the record does
not g ive rise to an objectively reaso n a b l e suspicion that the dig ital data in the phone contained contraband, and the border search ex ception therefore d id not authoriz e the ag e n t s to

con d u c t a warrantless forensic search of the defendant’s phone. The p ane l h eld that the g ood faith ex ception to the

ex c lusionary rule does not a p ply because the border officials did n ot rely o n binding appellate precedent specifically authoriz ing the cell phone searches at issue here.

Rejecting the defendant’s contention that the g overnment violated his rig hts unde r B r ady v , Maryland

, 373 U.S. 83 (1963), and F ed. R. Crim. P. 16, by failing to turn over c ertain information he requested from the F B I and DEA in pursuit o f this third-party defense, the panel f ound no evidence that the prosecutio n had knowledg e or possession of evidence showing that the d e f

endant’s c o usin or his cousin’s g ang were involved in d

rug trafficking a t the Mex ico-California border,

a nd held that the prosecutor should not be held to h a v e “access” to any information that an ag ency not involved in the investig ation or p rosec ution of the case refuses to turn

over.U N I T E D S T A T E S V

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COUNSEL

Harini P. Rag hupa t hi (arg ued), F ederal Defenders of San Dieg o, I n c., San Dieg o, California, for Defendant-Appellant.

M ark R. Rehe (arg

ued), A ssistant United States Attorney ; Helen H. Hong
, Assistant U nited State s Attorney
, Chief, Appell ate Section, Criminal Division; Adam L

. B raverman, United States Attorney ; U nited States Attorney ’s Office, San Dieg o, California; for Plaintiff-Appellee.

Sophia Cope and A dam Schwartz

, E l e c t ronic F rontier F oundation, San F ranc isco, California, for Amicus Curiae Electronic F rontier F oundation.

OP INION

B YB EE, Circuit J udg e:

Defendant-Appellant M i g uel Cano was arrested for
carry ing cocaine as he a ttempted to cross into t h e United States from Mex ico at the San Y s idro Port of Entry

. Following his arrest, a Customs and B order Protection official seiz ed Cano’s cell p hone and searched it, first manually and then using softw are that accesses all tex t messag es, contacts, call l o gs , media, and application data. W h en Cano moved to suppress the evidence obtained from the warrantless searches of his cell phone

, t h e d istrict court h e ld that the searches were valid under the border searc h

ex c e ption to the F ourth Amendment’s warrant requirement.

Apply ing United States v. Cotterman , 709 F .3d 952 (9th Cir. 2 013) (en banc), w e conclude t h a t manual cell phoneU N I T E D S T A T E S V

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searches may be conducted by border officials witho ut

r e a sonable suspicion but that forensic cell phone search e s require reasonable suspicion. W e clarify C o t t erman b y holding that “ reasonable suspicion” in this contex t means that officials must reasonably suspect that the cell phone contains dig ital contraband. W e f urther conclude that cell phone searches at the bor d e r , w h ether manual or forensic, must be limited i n s c o p e to a search for dig ital contraband. I n this
case, the officials violated the F ourth Amendment when their warrantless searches e x ceeded the permissible scope of a border search. According ly

, we hol d that most of the evidence from the searches of Cano’s cell phone should have been suppressed. W e also conclude that Cano’s Brady c laims

are unpersuasive. B e cause w e vacate Cano’s conviction, we do not reach his claim of prosecutorial misconduct.

W e reverse the district court’s order deny ing Cano’s motion to suppress and vacate Cano’s conviction.

I . THE B ACKGROUND

A. The Facts

Defendant-Appellant Mig uel C ano worked in the flooring and c arpet installation trade and lived with h i s wife a nd children in the Mission Hills commun i t y north of L os Ang eles. I n the summer of 2016, however, Cano moved from L os Ang ele s t o Tijuana, Mex ico, where he stay ed with his cousin J ose Medin a

. While stay ing with Medina, Cano crossed the border into the U nited States six times, sometimes remaining in the United States for less than th i r ty minutes. On two of th o s e trips, Cano was r eferred to secondary inspection, but no contraband was found.U N I T E D S T A T E S V

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On J uly 25, 2016, Cano arrived a t the San Ysidro Port o f Entry f rom Tijuana. I n primary inspection, Cano stated that “he was living in Mex ico, working in San Dieg o, but g oing to L A o n that day .” Pursuant to a random Customs and B order Protection (CB P) computer referral, Cano was r eferred to secondary inspection, where a n arcotic-detecting dog a lerted
to the vehicle’s spare tire. A CB P o fficial removed the spare tire from the undercarriag e of the truck and d isco v er ed 14 vacuum-sealed packag es inside, containing 14.03 kilog rams (30.93 pounds) of cocaine.

Cano was arrested, and a CB P official administrative ly seiz ed his cell phone. T he CB P o f f i c i a ls called Homeland Security I nv es t ig ations (HSI ), which dispatched Ag ents Petonak and Medrano to investig ate. After a r r i v ing

, Ag ent Petonak “briefly

” and manually reviewed Cano’s cell phone, noticing a “ leng thy call log ” b ut no tex t messag e s. Ag ent Petonak later stated that the purpose of this m a n u a l search

was “two-prong ed”: “to find some brief investig ative leads in the current case,” a

n d “ to see if there ’s e v i d e nce of other thing s coming across the border.”

Ag ent Petonak proceeded to question Cano, who waived his M iranda rig hts a

n d ag reed to talk. During that interview, Cano denied any knowledg e of the cocaine. Cano stated that he had moved to Tijuana to look for work i n n e arby San Dieg o, b ecause work was slow in L o s Ang eles. He a lso said he had crossed the border ever y day for the previous three weeks looking for work. He told Ag ent Petonak that he was headed to a c arpet store in Chula Vista that day to seek work. W h en pressed, Cano was n o t able to provide the n ame o r address of the store, claiming that he intended to look it u p on Goog le after crossing the border. Cano a lso ex plained that he did not have his flooring tools with him in his pickup truck soU N I T E D S T A T E S V

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as to avoid p roblems with border crossing s; Cano intended to drive to L os Ang eles to retrieve his tools if he lo ca t ed work in San Dieg o.

During the in t e rrog ation, Ag ent Petonak specifically asked Cano a

bout the lack of tex t messag es on his cell phone. Cano responded that his cousin had advised him to delete his
tex t messag es “just in case” h e g ot pulled over in Mex ico a nd police were to check h is cel l p h o ne. Cano stated that he erased his messa g e s to a void “any problems” with the Mex ican police.

W h ile Ag ent Petonak q

uestioned Cano, Ag ent Medrano conducted a second manual search o f the cell phone. Ag ent Medrano browsed the call log and wrote down some of the phone numbers on a piece of paper. He also noticed two messag es that a

rrived after Cano had reached the border, a nd he took a photog raph of the messag es

. The first messag e stated, “Good morning ,” and the second messag e s tated, “Primo, are y o u coming to the h ouse? ” Ag ent Medrano g ave all of this information—the recorded l i s t of calls and the photog raph—to Ag ent Petonak.

F inally

, Ag ent Medrano conducted a “log ical download” of the phone usin g Cellebrite software. A Cellebrite search

e n a b l e s the user to access tex t messag es, contacts, call log s, media, and application data on a cell phone an d t o select which ty p es of data to download. I t does not, however, allow the user to access data stored within third-party a pplications. Ag ent Medrano ty

pically does n ot select the opt i o n to download photog raphs.

After Ag ent Petonak i n t e r viewed Cano, he reviewed the results of the Cellebrite download of Cano’s phone by Ag entU N I T E D S T A T E S V

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Medrano. The Cellebrite results revealed that Cano had sent

no tex t messag es, and it listed al l the calls made by Cano. Ag ent Petonak later concluded that none of t h e p h o ne numbers in the c all log corr esponded to carpeting stores in San Dieg o.

B

. The Proceedings

Cano was indicted for importing cocaine. B efor e trial, Cano moved to suppress any evidence obtained from Ag ents Petonak and Medrano’s warrantless searches of his cell phone
at the border. The district court denied Cano’s motion, ruling that the manual searches and the Cellebrite search of Cano’s phone we r e v a l id border searches. During trial, the
g overnment introdu c ed evidence that resulted from the manual searches of the phon e and from Ag ent Medrano’s Cellebrite download of the phone. 1

I n preparation for trial, Cano indicated his in t e n t to present a third-party c ulpability defen s e c laiming that his cousin, J o se Medina, was responsible f or placing the drug s in Cano’s spare tire without Cano’s knowledg e. Cano p roffered evidence that Medina had a k ey to Cano’s car and h a d driven it shortly before Cano’s attempted border crossing

, that

1 So m e

— b u t n o t all—o f th e ev i d en ce w as av ailab le t h ro u g h altern ativ e ch an

n els. Fo r ex am

p le, th e g o v ern m en t in tro d u ced a call lo g , u n ch allen g ed b y

Can o , th at th e g o v ern m en t receiv ed f ro m C an o ’ s p h on e

co m pan y

. Sim ilarly

, th e g o v ern m en t l ater o btain ed a w arran t to search th e p h o n e, an d an ag en t co n d u cted f u rth er search es. B ecau se th e g o v ern m en t in tro d u ced at trial m

u ch ev id en ce p re- d atin g th o se ev en ts, an d b ecau se th e g o v ern m en t h as n o t arg u ed th at an y Fo u rth A m en d m en t erro r w as h arm less, t

h o se later ev en ts d o n o t af f ect ou r Fo u rth A m en d m en t an aly s is

o f th e w arran t less search es. Un ited S ta tes v. Ro d rig u ez , 8 8 0 F.3 d 1 1 5 1
, 1 1 6 3 (9 th Cir. 2 0 1 8 )U N I T E D S T A T E S V

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Medina had a criminal record including a c onviction for cocaine possession, that Medina was a member of a Chicag o

based g a ng called the L atin K in gs , a nd that the L atin King s sold cocaine within the United States and were involved with a cartel that trafficked drug s across the border.

F ollowing Cano’s implication o f Medina, the g overnment contacted Medina and promised him immunity a nd immig ration papers in ex chang e for his c ooperation. Medina initially denied being involved with drug s, but later contacted the g overnment on his own and offered to help them with the “big g est RI CO case” a nd “drug se i z u r e s of 20 to 25 kilog rams a t a t i m e

. ” All of this information was made available to Cano.

