### In the 

# United States Court of Appeals

For the Seventh Circuit

No. 18-1973

U NITED S TATES OF A MERICA
, Plaintiff-Appellee

,

v.

D ONALD W ANJIKU
, Defendant-Appellant.

Appeal from the United Stat es District Court for the
Northern District of I llinois, Eastern Division.

No. 1:16-cr-00296-1 — Elaine E. Bucklo

, Judge.

A RGUED N OVEMBER 7, 2018

— D ECIDED M ARCH 19, 2019

Before R OVNER
, S YKES , and B ARRETT
, Circuit Judges

.
R OVNER
, Circuit Judge. Donald Wanjiku pled guilty to one count of transportation of child pornography in violation of 18 U.S.C. § 2252A, but he retained hi s right to appeal the district
court’s denial of his motion to suppress the primary evidence against him. That evidence included photographs and videos recovered from his cell phone, la ptop and external hard drive2 No. 18-1973

during a warrantless border search at O’Hare International Airport. We affirm.

I.
On June 9, 2015, Wanjiku arrived at O’Hare after a trip to the Philippines. Unbeknownst to Wanjiku, Customs and Border Patrol (“CBP”) and Homeland Security Investigations (“HSI”) were together conducting a criminal investigation dubbed “Operation Culprit” at the airport that day. Operation Culprit targeted certain individuals returning from three countries known to investigators for “sex tourism” and sex trafficking, including the sex trafficking of children. The investigators developed a list of initial criteria to identify individuals of interest to Operation Culprit: (1) U.S. citizen (2) men (3) between the ages ofeighteen and fifty or sixty (4) returning from the Philippines, Thailand, or Cambodia (5) traveling alone (6) with a pr ior criminal history. Along with an unspecified number of other passengers from the eight to ten flights that investigators were monitoring that day, Wanjiku met all of the initial screening factors. That is, he is a U.S. citizen male, then aged forty-one, returning from the Philippines, traveling without any apparent companion, with a prior arrest.
Investigators sought to whittle down the resulting list by further investigating these t ravelers before they arrived at O’Hare. Using government databases 1 and publicly available

1 The investigators used a DHS syst em called “TECS” to conduct their research. TECS allows investigators to search other databases linked to CBP (continued...)No. 18-1973 3

social media, they determined that Wanjiku’s prior arrest was for contributing to the delinquency of a minor, 2 that this was his third trip to the Philippines in two years, that this trip was sixty days in length, and that he had no apparent affiliation with the Philippines other than these trips. For example, they
were unable to find business or family ties to the Philippines for Wanjiku. The investigators determined that Wanjiku had booked a prior flight using an email address that incorporated the name “Mr. Dongerous,” whic h heightened their suspicions
based on their belief that this was a play on the word “dong,” which is vulgar slang for penis. 3 Using that email address, they searched Facebook and found a pu blic Facebook page associated with that address. The person in the profile picture

1 (...continued) including the National Criminal Inform ation Center (“NCIC”), the National Automated Immigration Lookout System (“NAILS”), and the Arrival and Departure Information System (“ADIS ”), among others. Together, these databases provide information about passengers’ arrival and departure records, criminal histories, immigr ation status, and email addresses and phone numbers used to book travel.

2 CBP Officer Adam Toler testified atthe suppression hearing that he could
not recall when the arrest had occu rred and did not know how it was
resolved. He also did not know the specific allegations underlying it.

3 During cross-examination, Wanjiku ’s counsel suggested that the email address was a play on Wanjiku’s first name, “Don.” Wanjiku placed no evidence in the record regarding the origin of the email address, and of course, it is possible for the address to be a play on both “Don” and “dong.” As we will discuss below, in determining whether a search violates the Fourth Amendment, a court evaluate s only how a reasonable officer would have interpreted this information.4 No. 18-1973

(whom they believed to be Wanjiku) was wearing a mask of the type that one wears to a masquerade ball. Photos of “friends” on that page appeared to be “very young” relative to Wanjiku’s age. 4 The investigators for Operation Culprit found all of this suspicious enough to warrant sending Wanjiku to a more thorough secondary inspection on his arrival at the airport. 5