As part of his defense, Cano soug h t additional discovery from H SI
, the F ederal B ureau of I nvestig ation (F B I )

, and the D r u g Enforcement Ag ency (DEA) reg arding : ( 1) r e cords linking Medina to drug sales, distribution, or trafficking ; a nd (2) records linking the L atin King s to dru g t rafficking from Mex ico t o Southern California. The g overnment opposed Cano’s discovery motion, arg uing tha t the evidence was not material u nder F ederal Rule of Criminal Procedure 16(a)(1)(E)(i) and that d iscovery should be limited to HSI
, a s

n e i t h e r the DEA nor the F B I had participated in th e investig ation of Cano. T h e d istrict court orig inally overruled both objections, finding the evidence material under Rule 16 and ex culpatory under B rady v. Maryland

, 373 U.S. 83 (1963). The c o urt a lso r easoned that, because H SI could inquire of the DEA and F B I if it soug ht inculpatory evidence, HSI ha d a cc e s s to the files and was required to provide any

ex c u lpatory

evidence held by

the DEA or F B I

.U N I T E D S T A T E S V

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I n response to the court’s d iscovery order, HSI produced Medina’s immig ration file and his B ureau of Prisons record. Ag ent Petonak also searched for Medina’s na m e i n two different police clearing h o uses, but neither r eturned any hits. 2 B oth A g e nt Petonak and the United States Attorney ’s Office (USAO) subsequently requested information showing a link bet w e e n the L atin King s and drug trafficking from Mex ico from the l e ga l co unsel of both the F B I and DEA. B oth
ag encies denied the requests without p r o viding any

ex p lanation or any indication a s to whether the requested information ex isted.

F ollowing these attempts, the g overnment moved f or the district court to reconsider its discovery ord er and ex cuse it from d iscovery relating to files held b y the F B I and DEA. Th e d istrict court g ranted the motion to reconsider, finding that the p rosecutor d id not have access to the evidence when he was “rebuffed” by ag e ncies over which he had no c ontrol.

The case proceeded to trial and Cano presented his thirdparty culpability defense. The f irst trial resulted in a hung jury and a mistrial. On retrial, Cano ag ain relied on h is thirdparty c ulpability defense. T he second trial resulted in Cano’s conviction. This appeal followed, in which Cano raises three issues: (1) w hether the warrantless searches of his c ell phone violated the F ourth A m endment a nd whether the resulting evidence should b e suppressed; (2) whether the g overnment’s non-disclosure of materials th a t m ay have been held by the DEA and F B I violated his rig ht to d ue process under Brady

2 A p o l ice clearin g h o u se w o rk s f o r th e p u rp ose o f “ d eco n f

lictio n ” b y

n o tif y in g an ag en cy if an o th er ag en cy h as an in v estig atio n p en d in g ag ain st th e sam e p erso n o r item

. T h e DEA an d F B I p articip ate in t h e tw o clearin g h o u ses search ed b y A g en t P eto n ak

.U N I T E D S T A T E S V

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and F ederal Rule of Criminal Procedure 16; and (3) whether the g o vernment r aised an improper propensity inference in its closing arg ument. W e address Cano’s first two arg u ments in
turn. B e cause we conclude that the district court erred in deny ing Cano’s motion to suppress, we vacate C ano’s conviction and do not reach his claim of prosecutorial misconduct.

I I . THE W ARRANTL E SS SEARCH OF CANO’S

CEL L PHONE

The F ourth Amendment protects “[ t] h e r ig ht of the people
t o b e s e cure in their p ersons, h ouses, papers, and effects,
ag ainst unreasonable searches and s eiz ures.” U.S. Const. amend. I V. 3 Ordina rily

, before conducting a search, police
must obtain a warrant issued b y a judicial officer based “upon probable cause, supported by Oath or a f f i rmation, a

nd particularly describing the place to be searched, and the
persons or thing s to be seiz ed.” Id

. W a rrants are g e n e r a l l y required “ unless ‘the ex ig encies of the s i t uation’ make the needs of law e nforcement so compelling that the warrantless search i s o bjectively reasonable under the F ourth Ame n dment.” Mincey v. Arizona
, 437 U.S. 385, 393–94 (1978) (citation om i t t e d )

. C o n s e q u e ntly

, “searches conducted outside the judicial process, without prior approval by judg e

or mag istrate, are per s e u n reasonable under the F ourth Amendme n t—subject o nly to a few specifically e stablished and well-delineated ex ceptions.” Katz v

. United States , 389 U.S. 347, 357 (1967) (footnote omitted). Such “specifically establish e d and well-delineated ex ceptions” include e x ig ent

3 W e rev iew d e n o v o “ th e d istrict co u rt’ s d eterm in atio n th at [a]

w arran t less searc h

. . . w as a v alid bo rd er search .” Un ited S ta tes v. Ca rd o n a , 7 6 9 F.2 d 6 2 5 , 6 2 8 (9 th Cir. 1 9 8 5).U N I T E D S T A T E S V

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circumstances, searches incident to arrest, v e hicle search e s , and border searches. See Arizona v. Gant
, 556 U.S. 332, 343 (2009) (vehicle searches); Brig h a m C i ty v. Stuart
, 547 U.S. 398, 403 (2006) ( e x ig ent c ircumstances; listing other

ex c e ptions, including war r a ntless entry to fig ht a fire, to p r e vent the imminent d e struction o f evidence, or in “hot pursuit” of a fleeing suspect); United States v

. Ramsey
, 431 U.S. 606, 616 (1977) (border searches); W e e k s v. United States
, 232 U.S. 383, 392 (1914) (searches incident to arrest),

o v e r ruled in part on o ther grounds by Mapp v. Ohio

, 3 6 7 U.S. 643 (1961).

Ex ceptions to the warrant r equirement are subject to two important co n s traints. F irst, any search conducted under an

ex c e ption must be within the scope of the ex ception. Second,

some searches, even w hen conducted within the scope of the

ex c e ption, are so intrusive that t h e y require additional justification, up to and including p robable cause and a warrant.

The first constraint is illustrated by the Supreme Court’s decision in Riley v. California

, 5 7 3 U

. S. 373 (2014), a case involving the search incident to arrest ex ception. I n R iley

, the Court addressed “whether the p olice may , without a warrant, search d ig ital information on a c ell phone s e i z e d from an individual who has been arrested ”; in other words, whether cell phones fell w i t h i n the scope of the search incident to arrest ex ception. Id. at 3 78. The Court beg an by recog niz ing
t h e increasing role in our lives o f “minicomputers that a l s o happen to have the capacity to b e used as a telephone”; “[ m] odern c ell phones, as a categ ory , implicate privacy

c o n c erns far bey ond those implicated by the search o f a

c i ga r ette pack, a wallet, o r a purse.” Id. at 393. Acknowledg ing that “ it has been well accepted that [ a searchU N I T E D S T A T E S V

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i n cident to lawful arrest] constitutes an ex ception to th e warrant requ i r e m e nt,” id. a t 382, the Court pointed out that such searches serve two p urposes: (1) to secure “the officer’s safety ” a nd (2) to “prevent

. . . concealment or destruction [ o f

e vidence] ,” id. at 3 83 (citation omitted). The Court t h e n considered whether a cell phone search qualified as a search incident to arrest by considering “whether application of the search incident to arrest d o c t r i n e to [ cell phones] would ‘untether the rule f

rom the justifications underly ing the

. . . ex c e ption.’” Id. at 386 (quoting Gant , 556 U.S. at 343).

The Cou r t c o ncluded that neither purpose for the search i ncident to arrest ex ception justified the search of a c ell phone. The Court rejected the g o v er n ment’s arg ument that searchi n g a cell p hone incident to arrest would “help ensure officer safety in

. . . indi r e c t w ay s, for ex ample by alerting officers that confederates o f the arrestee are headed to t he scene.” I d. at 387. T h e Court reasoned that the g overnment’s position “w o u l d

. . . represent a b roadening ” o f the

ex c e ption’s foundational concern that “ a n arrestee himself mig ht g rab a weapon and use it a g ain s t a n officer.” Id. at 387–88. T he C o u r t observed that “once law enforcement officers have secured a cell phone, there is no long er a ny risk that the a rrestee h i m s e lf will be able to delete incriminating data from the phone,” id. a t 388, a n d police h ave means to

ensure that data cannot be wiped from the pho n e remotely

, id. at 390. The Court concluded “not that the information on

a cell phone is immune from sear c h ; [ but rather] that a warrant is g enerally required before such a search, even when a cell phone is seiz ed incident to arrest.” Id. at 401.

The second constraint on warra n t l ess searches is il l ustrated by the Court’s d e c ision in United S tates v

. Montoya de H

ernandez

, 473 U.S. 531 (1985). Montoy a wasU N I T E D S T A T E S V

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stopped at L os Ang eles I nternational Airport and referred to secondary inspection. Id. at 533. She had a r r i v e d from B og ota and was carry

ing $5,000 in c ash. Id. S h e h ad n o credit cards and no ho t e l reservations. Id. at 533–34. Be cause border officials suspected that Montoy a may h a v e swallowed cocaine-filled balloons, Montoy a was held in the
customs office and, a fter a mag istrate judg e issued an order, taken to a h o s p i t al for a rectal ex amination. Id. at 534–35. Over the nex t four day s, she passed 88 balloons c o n t a i ning cocaine. Id. at 536. Montoy a a rg ued that the search she was subjected to, thoug h a border search, w as so intrusive that it could not be conducted w ithout a h ig h level of particulariz ed suspicion. I

d

. at 536–37, 540. The Court balanced her privacy interests ag a inst the interests of the g overnment at the border a nd concluded that, w h ile routine searches may be conducted at the border without any showing of suspicion, a

more intrusive, nonroutine search m ust be supported b y “reasonable suspicion.” Id. at 537–41; see also United States

v. Flores-Montano

, 541 U.S. 149, 152 ( 2004) (sug g esting that nonroutine searches are limited to “hig hly intrusive searches of the person” involving

“dig nity and privacy

interests”).

Cano recog niz es that he was subject to search at the border, but Cano and amicus Electronic F rontier F oundation (“EF F ”) raise two categ o rical challeng es and one as-applied challeng e to t h e searches conducted here. F irst, EF F arg ues t hat any warrantless search of a cell phone falls outside t h e scope of the border search ex c eption. Second, E FF arg ues that even if the search is within the scope of the border search

ex c e ption, a warrantless cell p hone search is so intrusive that it requires probable cause. W e address these cate go r i cal challeng es in Part I I .A. Third, Cano asserts that, even if c ell
p h o nes are g enerally subject to search at the b o rder

, t h e manual and forensic searches of his cell phone ex ceeded theU N I T E D S T A T E S V

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“well delineated” scope of the border search. W e address this

a s-applied question in Part I I

. B

. F inally

, the g overnme n t arg ues that e ven if the border search ex ceeded the limits o f the F ourth Amendment, the search was conducted in go od faith, and the evidence is admissible. W e consider the g ood faith ex ception in Part I I .C.

A. Border Searches and Cell Phones

“[ B ] order searches constitute a ‘historically recog niz ed

ex c e ption to the F ourth A mendment’s g eneral principle that

a warrant be obtained.’” Cotterman
, 709 F .3d at 957 (quoting Ramsey , 431 U.S. at 621). I ndeed, b order searches ty pically do not require any particulariz ed suspicion, so long as they

are “routine inspectio n s and searches of individuals o r convey ances seeking to cross our borders.” Almeida-Sanchez

v. United States
, 413 U.S. 266, 272 (1973); see U nited States

v. Seljan

, 547 F .3d 993, 999 ( 9th Cir. 2008) ( en b a nc). Such searches are “reasonable simply by virt u e o f the fact they

occur at the border.” R a m s e y , 431 U.S. at 616. The

e x c eption is “rooted in ‘the long -standing rig ht of t h e sovereig n to protect itself by stopping and ex amining persons and property crossing into this country ,’” Cotterman
, 709 F .3d at 9 60 (quoting Ramsey
, 431 U.S. at 616), to “ prevent[ ]
t h e e ntry of unwanted persons and effects,” id. (quoting Flores-Montano , 541 U.S. at 152).

The sovereig n ’ s rig h t to conduct suspicionless searches at the border “ does not mean, however, that at the border ‘any thing g oes.’” Id. (quot i n g Seljan

, 547 F .3d a t 1000). Rather

, t h e border search ex ception is a “narrow ex ception” that is limited in two important way s. Id. (citation omitted). F irst, “[ t] he authoriz ing statute lim i t s the persons who may l eg ally conduct a ‘border search’ to ‘persons authoriz e d t oU N I T E D S T A T E S V

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board or search vessels.’” U nited St ates v. Soto-Soto
, 598 F .2d 545, 549 (9th Cir. 1979) (citing 19 U.S.C. § 482). 4 This includes customs and immig ratio n o fficials, but n ot g eneral law enforcement officers such as F B I ag e nts. Id. ; see United States v. Diamond

, 471 F .2d 7 71, 773 (9th Cir. 1973) (stating that “ customs ag ents are not g eneral g uardians of th e p u b l ic peace”). Second, a border search mus t b e conducted “in enforcement of customs laws.” Soto-Soto
, 598 F .2d a t 549

. A border search must be c ond u c t ed to “enforce importation laws,” and n o t f

or “g eneral law enforcement purposes.” Id.

4 Sectio n

4 8 2 n o w read s in relev an t p art:

A n y o f th e o f

f icers o r p erso n s au th o rized to b o ard

o r search v essels m ay sto p , s earch

, an d ex am in e

. . . an y

v eh icle, b east, o r p erso n , on w h ich o r w h o m h e o r th ey sh all su sp ect th ere is m erch a n d i s e w h ich is su b j ect to d u ty , o r sh all h av e b een in tro d u ced in to th e Un ited Stat e s in an y m an n er co n trary to l aw

. . . . [an d m ay ] seize an d secu re th e sam e f o r trial.

1 9 U.S.C. § 4 8 2 (a); see id

. § 1 4 6 7 (“ [T ]h e ap p ro p riate cu sto m s o f f icer f or [a] p o rt o r p lace o f arriv al m ay

. . . en f o rce, cau se in sp ectio n , ex am in atio n , an d search to b e m ad e o f t h e p erso n s, b ag g ag e, an d m erch an dise d isch arg ed o r u n lad en

f ro m [an arriv in g ] v essel

. . . .”); id

. § 1 4 9 6 (“ T h e ap p ro p riate cu sto m s o f

f icer m ay cau se an ex am in atio n to b e m ad e o f th e b ag g ag e o f an y p erso n s arriv in g in th e Un ited States in o rd er to ascertain

w h at articles are co n tai n e d t he r ein an d w h eth er su b j ect t o d u ty , f

ree of d u ty , or p ro h ib ited

. . . .”); id

. § 1 5 8 2 (“ [A ]ll p erso n s co m i n g in to th e Un i ted States f

ro m f o reig n co u n tries sh all be liab le to d eten tio n an d search b y au th orized o f

f icers o r ag en ts . . . .”).

T h e Co u rt h as d escrib ed § 4 8 2 as g ran tin g th e ex ecu tiv e “ p l en a r y

au th ority t o co n d u ct ro u tin e search es an d seizu res at th e b o rd er, w ith o u t p ro b ab le cau se o r a w arran t .” Mo n to ya d e Hern a n d

ez , 4 7 3 U.S. at 5 3 7

. W e h av e h eld th at th e “ o u ter lim its o f au th o rity d eleg ated b y

[§ 4 8 2 are]

av ailab le o n ly

in b o rd er search es.” Co r n g o ld v. Un ited S ta tes , 3 6 7 F.2 d 1 , 3 (9 t h Cir. 1 9 6 6 ) (en b an c).U N I T E D S T A T E S V

. C A

N O 17

A g eneral search cannot be “justif[ ied]

. . . on the mere basis that it occurred at the border.” Id. (affirming the suppression of evidence where an F B I ag ent stopped and searched the vehicle of an alien to d et e r m i ne whether the car had been stolen).

1. Cell Phone Data as Contraband

As we d i scussed briefly above, the Supreme Court has identified t w o principal purposes b ehind warrantless border searches: F irst, to identify “[ t] ravellers

. . . entitle d to come in” and, second, to v erify their “belong ing s as effects which

m a y be lawfully broug ht in.” Carroll v. United States
, 267 U.S. 132, 154 (19 2 5 ) ; s ee Ramsey
, 431 U.S. at 620 (“The border-search ex ception is g rounded in the recog niz ed rig ht of t h e s o vereig n to c ontrol

. . . who and what may enter the country .”).

EF F arg ues that apply ing the border search e x c eption to

a cell phone’s data would “untether” th e e x ception from the
purposes underly ing it. EF F c ontends t h at a border search
encompasses only a search for illeg a l persons and physical contraband located on th e body of the applicant for admission or a mong his effects. B ecause dig ital d ata on a c ell phone cannot conceal obje c t s s u ch as drug s, g u ns, o r smug g led pe r s o n s, EF F asserts that dig ital cell phone searches are alway s bey ond the scope o f the bo r d er search

ex c e ption.

W e ag r ee with EF F that the p urpose of the border search is to interdict contraband, but we disag ree wit h its premise that cell phones cannot co n tain contraband. Althoug h c ellU N I T E D S T A T E S V

. C A

N O 18

phone d ata c annot hide phy sical o bjects, 5 the data can c ontain digital contraband . The best ex a mple is child pornog raphy

. S e e United S

tates v. Molina-Isidoro

, 8 84 F .3d 287, 295 n

. 3 (5th Cir. 2018) (Costa, J
., specially concurring ) (“One ty p e o f contraband that can b e stor e d w i thin the data o f a c ell phone

. . . is child pornog raphy .”). And because cell phones
may u ltimately be released into the interior, even if the owner has been d e t a ined, the United States has a strong interest in preventing the entry o f such material. See
, e.g. , United States

v. V ergara , 884 F .3d 1309, 1311 ( 11th Cir.) (describing h ow ag ents r eturned one of the def e n d ant’s phones to a family member after defendant h ad been arrested for possessing child pornog raphy on his other two phones), cert. denied

, 139 S. Ct. 70 (2018). W e find no basis for the proposition that the border search ex ception is limited to searching for phy sical

co n t r a band. At the v ery least, a cell phone that has photos stored on it is the equivalent of photog raphs, mag az ines, a nd b o o k s

. 6 See Riley

, 573 U.S. at 394; Cotterman
, 7 0 9 F .3d a t 964. The contents may be dig ital when they are on the phone, but the p hy sicality o f the phone itself and the possibility that

5 N o o ne co n tests t

h at a b o rd er o f

f icial co u ld

, co n sisten t w ith th e Fo u rth A m en d m en t, ex am in e th e p h y sical b o d y o f a cell p h o n e to see if th e p h o n e itself is co n t

rab an d

— b ecau se, f

o r ex am p l e, i t is a p i rated co p y

o f a paten ted U .S. p h o n e—o r if th e p h on e i tself p resen ts a ph y s ical th reat to o f f icers. S ee Riley

, 57 3 U.S. at 38 7 (“ L aw en f orcem en t o f

f icers rem ain fr e e t o e x am in e th e p h y sical asp ects o f a p h o n e to en su re th at it w ill n o t b e u sed as a w eap o n

—say , to d e t e r m i n e w

h eth er th ere is a razo r b lad e h id d en b etw een th e p h o n e an d its case.”). T h e d isp u te h ere co n cern s o n ly

w h eth er b o rd er o f

f icials m ay

search th e dig ital d ata co n tain ed w ith i n th e p h o n e.

6 W e n eed n o t ad d ress h ere q u estio n s s u rro u n d in g th e u se o f “ clo u d

co m pu tin g ,” w

h ere th e p h o n e g iv es access to , b u t d o es n o t co n tain in its

o w n m em o ry , dig ital d a t a sto red in th e clo u d. S ee Riley

, 5 7 3 U.S. at 3 9 7

– 9 8 ; Co tterma n , 7 0 9 F.3 d at 9 6 5 & n .1 2

.U N I T E D S T A T E S V

. C A

N O 19

the phone’s conte n t s c a n be printed or shared electronically
g ives border officials sufficient reason to inspect i t a t the border. W e c onclude that cell phones—including the phones’ data—are subject to search at the border.