After Wanjiku passed through the primary inspection point and was referred to the secondary inspection area in Baggage Hall A, CBP Officer Toler met Wanjiku for a more thorough secondary inspection. Toler testified that, at the secondary inspection area, he typically would take the traveler’s bags and then obtain a binding declaration from that person. He would
then ask what the traveler wa s doing outside of the United States, obtain a story about the trip, and then go through the traveler’s bags to see if the contents of the bags corroborated
the traveler’s answers. Toler ca ndidly testified at the suppression hearing that investigators had already decided to inspect the contents of Wanjiku’s cell phone and other electronic devices before he reached the secondary inspection point

4 Agent Toler testified that Wanj iku had approximately fifty to one hundred Facebook friends, and appr oximately half were younger. When pressed by the court at the suppression hearing to describe the ages of the friends, Toler responded, “I’m just gu essing at age. Looked not in their forties.” R. 59, Tr. at 51. He later adde d, “I’m not sure exactly what the age is; but they weren’t in their 30s.” R. 59, Tr. at 52.

5 In total, Operation Culprit investiga tors selected twen ty-three or twentyfour individuals for secondary inspec tion from the two to three thousand passengers arriving on the targeted f lights that day. R. 59, Tr. at 16.No. 18-1973 5

(indeed, before he reached the primary inspection point) on the
basis of the information that th ey had gathered prior to his arrival. Nevertheless, before those devices were actually inspected, Wanjiku gave the investigators additional cause for concern. For openers, at the primary inspection point, the officer interacting with Wanjiku indicated in notes to thesecondary inspector that Wanjiku was “evasive for questioning.”
At the secondary inspecti on area in Baggage Hall A, Wanjiku came to Toler’s attention even before Toler could begin his usual inspection process. Toler saw Wanjiku leave the line of persons awaiting in spection, something Toler had never seen a passenger do befo re. As Toler later learned from an Immigration and Customs Enforcement (“ICE”) agent, Wanjiku left Baggage Hall A and walked approximately two hundred feet away and across an exit corridor to a bathroom in Baggage Hall B, even though there was an identically
marked bathroom much closer in Baggage Hall A. Wanjiku left his luggage in the line when he took this walk and an ICE agent escorted him back to the line.
At the beginning of the inspection, Toler asked Wanjiku why he had left the line. Wanjiku replied that he had heat
stroke and needed to use the bathroom. Toler noted that Wanjiku was sweating profusely in the air conditioned hall, was shifting his weight, and s eemed visibly nervous. Toler then asked Wanjiku about the trip itself, and Wanjiku said he had been visiting friends in the Philippines for two months. In response to Toler’s questions, Wanjiku also revealed that he had left the U.S. with $6000 and was returning with just a few hundred dollars. He had stayed at the home of the friends he6 No. 18-1973

was visiting. Because Wanjiku had reported on a Customs
Declaration form that he was no t bringing in items exceeding $800 in value and because he had said he was staying with friends, Toler asked him how he had spent more than $5000 during the trip. Wanjiku gave vague and evasive answers, saying only that his friends had shown him around the country. He also told Toler that he sometimes sent or gave money to the family he stayed wi th in order to help their child attend school. He went to the Philippines, he said, in part to make sure his money was being put to good use. Toler asked where Wanjiku traveled in the Philippines and he would not elaborate, saying only that hi s friends showed him around the country. Toler went through the list of questions that a traveler normally must answer on the standard Customs Declaration form, including whether he was bringing in more than $10,000 in currency, food, cell cultures, snails, or gifts, among other things.
After obtaining a binding declaration from Wanjiku, Toler prepared to inspect Wanjiku’s tw o large bags and single carryon bag. He asked if the bags belonged to Wanjiku and whether Wanjiku himself had packed them. Wanjiku respondedaffirmatively to both questions. In response to Toler’s questions, he denied that there were any sharp objects in the bags that could possibly poke, cut or hurt Toler as he went through the bags. Toler and another agen t then opened the bags. They set aside Wanjiku’s cell phone, la ptop and portable hard drive for later inspection. In one ba g, Toler found a pocket full of receipts, including multiple rece ipts for hotel stays. Most were for one-night stays, and two were for one-night stays at the same hotel approximately one week apart. Because WanjikuNo. 18-1973 7