2. F orensic Cell Phone Searches as an I ntrusive Search

The second question we m u st address in response to amicus EF F is w h ether forensic searches of a cell phone a re

so intrusi v e t hat they r equire reasonable suspicion or even probable cause. W e answered t h i s question in our en banc decision in Cotterman
, but w ith respect to laptop computers. 7 Cotte r m an , 709 F .3d a t 962–68. Cotterman was a United States citiz en returning to the United States from Mex ico. Id.
at 957. When he reached the port of entry , border officials noted that Cotterman had v a r i o u s convictions for sex ual conduct w ith children. Id. Concerned that Cotterman mig ht be involved in child sex tourism, officials conducted a brief search of h is laptop computers and d ig ital cameras a nd noted that the laptops had password-protected files. Id. at 958. The officials detained the computers f or sev eral day s in order to

run a comprehensive forensic search of the hard drive, which revealed hundreds of imag es of child porno gr a p hy

. Id. at 958–59. F or us, “the leg itimacy of the ini t i al search o f Cotterman’s electronic d evices at the border [ was] n ot in doubt

, ” i d

. a t 960, “[ t] h e difficult question

. . . [ was] the

reasona b leness, without a warrant, of the forensic

7 A lth o u g h Co tterma n ref erred to “ electro n ic d ev i ces” g en erally

, see 7 0 9 F.3 d at 96 2

– 6 8, o u r h o ld i n g w as l im ited to th e “ ex am in atio n of Co tterm an ’ s co m

pu t er,” id

. at 9 68
, an d d id n o t ad d ress cell p h o n es. W e

m en tio n ed cell p h o n es o n ly o n ce—in th e f irst p a r a g rap h o f th e in tro d u ctio n

d escrib in g th e m o d ern “ d ig i tal w o rld .” Id

. at 9 5 6

.U N I T E D S T A T E S V

. C A

N O 20

ex a mination that comprehensively analy z ed the hard drive o f the computer,” id. at 961.

W e acknowledg ed the “substantial personal p r i vacy i n t erests” in “[ e] lectronic devices

. . . capable o f stor i n g warehouses full of information.” Id. at 964. At th e s a me time, we r ecog niz ed “the i m p o r t ant security concerns that prevail a t t h e border” a

n d the leg itimacy of “[ t] h e effort to interdict c hild pornog raphy .” I d. at 966. W e he l d that a routine, manual search of files on a laptop computer

— “a quick look and unintrusive search”—is reasona ble “even without particulariz ed suspicion,” but that of f i c ials must “possess a p artic u l a r i z ed and objective basis for suspecting the person stoppe d o f criminal activity ” to eng ag e in a forensi c e x amination, which is “essentially a computer strip search.” Id. at 960–61, 966, 967 (citation omitted). W e concluded that reasonable suspicion was “a modest, workable standard that is already applied in the ex tended b order search, Terry stop, and other c ontex ts.” Id. at 966; s e e id. a t 968 (defining reasonable suspicion as “ a particular iz ed a nd objective basis for suspecting the particular person stopped o f criminal activity ” (quoting United States v. Cortez
, 449 U.S. 411, 417–18 (1981))).

W e think that Cotterman ’s reasoning a p p l ies equally to cell phones. I n larg e measure, w e anticipated the Supreme Court’s r easoning in Riley

, 5 7 3 U.S. a t 393–97, w h en we recog niz ed in Cotterman that d ig ital devices “c o n t a i n the
most intimate details of our lives” and “the uniquely sensitive
nature of data on electronic devices carries with it a sig nif i ca n t ex p ectation of privacy ,” Cotterman
, 709 F .3d at 965–66; see Riley

, 573 U.S. at 3 85, 393 (describing c ell
p h o n e s a s “a pervasive and insistent p art of daily life” that

,

“ a s a categ ory , implicate privacy concerns far bey ond th o s eU N I T E D S T A T E S V

. C A

N O 21

implicated by the s e a r c h of a cig arette pack, a wallet, or a purse”). T he Court’s view of cell phones in Rileyso closely resembles o ur own analy sis of laptop computers in Cotterman that we find no basis to disting uish a forensic cell p h o ne search from a forensic laptop search. 8

Nor do we believe that Riley renders the Cotterman standard insufficiently p rotective. Riley

, of course, h e ld that “a warrant is g e nerally requ i r e d ” before searching a c ell phone, “even when a cell phone is seiz ed incident to arrest.” 573 U.S. at 401. B ut here w e d e a l w ith the border search

ex c e ption—not the search incident to arrest ex ception—and the d ifferen c e in contex t is critical. I n lig ht o f the
g overnment’s enhanced interest in protecting the “integ rity o f the border” and the individual’s decreased ex pectation o f privacy

, the Court has emphasiz ed that “th e F ourth Amendment’s balance of reasonableness is qualitatively different at the inter n ational border than in the interior” a nd is “struck much more favorably to the Government.” Montoya de Hernandez

, 473 U.S. at 538–40. As a r esult, post- Ri l e y , no court h as required more than reasonable suspicion to justify even a n intrusi v e border search. See United S tates v

. W anjiku

, 919 F.3d 472, 485 (7th Cir. 2 019) (“[ N] o circuit court, before or after Riley , has required more than reasonable s u s p i c ion for a border search of cell phones

or electronically -stored data.”) ; Touset
, 890 F .3d at 1234

8 W e n o te th at t

h e Elev en th Circu it d isag reed w i th Co tterma n i n Un ited Sta tes v. To u set , 8 9 0 F.3 d 1 2 27
, 1 2 3 4 (1 1th Cir. 2 0 1 8 ). T h e co u rt h eld th at n o lev el o f

su sp icio n

w as req u ired to co n d u ct a f o ren sic search

o f a cell ph o n e. Id

. at 1 2 3 4

– 3 5

. N ev e r t h e less, t h e To u s et co u rt h eld

, in th e altern ativ e, th at th e f

o ren sic search o f v ario u s electro n ic d ev ices seized
at th e b o rd er w ere s u

p p o rted b y reaso n ab le s u sp icio n

. Id

. at 1 2 3 7

. A s

w ith m ost cell p h o n e search cases, i n To uset bo rd er ag en ts w ere lo o k in g f o r ch ild p o rn o g rap h y

.U N I T E D S T A T E S V

. C A

N O 22

( “ Riley

, which involved the search-incident-to-arre s t

ex c e ption, d o es not apply to searches at the border.”); M o l ina-Isidoro

, 884 F .3d at 291 (“F or border searches b o t h routine and not, no case has required a warrant.”); id. at 293 (“The bottom line is that only two of the many federal cases addressing border searches of electronic devices hav e e v er required a

ny level of suspicion. They both required only

reason a ble suspicion a

nd that w as for the more intrusive forensic sear c h

. ” ) ; see also Kolsuz

, 890 F .3d 133, 137 (4th Cir. 2018) (concluding that a “forensi c ex amination o f Kolsuz ’s phone must be considered a n o n r outine border search, requiring some measure o f individualiz ed suspicion” but d e c l i n ing to decide whether the standard should be reasonable suspicion or probable cause).

According ly

, we hold that manual searches of c ell phones
at the border are reasonable without individualiz ed suspicion, whereas the forensic ex amination of a c ell ph o n e requires a showing o f reasonable suspicion. S e e C o t t erman , 709 F .3d at 968.

B

. The Searches o

f Cano’s Cell P hone and the Scope of the Border Search Exception

Having concluded that b o rde r officials may conduct suspicionless manual searches of cell phones, but must have reasonable suspici o n before they conduct a forensic search,

we still must address the core o f Cano’s arg ument: whether the manual an d forensic searches of his cell phone were not searches for dig ital contraband, but searches for evidence o f

a crime, and thus ex ceeded the proper scope of a b o r der search.U N I T E D S T A T E S V

. C A

N O 23

1. The B order Ex c eption and the Search for Contraband

As a threshold ma t ter, Cano arg ues that border searches

are limited in both p urpo s e a n d scope to searches for contraband. 9 I n r esponse , t h e g o vernment arg u e s that searches for evidence that would aid in prosecuting past and preventing future b o rd e r-related c rimes are tethered to the
purpose o f the border search e x ception—namely

, interdicting foreig n contraband—and thus fall within its scope.

9 Can o em

p h asizes th at th e o f

f icials w h o arrested h im

w ere lo o k in g f o r ev id en ce o f a crim e, n ot co n trab an d th at co u ld b e seized at th e b o rd er,

an d th is ren ders th e search u n co n stitu t io n al. He p o in ts to Of

f icers P eto n ak

an d Med ran o , w

h o search ed Can o ’ s cell p h o n e, an d w h o testif ied th at th eir search es h ad a d u al pu rp o se: “ to f i n d so m e b rief i n v estig ativ e lead s in th e

cu rren t case” an d “ to see if th ere[] [w as] ev id en ce o f o th er th in g s co m in g

acro ss th e b o rd er.” B eca u se th e ag en t s ack n ow led g ed th at t

h ey s o u g h t

ev id en ce to u se ag ain st Can o i n b u ild i n g a crim in al case, Can o arg u es th at th e co u rt sh o u ld treat th e search as o n e c o n du cted f o r “ g en eral law

en f o rcem en t p u

rp o ses” rath er th an

a b o rd er search

.

Can o ’ s f o cu s o n t h e o f f icials’ su b j ectiv e m o tiv atio n s is m i s p laced

, h o w ev er. A s th e d istrict co u rt reco g n i zed

, “ co u rts h av e rep eated ly h eld th at th e Fo u rth A m en d m en t’ s reaso n ab len ess an aly sis is ‘ pred o m in an tly

an o b j ectiv e in q u iry .’ ” See W h r en v. Un it e d S ta tes , 5 1 7 U.S. 80 6
, 8 1 3 ( 1 9 9 6 ) (u p h old in g a “ p retex tu al” sto p b ecau se “ [s]u b j ectiv e in ten tio n s p lay n o r o l e i n ord in ary

. . . Fo u rth A m en d m en t an aly s is”). W e h av e

u p h eld b o rd er search es o f p erso n s s eek in g en try ev en w h en th o se search es

w ere co n d u cted “ at t

h e b eh est” of DEA ag en ts seek in g crim in al ev id en ce. S ee Un ited Sta tes v. S c h o o r , 5 97 F.2 d 13 03
, 1 3 0 5 –0 6 (9 t h Cir. 19 7 9) (h o ld i n g a b o rd er search reaso n ab le w h ere it w as co n d u cted “ at th e b eh est” of DEA ag en ts an d i n clu d ed a search f o r certain item s o f ev id en ce in ad d itio n to a search f

o r co n trab an d). T h u s, th e m ere f act th at O f

f icers P eto n ak an d Med ran o su b j ectiv ely h o p ed to f

in d “ in v estig ativ e le a d s ”
p ertain in g to th e seized sh ip m en t o f co cain e d o es n o t ren d er t h eir search es

o f Can o’ s p h o n e b ey o n d th e b o rd er search ex cep tio n

.U N I T E D S T A T E S V

. C A

N O 24

This is a close question, but we think Cano has the better of the arg um e n t

. There is a difference between a search for contraband and a search f or evidence of bor d e r

- r elated crimes, althoug h the d ist inction may not be apparent. Cotterman helps us focus on the d ifference. There, b order officials had been alerted that Cotterman had a criminal record of sex abuse of minors and mig h t be involved in “child

sex tourism.” Cotterman
, 7 0 9 F. 3 d at 957. The officials seiz ed hi s l a p t op and subjected it to searches for child
p o r nog raphy

, which they found. I n Cotterman
, the ch i l d
pornog raphy was contraband subject to seiz u re at the border. As contraband, the child pornog raphy is also evidence o f various c rimes, including p ossession of child p o rnog raphy

, 18 U.S.C. § 2 252A(a)(5)(B ), and importation o f obscene material, 18 U.S.C. § 1462( a )

. B ut n othing in Cotterman

au t h o r iz ed border officials to conduct a search for evidence that Cotterman was involved in sex -related crimes g enerally

.

Bo rder officials are authoriz e d to seiz e “ merchandise which

. . . shall have been introduced into the U nited States in any manner contrary to law.” 19 U.S.C. § 482( a ) (emphasis a d d e d ). The photos on Cotterman’s laptop computer were such merchandise. 18 U.S.C. § 2252(a). B ut border officials have no g eneral authority to search for crime. This is true even if there is a possibility that such c rimes may be perpetrated at the border in the f uture. So, for ex ample, if U.S. officials reasonably s u s p e c t that a person who has presented himself at the border m a y b e eng ag e d in price fix ing

, see 15 U.S.C. § 1
, th e y may not conduct a forensic search of h is phone or laptop. Evidence of price fix ing

— tex ts or emails, for ex ample—is not itself contraband whose importation i s p r ohibited by law. Such emails may be evidence of a crime, but they are not contraband, and there is

no law prohibiting the importation of mere evidence of crime.U N I T E D S T A T E S V

. C A

N O 25

W e r ecog niz e that our analy sis is in tension with t he F ourth Circuit’s decision in Kolsuz . Kolsuz was detained at W a shing ton D ulles I nternational Airport when customs age n ts discovered firearm parts in his lug g ag e. Kolsuz

, 890 F .3d a t 138–39. Kolsuz was arrested and his cell phone seiz ed. Id. at 139. The a g ents subjected the p hone to a month-long forensic search, p roducing a 896-pag e r eport. Id

. Kolsuz c halleng ed the search, which the district court upheld and the F ourt h C i r cuit affirmed. Id. a t 139–42. The court approved the forensic search b e c ause the ag ents had “reason to believe

. . . that Kolsuz was attempting to ex port firearms illeg al l y ” and that “their search w ould reveal not only

e v i d ence of the ex p ort v iolation they already had detected, but also ‘information r elated to other o ng oi n g a ttempts to

ex p ort illeg ally various firearm p art s

. ’ ” I d. at 143 (quoting the district c ourt; citation omitted). According to the F ourth Circuit, “[ t] h e justification b eh i n d the border search

ex c e ption is broad enoug h to accommodate not o n l y t he direct interception o f contraband as it c r osses the border, but also the p revention and disruption of ongo i n g efforts to export contraband illegally .” Id. (emphasis added). 1 0

W e ag ree with much of the F ourth Circuit’s d iscussion o f foundational principles, but w e respectfully disag ree with the final step approving the search for further evidence that

10 A s su p po rt f o r t h is p ro p o s itio n , t

h e Fo u rth Circu it cited tw o d istrict

co u rt cases o rig i n atin g w ith in o u r circu it. B o th o f th o se cases ad d ressed f act- p attern s alm o st id en t ical to Can o’ s, an d in each case th e d istrict co u rt h eld th at th e b o rd er- search ex cep t io n w as n o t lim ited t o s e arch in g f or

co n trab an d d irectly

. S

ee Un ited S t

a t es v. Men d

ez , 2 4 0 F. Su

p p

. 3 d 1 0 0 5
, 1 0 0 7

– 0 8 (D. A

riz. 2 0 17 ); Un ited S ta tes v. Ra mo s , 1 9 0 F. Su p p

. 3 d 9 9 2
, 9 9 9 (S.D. C al. 2 0 1 6 ). In n eith er case w as th e issu e ap p ealed to ou r circu it. T h u s, C an o ’ s case p r e s en ts th e f irst o p po rtu n ity f

or u s to co n sid er th e

m atter.U N I T E D S T A T E S V

. C A

N O 26

Kolsuz was smug g ling weapons. Our disag r eement focuses precise l y on the critical question that we previously identified: Does the proper scope of a border search include the power to search for evidence of contraband that is not present at the border? Or, put differently

, can border ag ents conduct a warrantless search for evidence of past or future bor d e r-related crimes? We think that the answer must be “no.” Th e “[ d ] e tection of

. . . contraband is the strong e st hi s t o ric rationale for the border-search ex ception.” MolinaIsidoro

, 8 8 4 F.3d at 2 95 (Costa, J
., specially concurring ). I n deed, “every border-search case the Supreme Court has decided involved searches to lo c ate items being smuggled ” rather than evidence. Id. (emphasis added); see Montoya de Hernandez

, 473 U .S. at 537 ( the border search is “ to prevent the introduction of c ontraband into this co u n try ”); United States v. 12 200-Foot Reels of Super 8 m m. Film

, 413 U.S. 123, 125 (1973) (border searches are “nec e s s a ry to prevent smug g ling and to p revent prohibited articles from entry ”); United States v. Thirty-Seven Photographs

, 402 U

. S

. 3 63, 376 (1971) (“Customs officers characteristically inspect lug g ag e and their power to do so is n ot questioned in this case; it is an old practice a

nd is intimately associated with e x c l uding illeg al a rticles from the country ”). I n f act, the Court has long “draw[ n] a sharp distinction between searches for contraband and those for evidence that may reveal the i m p o r t at ion o f contraband.” Molina-Isidoro

, 884 F .3d at 296 ( C osta, J
., specially concurring ). The classic statement o n the distinction between seiz ing g oods at the border b ecause their importation is prohibited and seiz ing g oods at the border because they may be useful in prosecuting crimes is found in Boyd v. United States :

I s a search and seiz ure, o r , what is equivalent thereto, a compulsory p roduction of a man’sU N I T E D S T A T E S V

. C A

N O 27

private papers, to be used in e v idence ag ainst him in a proceeding to forfeit his property for alleg ed fraud a g ainst the r evenue laws—is such a proceeding for such a purpose an

“ unreasonable search and seiz ure” within the

me aning of the fourth amendment of the constitution?

. . . . The search for and seiz ure of stolen or forfeited g oods, or g o ods liable to duties and conceal e d to avoid the pay ment thereof, are totally d ifferent thing s from a

se a r c h for and seiz ure of a man’s private books and papers for the p urpose of obtaining information therein contained, or of usin g them as evidence ag ainst him. The two thing s differ toto coelo

.

116 U.S. 616, 622–23 (1886), ove r ruled in part on other grounds by W

arden, Md. Penitentiary v

. H a y den , 3 87 U.S. 294 ( 1967); see also id. at 6 33 (stating that compelling a man to p roduce the evidence ag ainst himself not only violates the F ifth Amendment, but makes the seiz ure of his “ books a nd papers” unreasonable under the F o urth Amendment).

Althoug h we continue to acknowledg e that “[ t] he Government’s interest in preventing the entr y o f unwanted
persons a nd effects is at its z e nith a t the international border” and that “the ex pectation of privacy is less at the border than it is in the interior,” F

lores-Montano

, 541 U.S. a t 1 5 2
, 154,

w e hold that the border search ex ception authoriz es warrantless sear c h e s o f a c e ll p hone only to determine whether the phone c o ntains contraband. A broader search
cannot b e “justified b y the particular purposes served by the

ex c e ption.” Florida v. Royer , 460 U.S. 491, 500 (1983).U N I T E D S T A T E S V

. C A

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2. The I mpact of a L imited Scope for B order Searches

Our conclusion that the border search ex c eption is restricted in scope to searches f or contraband implicates two practical limitations o n warra n t l e s s border searches. F irst, border officials are limited to searching for contraband only ; they may not search in a manner untethered to the search for contraband. The Supreme Court has repeatedly emphasiz ed th a t “ [ t ] h e scope of the search must be ‘strictly tied to a nd justified by ’ the circumstances which rendered its initi a t ion permissible.” Terry v. Ohio

, 392 U.S. 1, 19 (1968).

The v alidity of the manual searches c onducted by Ag ents Petonak and Medrano at their ince p t i o n is bey o nd dispute. Manual searches of a c e l l phone a t the border can be conducted without a

ny suspicion whatsoever, see Cotterman
, 709 F .3d at 960, a

n d both ag ents wer e officers of H SI a nd thus had authority to conduct border searches, S oto-Soto
, 598 F .2d at 548–49. As the Supreme Court e x plained in Terry
, however, “ a search which is reasonable a t its inception may violate the F ourth Amendment by virtue o f i t s intolerable intensity and scope.” 392 U.S. at 18.

Once Cano was arrested, Ag ent Petonak briefly searched Cano’s phone and o bserved that there were no tex t messag es. The observation that the phone contained no tex t messag e s falls comfortably within the sc o p e o f a search for dig ital contraband. Child pornog raphy may be s ent v ia tex t messag e, so the o f

f i c ers acted within the scope of a permissible border search in accessing the p h o n e’s tex t messag es.