had previously told Toler that he stayed with friends, Toler asked what the hotel receipts were for. Wanjiku said that his
friend showed him around the co untry and these receipts were from those trips. That answer heightened Toler’s suspicions both because Wanjiku had previo usly given the address of the friend as the place he stayed and because Toler deemed it unusual to stay at the same hote l twice in the span of a week if a person is traveling around th e country. He asked Wanjiku about the dual receipts for the same hotel specifically and Wanjiku would not elaborate, instead asking Toler whether it was illegal to go around the country or have a friend show him around the country.
Toler next found a pocket containing syringes and condoms, which upset him because Wanjiku had denied that the bags contained sharp objects, pu tting Toler at risk of injury. When asked about the syringes, Wanjiku explained that he hadmedication in his other bag. The injectable medication recovered from the other bag was to treat low testosterone. The second bag also contained oxycodone and OxyContin pills, a narcotic pain medication. The medications raised additional red flags for Toler because he believed that testosterone was a “sexually specific” substance related to “male genitalia.” R. 59, Tr. at 34. Moreover, both medications were in the name Donald Kwiatkowski, not Donald Wanjiku. Wanjiku explained that he had changed his name, and offered a social security card issued in his prior name to support his claim.
After completing this check of Wanjiku’s bags, Toler turnedhis attention to the cell phone. The phone was passwordprotected, and Toler began by asking Wanjiku to unlock the phone. Wanjiku initially resisted but relented when Toler told8 No. 18-1973

him that everything was searchabl e at the border and that the phone would be seized, unlocked by a “lab,” and examined whether or not Wanjiku unlocked it. Toler took the unlocked phone and manually scrolled th rough the pictures. Within a minute, he found several pictures of Wanjiku lying in bed with
another man who was in his unde rwear. Although Toler twice referred to the other person in the photos as a “man,” he also testified at the suppression hearing that he was uncertain of the age of the person pictured. 6 Toler then turn ed the phone over
to HSI because the HSI forensics team was better trained than he to identify child pornography.
Agent Kevin Gerlock of HSI was the computer forensic coordinator on the scene at O’Hare that day. HSI agents used forensic software to “preview” Wanjiku’s cell phone and hard drive while Wanjiku waited at the secondary inspection area. Gerlock explained that “EnCase” software was used first to preview Wanjiku’s external hard drive. EnCase allows a search
of the contents of a hard driv e without modifying or destroying any of the information cont ained on the device. A preview, Gerlock testified, involved looking only at allocated space on the device, essentially items catalogued by the device’soperating system in files. In contrast, a full forensic examination of a device would copy ev ery bit of memory in the device and would reveal items that had been deleted or placed in

6 After examining the pictures herself, the district judge specifically found
that Toler’s claim that he could notdetermine the age of the individual pictured was credible. Notably, though , the district court did not rely on the presence of these photos in dete rmining whether the agents possessed reasonable suspicion to searchWanjiku’s electronic devices.No. 18-1973 9

hidden areas of memory. A preview generally takes one to three hours to complete. A full forensic examination could take months. The agents used softw are to inspect the devices in order to avoid damaging the devices or altering the data on the
devices. 7

Agent Mark Bowers performed the forensic preview on the hard drive, which was neither password-protected norencrypted. Bowers used the EnCase software to view photographs and videos stored on th e device. The preview took less than an hour and revealed six videos of suspected child pornography. The file names for the videos included references to the ages of the children po rtrayed and terms known to the agents to be associated with child pornography. For example, one file was labeled “pthc-15yogirlteaching12yoboys.” Gerlockexplained that “pthc” is known by the agents to be an abbreviation for “preteen hardcore.” Gerlock, having seen the videos, confirmed that the titles were in fact descriptive of the content. 8

7Agent Gerlock explained that elec tronic devices sometimes track the time and date that a person last looked ata photo and that by manually scrolling through the device, the agents might in advertently alter that kind of data.
Gerlock also testified that cell phones sometimes cont ain apps that will alter
data or even delete it if someone accesses the data manually. The software allowed the agents to see the photos and videos without altering the data in any way. R. 59, Tr. at 95, 99. None of the searches altered the data or
harmed the devices.