Ag ent Medrano conducted a second manual search of the phone log a

nd tex t messag es on Cano’s phone. M ed rano,U N I T E D S T A T E S V

. C A

N O 29

however, did more than thumb throug h the phone consistent with a s earch for contraband. He also r ecorded phone numbers found in the call log

, and he photo gr a p hed two messag es received after Cano had reached the b order. Those actions have no connection whatsoever to dig ital contraband. Criminals may hide contra b a n d in unex pected places, so it

was reasonable for the two HSI officers to open the phone’s call log to verify that the l o g c ontained a list of phone numbers a n d n o t surreptitious imag e s or videos. B ut the border searc h e x c eption does not justify Ag ent Medrano’s recording of the phone numbers and tex t messag es for f urther processing

, b ecause that a c tion has no c onnection to ensuring that the phone lacks dig ital contra b a nd. According ly

, to the

ex tent that Ag ent Medrano’s search o f Cano’s phone went bey ond a verification that the p hone lacked dig ital contraband, the search ex ceeded the proper scope of a border search and w as unreasonable as a b o r d e r search under the F ourth Amendment. 1 1

11 T h e f act o f Can o’ s arrest d o es n o t af f ect o u r an aly sis. T h e bo rd er search d o e s n o t lo se its id en tity as su ch o n ce C an o w as arrested

. T h e Un i ted States retain s a s tro n g in terest in p rev en tin g co n t rab an d f ro m

en terin g th e Un ited St a t e s , w h eth er it is b ro u g h t i n i n ad v erten t ly

, sm u g g led

, o r ad m itted in to th e U n ited States o n ce its o w n er is arrested

. S ee Un ited S ta tes v. Ickes

, 3 9 3 F .3 d 5 0 1
, 5 0 3

– 0 5 (4 th Cir. 2 0 0 5 ) (u p h o ld in g t

h e po st- arrest search o f a lap to p co m p u ter at th e b o rd er w

h ere th e o f fi c ials h ad reaso n t o su s p ect th e co m p u ter carried ch ild
p o rn o g rap h y ); see a lso Un ited S ta tes v. Ba tes , 5 2 6 F.2 d 9 6 6
, 9 6 7

– 6 8 (5 th Cir. 1 9 7 6 ) (p er cu riam ) (u p h o ld in g a search o f th e d ef en d an t’ s v eh i cle af ter h e h ad been arre st ed at th e b o rd er f o r v io latin g h is b on d in

co n n ectio n w ith a p rev io u s d ru g crim e u n d er bo th th e search i n c i d en t to arrest a n d th e b ord er search ex cep tio n ).

T h e g o v ern m en t h as n o t arg u e d t ha t t h e f oren sic s earch o f Can o ’ s p h o n e can b e j u st i fi e d as a search in cid en t to law f u l arrest. Su ch an arg u m en t is f

o reclo sed b y Riley. S

ee Riley

, 5 7 3 U.S. at 3 8 8 –9 1

. No r h asU N I T E D S T A T E S V

. C A

N O 30

Second, b ecause the border search ex ception is limited in
scope to searches f

or contraband, bo r d e r officials may conduct a f

orensic c e l l phone search only when they reasonably suspect that the c e l l phone c ontains contraband. W e have held that a “hig hly intrusive” search—such as a forensic cell phone search—requires some level o f particulariz ed suspicion. Cotterman
, 709 F .3d at 9 63, 968; see Flores-Montano

, 541 U.S. at 152. B ut that just beg s the question: Particulariz ed suspicion of what? Contraband? Or evidence of future border-related crimes? Having concluded above that border searches are limited in scope to searches for contraband and do not encompass searches for evidence o f past or future border-related crimes, we think the answer here is clear: to conduct a more intrusive, foren s i c c ell phone search border o fficia ls must reasonably suspect that the c ell phone to be searched itself contains contraband.

W e re we to rule otherwise, the g overnment could conduct

a full forensic search of every e lectronic d e v ice of any o ne arrested at the border, for the p robab le cause required to justify an arrest at the border will alway s s atisfy the lesser reasonable suspicion standard needed to justify a forensic search. As the Court pointed out in Riley

, modern c ell phones are “minicomputers” with “immense storag e capacity .” 573 U.S. at 393. Such phones “carry a c a che of sensitive personal information”—“[ t] he sum of an individual’s p rivate life”— such that a search of a cell ph o n e m a y g ive the g overnment

th e g o v ern m en t arg u ed th at o n ce Med ran o saw t h e p h o n e n

u m b ers in th e call lo g an d th e tex t m essag es th at h e co u ld reco rd th em co n sisten t w i th th e p l ain v iew ex cep tio n

. S ee Un ited Sta tes v

. C

o mp reh en sive Dru g Testin g , 6 2 1 F.3 d 1 1 6 2
, 11 7 5

– 7 7 (9 th Cir. 2 0 10 ) (en b an c) (p er cu riam ),

o verru l ed in p a r t o n o th er g r o u n d s a s reco g n ized by Dema r ee v. Ped erso n , 8 8 7 F.3 d 8 7 0 , 8 7 6 (9 th Cir. 2 0 1 8 ) (p er cu riam ).U N I T E D S T A T E S V

. C A

N O 31

n o t only “sensitive records previously f ound in the home, ” b u t a “broad a

rray of p rivate information never found in a home in any form—unless the phone is.” Id. a t 3 9 3 –97. W e re we to g ive the g overnment unfettered access t o c e l l phones, we would enable the g overnment to eva d e the protections laid out in Riley “ o n the mere basis tha t [ the searches] occurred a t the border.” S oto-Soto
, 598 F .2d at 549.

Moreover, in case s such a s this, where the individual suspected o f committing the border-related crime has already been arrested, there is no reason why border officials cannot obtain a w arrant b efore conducting their forensic search. This “is particularly true in lig ht o f ‘advances’ in technolog y that

now permit ‘ t h e more ex peditious processing o f warrant applications.’” Birchfield v. North Dakota

, 136 S. Ct. 2160, 2192 (2016) (quoting Missouri v. McNeely

, 569 U.S. 141, 154 (2013)); see Riley

, 573 U.S. at 401. I ndeed, in most cases the time required to obtain a warrant w ould seem trivial compared to the hours, day s, and weeks needed to complete

a forensic electronic search. See
, e.g. , W anjiku

, 919 F.3d at 477 ( noting that a forensic “preview” takes o n e t o three hours; the full ex amination “coul d t a k e months”); Kolsuz

, 890 F .3d at 139 (describing

how the forensic search “lasted for a full month, a

nd y ielded an 8 96-pag e report”); Cotterman
, 709 F .3d at 9 59 ( describing how the first forens i c s earch was conducted o ver five day s; a dditional evidence was f ound “[ o] ver the nex t few months”). W e therefore conclude that border officials may conduct a forensic cell ph one search only when th e y r easonably suspect that the c ell phone to be searched itself contains contraband.

Applied h ere, if the Cellebrite search of Cano’s cell phone qualifies as a forens i c search, the entire search wasU N I T E D S T A T E S V

. C A

N O 32

unreasonable under the F ourth A mendment. 1 2 Althoug h Ag ents P e t o n ak and Medrano had reason to suspect that Cano’s phone would con tain evidence leading to additional drug s, the r ecord does n o t g ive rise to any objectively reasonable suspicion that t h e dig ital data in the phone contained contraband. 1 3 Absent reasonable suspicion, the border search ex ception did not a utho r i z e t he a g ents to conduct a warrantless f

orensic search of Cano’s phone, a nd evidence obtained t h ro ug h a f orensic search should be suppressed.

C. Good Faith Exception

W e nex t consider whether the evidence uncovered by the searches is n evertheless allowed by the g ood faith ex ception. Having held that the manual searches partially viol a ted the F ourth Amendment and h a v ing held t h a t , if the Cellebrite

1 2 W h eth er th e Celleb rite search co n stitu tes a f o ren s ic s e a r c h i s d isp u ted

. B ecau se th e d istrict co u rt p assed o n t h e issu e w ith ou t d ecid in g it, b ecau se n eith er p arty h as brief ed th e q u estio n to u s, an d b ecau s e w e are

v acati n g D e fe n d an t’ s co n v ictio n , w e d eclin e to reach th e m erits o f th e p arties’ d isp u

t e. S ee AS S E In t’l, In c. v. Kerry
, 8 0 3 F.3 d 1 0 59
, 1 0 79 (9 th Cir. 2 0 1 5 ).

13 In d eed

, th e d etectio n

- o f

- co n trab an d j u stif

icatio n w o u l d r a

r ely seem to ap p ly to an electro n ic search o f a cell p h o n e o u tsid e th e co n tex t o f ch ild
p o r n o g rap h y

. T h e co u rts o f ap p eals h av e j u st b eg u n to co n f ro n t th e d if f icu lt q u estio n s atten d in g cell p h o n e search es at th e b o rd er. Mo st o f th e

cases h av e in v o lv ed ch ild p orn o g rap h y

. S ee , e.g

. , W

a n jiku

, 9 1 9 F.3 d 4 72 ; To u set , 8 9 0 F.3 d 1 2 2 7 ; Mo lin a-Isid o r o , 8 8 4 F.3 d 2 8 7 ; Verg ara , 8 8 4 F.3 d 1 3 0 9 ; Co tterma n , 7 0 9 F.3 d 9 5 2

. A m o n g th e co u rts o f a p p e a ls, o n l y th e Fo u rth Circu it h as ad d ressed t h e q u estio n ou tsid e th e co n tex t of
p o rn o g rap h y

. Ko lsu z , 8 9 0 F.3 d 1 33 (ex p o r t a tio n o f f irearm s p arts); see

a lso Un ited

S ta tes v. Kim
, 1 0 3 F. Su

p p

. 3 d 3 2 (D.D.C. 2 0 1 5 ) (ex p o rts in

v io latio n o f Iran ian trad e em b arg o ); Un ited S ta tes v. S a bo on ch i
, 9 9 0 F. Su p p . 2 d 5 3 6 (D. Md . 2 0 1 4 ) (sam e).U N I T E D S T A T E S V