8 After a warrant was obtained, a full forensic examination of the hard drive was conducted, revealing approx imately twenty-two videos of child pornography.10 No. 18-1973

The second preview search performed by forensics officers at the airport that day was of Wanjiku’s Samsung cell phone. 9
In this instance, Officers Keith Smith and Marci Landri used “Cellebrite” and “XRY” software to review photos and videos stored on the phone. As with th e hard drive, the search did not
include deleted or hidden files. The agents did not attempt to inspect email, text messages or similar data, instead confiningthe searches to photographs and videos. The fourteen photographs of child pornography that were found that day were stored on a small memory card inserted into the phone rather than in the memory of the phon e itself. This removable “micro SD” memory card was neither password-protected nor encrypted.
The agents lacked the necess ary equipment to preview the laptop at the airport. Because child pornography had already been discovered on two of Wanj iku’s electronic devices, the laptop was taken to an HSI lab where it was previewed approximately one week later. The laptop preview took underthree hours, and agents again restricted the search to photographs and videos, not searching for deleted or hidden files. Child pornography was also recovered from the laptop. For each electronic device, the ph otographs and videos that were

9 The preview search of the phone was performed over a two-day period. At the airport on the first day, Smith discovered photographs indicative of child pornography. Because the agents’ workday was then at an end, the phone was taken to the agents’ office the next day to preview videos. At that point, because child pornograph y photos had already been found on the phone, the device could not clear customs and would not be returned to the traveler. Together, the preview searches of the phone lasted under
two hours.No. 18-1973 11

suspected to be child pornography were copied to a compact disk and entered into evidence at the suppression hearing. 10

On the basis of the photograp hs and videos discovered on Wanjiku’s electronic devices during these warrantless searches at the border, he was charged wi th one count of transportation of child pornography, in violat ion of 18 U.S.C. § 2252A(a)(1). Wanjiku moved to suppress the evidence collected during the searches of his electronic devices at the border, arguing that it was improper for the agents to insist that Wanjiku unlock the phone, and that searches of elec tronic devices are non-routine border searches that require reasonable suspicion or, arguably,

a warrant. 11 The government countered that the preview
examinations of the devices we re routine searches that may be conducted at the border without any suspicion whatsoever. In the alternative, the government asserted that the agents possessed reasonable suspicion based both on information known to them before Wanjiku arrived at O’Hare and information developed during routine in spection and questioning, and that no court had required more than reasonable suspicion for

10 Although full forensic searches were completed for all three devices after a warrant was obtained, we confine ourselves to the airport preview searches because those provided the ba sis for obtaining the warrant. If the
initial searches withstand constituti onal scrutiny, then the full forensic searches also stand up.

11 In his reply brief on the Motion to Suppress, Wanjiku clarified his position by arguing that “a reasonable suspicion standard should apply, but
also ... in the wake of Riley v. California , 134 S. Ct. 2473 (2014), there are grounds for a higher standard, namely probable cause and a warrant.” R. 50, at 1. Wanjiku mainly contended in the district court that the agents lacked reasonable suspicion to search his electronic devices.12 No. 18-1973

even a non-routine border search. The district court found that the information known to the agen ts at the time they searched Wanjiku’s devices was sufficient to trigger a reasonable suspicion that he was involved inthe kind of criminal activity targeted by Operation Culprit. The court therefore denied the motion to suppress the fruits of the border search, and Wanjiku pled guilty conditionally, retaining his right to challenge the district court’s suppression ruling on appeal.