. C A

N O 33

search of Cano’s phone was a forensic search, it violated the F ourth Amendment, we must determine w h ether the appropriate remed y i s suppression o f the evidence. The

ex c lusionary r

ule is “a ‘prudential’ d o c t r i ne”; it is “‘not a personal constitutional rig h t,’ nor is it desig n ed to ‘redress the injury ’ o ccasioned by an u n constitutional search.” Da vis v

. United States
, 564 U.S. 22 9, 2 36 (2011) (quoting Stone v

. Powell

, 4 2 8 U.S. 465, 486 (1976)). B ecause “ [ e] x clusion

ex a c ts a heavy toll on both the judicial sy stem and society at larg e ,” we invoke the rule when we are confident that it will “deter future F ourth A mendment violations.” Id

. a t 236–37. The ex clusionary r

ule does not deter such viol a tions “when the p olice conduct a search in objectively reasonable reliance

on binding judicial p recedent.” Id. a t 239. W e have said that the g ood faith ex cepti o n a p p lies only to searches where “binding appellate p recedent

. . . ‘specifically authoriz es’ the police’s search.” United States v. Lara
, 815 F

. 3 d 6 0 5, 613 ( 9 t h Cir. 2016) ( quoting Davis
, 564 U.S. at 232). I t i s n o t sufficient for the question to be “unclear” or f o r the
g overnment’s position to be “plausibly

. . . permissible.” Id.
at 6 13–14. At the same time, the “precedent [ does n ot have]
to constitute a factual match wit h t h e c ircumstances of the search in question for the go o d -faith ex ception to apply ” so

as not to “ make the g o od-faith ex ception a nullity

. ” United States v. Lustig , 830 F

. 3d 1075, 1082 (9th Cir. 2016).

The g overnment point s t o C otterman as support for the
g ood faith of the officials. W e f ail to see how border officials

c o u ld believe that Cotterman was “binding appellate precedent” authoriz ing their search. Althoug h we have conclu d ed that Cotterman is still g ood law after R iley

, the officials could not rely o n C o t terman to justify a search for evidence ; Cotterman was a s ea r ch for contraband that the
g overnment has a rig h t to seiz e at the border. Here, theU N I T E D S T A T E S V

. C A

N O 34

officials’ search w a s objectively tied only to proving their

case ag ainst Cano and finding evidence of future crimes. Searching for evidence and searching for contraband are not the same thing

.

W e understand that border o fficials mig ht have thoug ht that their actions were re a s o n a b le, a nd we recog n iz e that border officials have to make in-the-moment decisions about how to conduct their business—w h e ther or not they have written g uidance from the courts. B ut as we understand the Davis rule, the g ood faith ex ception to the ex clusionary rule applies o n ly w hen the officials have relied on “ binding appellate p recedent.” See Lara
, 815 F .3d at 6 13; see also W anjiku

, 919 F .3d at 485–86 (finding that a g ents h ad reasonable suspicion to search the defendan t ’ s cell phone, laptop, and portable hard d r ive for child pornog raphy ; holding that, if probable cause was required, the officials acted in g o od faith). This is a rapidly d eveloping area, not an

area of settled law. Even if our decision i n Cotterman

r e n d e r e d the searches “plausibly

. . . permissible,” it did not “specifically a

uthoriz e” the c ell phone searches at issue h ere. Lara
, 815 F .3d at 613–14.

* * *

I n sum, the manual searches and the Cellebrite search of C a n o’s c ell p hone ex ceeded the scope of a valid b o r d e r search. B ecause the g ood f aith ex ception does not apply

, most of the evidence obtained from the searches o f Cano’s cell phone should have been suppressed. W e thus reverse the district c ourt’s order deny ing Cano’s motion to suppress, a nd

we vacate Cano’s conviction. O n any retrial, the district court

s hould determine whether any additional evidence fro m t h e warrantless se a rc hes of Cano’s cell phone should beU N I T E D S T A T E S V

. C A

N O 35

suppressed, either because the Cellebrite search q u alifies a s

a forensic search, wh i c h the g overnment lacked reasonable suspicion to conduct, o r b ecause the evidence ex ceeds the proper scope of a border search.

I I I . DI SCOVERY I SSUES

Cano has also alleg ed th a t t h e g overnment violated his rig ht s u n d er both Brady and F ederal Rule of Criminal Procedure 16 when it failed to t u r n o ver certain information that Cano requested from the F B I a n d D E A

. W e address Cano’s discovery claims, as the issues may be relevant on any retrial.

Under B rady

, the prosecution has an oblig ation, imposed by the Due Process Clause, to produce “evidence favorable to

a n a c cused upon request

. . . where the evidence is mater i al either to g uilt or to punishment.” 373 U.S. at 87.

“ [ E ] v i d ence is material only if there is a reasonable probability that, had the evidence been di sclosed to the defense, the r esult o f t he proceeding would have been di f f erent.” United States v

. Bagley

, 473 U.S. 667, 682 (1985). 1 4

Under Rule 16, the g overnment must, upon request, turn

over any documents “wi t h i n the g overnment’s possession, custody

, or control” that are “material to p reparing the defense.” F ed. R. Crim. P. 16 ( a ) ( 1)(E)(i). The defendant “must make a thre s h old showing of materiality

, which requires a presentation of facts which would tend to show that the Government is in possession of information helpful to the

14 We rev iew d e n o v o w h eth er a Bra d

y v io latio n h a s o ccu

rred

. Un ited S ta tes v. S tever , 6 0 3 F.3 d 7 4 7 , 7 5 2 (9 t h Cir. 2 0 1 0 ).U N I T E D S T A T E S V

. C A

N O 36

defense.” United States v. Muniz-Jaquez
, 7 18 F .3d 1180, 1183–84 (9th Cir. 2013) ( quoting United States v. Stever
, 603 F .3d 747, 752 (9th Cir. 2010)). B e cause “[ i] nformation that is not ex c ulpatory or i m p e a c hing may still be relevant to developing a possible defense,” Rule 16 is “broader than Brady .” Id. at 1183. 1 5

Under both Brady and Rule 16, the g overnment “ h a s no oblig ation to p r o duce information which it does not possess

or of which it is unaware.” Sanchez v

. United States
, 50 F .3d 1448, 1453 (9th Cir. 1995). I t has an oblig ation to turn over only material, ex c ulpatory or o therwise helpful to the defense, that it has in its poss es s i o n

. 1 6 “Possession” is not limited to what the prosecutor personally kn o w s

. Browning v. Baker

, 8 7 5 F.3d 444, 460 (9th Cir. 2017), cert. denied

, 138 S

. C t

. 2608 (2018); United S

tates v. Br

y a n , 868 F .2d 1032, 1036 (9th Cir. 1 9 89). B ecause prosecu tors are in a “unique position to obtain information known to other ag ents of the
g overnment,” they have an oblig a tion to “ d i s c los[ e] what [ they ] do[ ] not know but could have learned.” Carriger v

. Stewart
, 132 F .3d 4 6 3, 4 80 (9th Cir. 1 997) (en banc); see also Kyles v. W

hitley

, 514 U.S. 419, 4 37 ( 1 9 9 5 ) ( describing h ow

15 A lth ou g h d isco v ery ru lin g s are g en erally rev iew ed f o r ab u se of d iscretio n , Stever
, 6 0 3 F.3 d at 7 5 2
, w e rev iew a d istrict co u rt’ s in terp retatio n o f th e d isco v er y ru l es d e n o v o , Un ited S ta tes v. Ced a n oArella n o , 3 3 2 F.3 d 5 6 8 , 5 7 0

– 7 1 (9 th Cir. 2 0 0 3 ).

16 T h e “ p o ssessio n ” elem en t of Bra d y is treated as co ex ten s iv e w i th th at o f Ru le 1 6

. S

ee , e.g

. , U

n ited S ta tes v. Brya n , 8 6 8 F.2 d 1 0 32
, 1 0 3 7 (9 th Cir. 1 98 9 ) (u sin g th e sam e “ k n o w led g e an d access” test to d eterm in e

“ po ssessio n ” f

o r b o th Ru le 1 6 an d Bra d

y ); U n ited S ta tes v. Gra ce , 4 0 1 F. Su p p

. 2 d 1 0 6 9
, 1 0 7 6 (D. Mo n t. 2 0 0 5 ) (“ W h eth er ex cu lp ato ry in f o rm atio n is in th e g o v ern m en t’ s po ssessio n f o r Bra d y p u rp o ses is m easu red b y th e

sam e . . . test u sed u n d er Ru le 1 6 (a)(1 )(E) f o r d isco v ery .”).U N I T E D S T A T E S V

. C A

N O 37

the “individual prosecutor has a duty to learn of any favorable evidence known to [ those] acting o n the g overnment’s behalf”); Y

oungblood v. W

est Virginia
, 547 U.S. 867, 869–70 (2006) (per c uriam). T h is includes information held b y subordinates such as investig ating police officers, see Kyles

, 514 U.S. at 4 38; United S

tates v. Price
, 566 F .3d 900, 908–09 (9th Cir. 2009), and sometimes ex tends to informati o n h eld by oth e r ex ecutive branch ag encies, see United States v

. Santiago
, 4 6 F .3d 885, 8 9 3 (9th Cir. 1995); U nited States v

. Jennings , 960 F .2d 1488, 1490–91 (9th Cir. 1992).

Documents held by

another ex ecutive branch ag ency are deemed to b e “in the possession o f t h e g overnment” if the prosecutor has “knowledg e of and access to” the documents. Bryan
, 868 F .2d at 1 036. K n o wledg e and access a re presumed if the ag e n cy participates in the investig ation of the defendant. Id. (“The prosecutor w i l l b e deemed to have knowledg e of and a ccess to any thing in t h e p ossession, custody or control of a

ny federal ag ency participating in the same investig ation of the defendant.”). However, “a federal prosecutor need not c o mb the files of e v ery federal ag ency which mig h t have documents reg ard ing the defendant in order
to f ulfill his or her oblig ations under [ Rule 16] .” Id. ; see also Kyles

, 514 U.S

. a t 437 (“W e have n ever held that the Constitution demands an open file policy . . . .”).