II.
On appeal, Wanjiku contends that, in the wake of the Supreme Court’s decisions in Riley v. California , 134 S. Ct. 2473 (2014), and Carpenter v. United States , 138 S. Ct. 2206 (2018), border searches of electronic devices may be conducted only with a warrant supported by probab le cause. In the alternative, if the applicable standard is re asonable suspicion, he contends
that the facts known to the o fficers when they decided to
search his electronic devices were not sufficient to give rise to reasonable suspicion. The government takes the position that no individualized suspicion is needed for a routine border
search of electronic devices. In the alternative, the government argues that if probable cause is now required under Riley and Carpenter, suppression would not be warranted under the good faith doctrine. Finally, the government maintains that if reasonable suspicion is the a ppropriate standard for border searches of electronic devices, that standard was met here. In reviewing a district court’s deni al of a motion to suppress, we review findings of fact for clear error and questions of law de

novo

. United States v. Velazquez , 906 F.3d 554, 557 (7th Cir. 2018);
United States v. Borostowski , 775 F.3d 851, 863 (7th Cir. 2014).No. 18-1973 13

The primary positions staked out by the parties could not be more starkly contrasted. Th e defendant argues that nothing
less than a warrant authorizes a search of electronic devices at the border. The government asse rts that it may conduct these searches without any particularized suspicion at all. In the end, though, we need not adopt eith er of these positions, and indeed may avoid entirely the th orny issue of the appropriate level of suspicion required. Instead, we affirm the district
court’s denial of the motion to suppress because these agents acted in good faith when they searched the devices with reasonable suspicion to believe that a crime was being committed, at a time when no court had ever required more than reasonable suspicion for any search at the border.

A.
Two months before the First United States Congress proposed the Bill of Rights, it enacted the first customs statute, granting customs officials “‘full power and authority’ to enter and search ‘any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty
shall be concealed . . ..’” United States v. Ramsey, 431 U.S. 606, 616 (1977) (quoting section 24 of Act of July 31, 1789, c. 5, 1 Stat. 29). Approximately one hundred years later, the Supreme
Court noted that the statute a llowing searches of ships and vessels and the seizure of goods “concealed to avoid the duties payable on them” had been passed by the same Congress that proposed the Fourth Amendment . That timing made clear “that the members of that body did not regard searches and seizures of this kind as ‘unreasonable,’ and they are not embraced within the prohibition of the amendment.” Boyd v.
United States , 116 U.S. 616, 623 (1886). See also Ramsey, 431 U.S.14 No. 18-1973

at 616 (“searches made at the border, pursuant to the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border”).
This is because the “Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the
international border.” United States v. Flores-Montano , 541 U.S. 149, 152 (2004). The Court has linked this longstanding, congressionally-granted, search-and-seizure authority to two main purposes: to allow the regulation of the collection of duties, and “to prevent the introduction of contraband into this country.” United States v. Montoya de Hernandez , 473 U.S. 531, 537 (1985). See also United States v. 12 200-Foot Reels of Super
8mm Film , 413 U.S. 123, 125 (1973) (noting that broad powers to conduct searches of persons and packages at national borders are “necessary to prevent smuggling and to prevent prohibited articles from entry.”); United States v. Thirty-Seven Photographs , 402 U.S. 363, 376 (1971) (“Customs officers characteristically inspect luggage and their power to do so isnot questioned in this case; it is an old practice and is intimately associated with excluding illegal articles from the country.”); Carroll v. United States , 267 U.S. 132, 154 (1925) (although it would be intolerable if a prohibition agent were allowed to stop all cars on the chance of finding liquor, “[t]ravelers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.”).No. 18-1973 15

Although neither party cited in their appellate briefs the statutory authority under whic h CBP carried out the searches here, modern analogues of the customs law passed by the First Congress include 19 U.S.C. § 482 (search of vehicles and persons); 19 U.S.C. § 1467 (special inspection, examination, and search); 19 U.S.C. § 1496 (examination of baggage); 19 U.S.C. § 1581 (boarding vessels); and 19 U.S.C. § 1582 (search of persons and baggage; regulations). 12 The customs area of O’Hare International Airport, lo cated in Chicago, is treated as the functional equivalent of an international border for the purpose of inspecting persons and articles arriving on international flights. United States v. Yang, 286 F.3d 940, 944 (7th Cir. 2002) (“O’Hare Airport is an in ternational gateway into the United States, and incoming passengers from international ports are subject to border searches because the airport is the functional equivalent of an international border.”). See also
Almeida–Sanchez v. United States , 413 U.S. 266, 272–73 (1973) (“a search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City would clearly be the functional equivalent of a border search.”). Wanjiku does not contest generally the statutory right of border agents to search his belongings at the airport for contraband but instead argues th at, once agents have determined that an electronic device is not being used as a container to smuggle a prohibited substance ( e.g. an explosive or illegal drugs), they must have a warrant or at least reasonable