Here, Cano asserted a third-party defense theory : h e was stay ing in Tijuana with his cousin, J ose Medina; Medina was

a member of the L atin King s g a ng w hich was involved in the drug trade; a

nd Medina had access to Cano’s car before Cano

was stopped at the b order. Cano requested that the U.S. A t torney ’s Office turn o ver any material held by HS I
, t h e F B I
, and the DEA relating to: (1) rec o rds linking his c ousin J ose Medin a t o drug sales, distribution, and trafficking ; a ndU N I T E D S T A T E S V

. C A

N O 38

(2) documentation showing a link between t h e L atin King s and drug trafficking throug h the United States-Mex ico b o rder. The district court found that both requests mi gh t produce evidence that w as ex culpatory under Brady a nd material under Rule 16, b ut limited Cano’s d iscovery to only materia l held by H SI

. T he court c oncluded that the prosecutor did not have access to evidence held by t h e FB I and DEA, and thus had no o blig ati o n t o provide such evidence, because both ag encies had “r e b uffed” the prosecutor’s attempts to obtain i n f o rmation. Thus, the only issue raised on appeal is whether any material h e l d by the DEA and F B I should b e deemed “within the g ov e rnment’s possession.”

W e find n o evidence that the prosecution had knowledg e

or possession of evidence showing that Med i na or the L atin King s were involved in drug traff i c k i n g at the Mex icoCalifornia border. Medina had o ne drug -relat e d conviction, and it was for simple possession of cocaine, not traff i c k i n g

. B efore trial, however, the prosecution t e a m r eached out to Medina and pr o mised him immunity and immig r ation documents in ex chang e for co o p e ration and information concerning drug importation. Althoug h Medina orig i nally rebuffed the g overnment, he eventually o ffered to work with the g overnment and “stated that he would be able to assist the Government with the

. . . big g es t RI CO

. . . case a nd d rug seiz ures of 20 to 25 kilog rams at a time.” The distr i c t court found that Medina’s statements “ spawn[ ed] an inference that [ he] is closely connected to the d r u g-traffickers in Tijuana.” B ased on this inference, Cano arg ues that the g overnment h ad suf ficient knowledg e of a p ossible connection b etween Medina and d

rug trafficking to trig g er the g overnmen t’s discovery oblig ations.U N I T E D S T A T E S V

. C A

N O 39

Cano’s arg ument, however, misstates the test w e f irst set out in Bryan

. Cano h as arg u ed o nl y that the prosecutor h ad knowledg e that certain facts mig ht ex ist. However, we have said that the prosecutor’s disclosure oblig ations turn on “the

ex tent to which the prosecutor h a s knowledg e of and a c c e s s to the d ocuments soug h t by the defendant.” Bryan
, 868 F .2d at 1036 (emphasis added); see also Santiago
, 46 F .3d a t 894 (analy z ing whether the p rosecutor had knowledg e o f a nd access to certain inmate f iles). W e have required disclosure only of documents that the prosecutor knew ex isted. Bryan
, 868 F .2d at 1034–37.

Here, althoug h Cano has presented evidence alleg ing a plausible connection between Medi na and drug trafficking

, Cano has failed to a dd u c e a ny evidence showing that prosecutors or investig ators knew that the F B I or the DEA possessed documents showing that connecti o n

. I n fact, the record established the opposite. O ne of the H S I a g ents ran Medina’s name throug h t w o different law enforcement clearing h ouses

— i n which the F B I and DEA both participate—and neither search returned any hits.

Moreover, the prosecu t o r d i d not have access to F B I o r DEA files a

n d t h u s w as u nder no oblig ation to “comb the f i l es ” of the F B I a

nd DEA for documents relating t o Medina. 1 7 W e have o ccasionally presumed that a p rosecutor

1 7 Can o so u g h t to in t

ro d u ce a 2 01 5 rep o rt f

ro m th e FB I’ s N a t i o n a l Gan g In t ellig en ce Cen ter listin g th e L atin Kin g s a s o n e o f t h e to p g an g s in v o lv ed in cro ss b o rd er crim e, an d in clu d in g d ru g im po rtatio n in its list

o f cro ss- b o r d e r crim es. (T h e ev id en ce w as n o t u ltim ately p resen ted at trial.) C an o also p ro f

f ered in f o rm atio n co n cern in g tw o g o v ern m en t in f o rm an ts w o rk in g w ith i n th e L atin Kin g s. A lth o u g h th ese rep o rts m ay

su g g est th at th e FB I m ay h av e h ad f u rth er i n f o r m atio n reg ard in g a

co n n ectio n

b etw een th e L atin Kin g s an d d ru g im p o rtatio n , Can o h as n o tU N I T E D S T A T E S V

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has access to an ag ency ’s files where the prosecutor actually obtained inculpatory information from the ag ency , e ven if the
ag ency was not involved in the investig ation or prosecution. See Santiago
, 46 F .3d a t 894 (concluding that the p rosecutor had access to other inmates’ prison files w here the p rosecutor

was able to obtain the defendant’s prison file from the B ureau of Prisons). Here, however, the U.S. Attorney ’s Office advised the district court that it did not obtain any evidence— inculpatory or ex culpatory —from the F B I or the DEA. F ollowing the district court’s initial discovery order, H S I ’s
ag ent—Ag ent Petonak—made a formal request to t h e leg al counsel for the F B I and the DEA for a n y “materials r e lated to the L atin K ing s importing cocaine from Mex ico to the United States,” but both ag e ncies “declined to prov i d e [ him] with
any such information.” Neither ag ency revealed w hether any such information ex isted or provided a reason for its refusal. The U.S. Attorney ’s Office also reached o u t t o the F B I a nd the DEA for L atin K ing s-related discovery

. That request was also denied.

Cano arg ues that the F B I and DEA’s refusal to turn over inform a t i o n in this particular case should not be determinative and that the test for ac c ess under Bryan a nd Santiago requires only that the U .S. Attorn ey ’s Office o r investig ating ag ency g enerally ha v e access to this ty pe o f information. Cano points to evidence from both prosecution and defense witnesses that HSI reg ularly works with the F B I and the DEA; that “interag ency coopera t i o n has been emphasiz ed” after September 11, 2001; that ag ents from the different ag encies r eg ularly access inform ation f or o ne another; that a D E A r e presentative worked in Ag ent Petonak’s office; and t h a t ag ents a re often cross-listed

estab lish ed th at th e p ro secu to r h ad access to th e FB I’ s o r th e DEA ’ s f iles.U N I T E D S T A T E S V

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between ag encies. F r om this, Cano arg ues that HSI g enerally has access to F B I a

nd D E A f

i les for inculpatory purposes, and thus a sserts that the refusal of the F B I and DEA to provide information in this particular c ase should not r elieve HSI of its d iscovery oblig ations. To rule otherwise, C ano contends, would allow these withholding ag encies “to effectively w all off ex culpatory information from the
g overnment in a p a

r ticular defendant’s case, all t h e while providing the g overnment free-flowing access to information in its overall investig ations.”

A lthoug h we a

re sy mpathetic to Cano’s concer n s reg arding strateg ic withholding

, the rule Can o urg es us to adopt is much too broad. Brady and Rule 16 oblig ations a re

case specific. I n B r

yan we stated that the test for “possession” turns o n the pros ecutor’s “knowledg e of a nd

access to the documents soug ht b y the defendant in each

case ” and that “[ t] he prosecutor w ill b e d e emed to have knowledg e of and a ccess to any thing in the poss e s s i on, custody or control of a

ny federal ag ency partic ipating in the

s a m e investigation of the d efendant

. ” 868 F .2d at 1 0 3 6 (emphases added). Such a ca s e

- b y -case approach makes
sense, as the F B I and D E A may have valid concerns over revealing sensitive information in cases wholly unrelated to the ag encies’ own workload; the ag encies may be reluctant to cooperate in a partic u l a r investig ation if it means opening their files in other investig ations. I f Cano thinks that the F B I

or the DEA have o ther information, n ot known to the U.S. Attorney ’s Office or the investig ating officers, he may file a request under the F reedom of I nformation Act, subject to that Act’s own restrictions on releasing “records or information compiled f

or law enforcement purposes.” 5 U .S.C. § 552(b)(7). Brady a n d R u le 16 are not a means for a defendant to require the p rosecu t o r t o d o this work for him.U N I T E D S T A T E S V

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See generally Roth v. U

.S. D ep’t o

f J u s tice
, 642 F .3d 1161, 1 175–76 (D.C. Cir. 2011); Boyd v. Crim. Div. of U.S. Dep ’ t of Justice , 475 F .3d 381, 386–89 (D.C. Cir. 2007).

C a n o is unable to identify any case in which t h e prosecutor w as required to o b tain discovery from an a g e n cy wholly unrelated to the investig ation of the defendant in spite of that a g e n c y ’ s refusal to comply ; all of the cases cited b y Cano imposing a “duty to lea rn” on the prosecutor involve independent federal ag encies that had participated in the in v e stig ation of the defendant. S ee Price
, 5 66 F .3d at 9 0 8 –09; Carriger
, 132 F

. 3d at 479–80; United States v. Perdomo

, 9 29 F .2d 9 6 7, 971 (3d Cir. 1991); United States v

. Osorio
, 929 F .2d 753, 7 62 (1st Cir. 1991). I ndeed, the Third Circuit has h eld that a Brady oblig a tion is not trig g ered where the a g ency did not participate in the investig ation in any way , did not share any information with the prosecuting team, a nd where the p rosecutor had no authority o r c ontrol over the
ag ency ’s members. United States v. P el u l l o , 3 99 F .3d 197, 218 ( 3 d Cir. 2005); see also United Sta t e s v

. S alyer

, 271 F .R.D. 148, 1 56 (E.D. Cal. 2010) (concluding that “[ t] h e need for formal process in the acquisition of documents [ from another ag ency ] is the antithesis of ‘access’”). W e similarly

now hold that the prosecutor should not be held to have “access” to any information that a n ag ency not involved in the investigation o r prosecution of the case refuses to turn

over.

B e cause the HSI ag ents a n d p r osecutors in Cano’s case neither k new of n or had access to any a dditional f iles relating
to Medina and the L atin King s, we conclude that the
g overnment has satisfi ed its discovery oblig ations under Brady and Rule 16.U N I T E D S T A T E S V

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I V. CONCL USI O N

W e REVERSE the district c ourt’s order deny ing Cano’s motion to suppress and VACATE Cano’s conviction.