12 In the district court, the government cited and relied upon 19 U.S.C. § 1581. R. 49, at 7, n.8.16 No. 18-1973

suspicion to examine the electron ically stored contents of the
device.
Wanjiku concedes that no court has ever required a warrant for any border search or seizure. The highest standard that has been applied by the Supreme Cour t at the border is reasonable suspicion. Montoya de Hernandez , 473 U.S. at 541. In that case,border agents detained a woman at the border for approximately sixteen hours because they suspected that she was smuggling illegal drugs in her alimentary canal. Arriving from Bogotá, Colombia, a known source country for narcotics, Montoya de Hernandez had made eight recent trips of short duration to Miami and Los Angeles. On questioning, the agents learned that she spoke no English, had no friends or family in the United States and was carrying $5000 in cash. She traveled with only one small suitcase with a few changes of clothes. Although she claimed to be in the United States to purchase items for her husband’s store in Colombia, she had no appointments with merchand ise vendors, no hotel reservations, and no plans other than to take taxicabs around Los Angeles to retail stores such as K-Mart and J.C. Penney to buy goods for her husband’s store. She could not recall how her plane ticket had been purchased. On the basis of this information, the agents believed that she was a “balloon swallower,” and that she was attempting to bring illegal drugs into the country in her alimentary cana l. A female customs agent was dispatched to conduct a strip search, which revealed that her
abdomen was firm and full. When asked to submit to an x-ray, she at first agreed but then wi thdrew her consent. The inspector then gave her the option of returning to Colombia on the next flight, agreeing to an x-ray , or remaining in detention untilNo. 18-1973 17

she produced a monitored bowel movement that would be inspected for balloons or capsules of drugs. 473 U.S. at 532–35.
She chose the first option, but the agents were unsuccessful in finding a flight that evening and she remained in the customs office under observation through the night. At that point, she was given the option of an x-ray or detention pending the monitored bowel movement. She was told that she
would have to use a wastebaske t in the women’s restroom so that agents could examine her stool for balloons. After sixteen hours in detention, she had not defecated or urinated and had refused all food and drink. At that point, customs officials sought a warrant which authorized an x-ray and rectal exam by a physician. The rectal exam led to the discovery of the first of eighty-eight balloons containing a combined total of one half of a kilogram of cocaine. 473 U.S. at 535–36.
The Supreme Court affirmed the denial of her motion to suppress the evidence obtained as a result of her sixteen-hour
warrantless detention under these conditions. The Court first
noted that the Fourth Amendment commands that searches and seizures be reasonable, and that the permissibility of a particular law enforcement practice is judged by balancing that practice’s intrusion on Fourth Amendment interests against its promotion of legitimate government interests. Montoya de
Hernandez , 473 U.S. at 537. Dating back to the founding era, Congress had granted the Executive plenary authority to conduct searches and seizures at the border without probable cause or a warrant. Because such power is needed to protect the nation, the balancing of interests at the border has been treated very differently than inthe interior. 473 U.S. at 537-38. “[N]ot only is the expectation of privacy less at the border than18 No. 18-1973

in the interior, the Fourth Amendment balance between the interests of the Government and the privacy right of the
individual is also struck muchmore favorably to the Government at the border.” 473 U.S. at 539-40 (internal citations omitted). See also Ramsey, 431 U.S. at 623 n.17 (noting that there are “limited justifiable expectations of privacy at the border” in part because of “the longst anding, constitutionally authorized right of customs officials to search incoming persons and goods”). The Court ultimately held that the detention of a traveler “beyond the scope of a routine customs search and inspection,” is justified if the agents “reasonably suspect that the traveler is smuggling contraband in her alimentary canal.”
473 U.S. at 541. The Court found that the agents possessed the requisite level of suspicion considering all of the facts known to them regarding this traveler and her trip. 473 U.S. at 542.
The Court later rejected an extension of the requirement of reasonable suspicion at the border for another search that a
lower court had characterized as non-routine. Flores-Montano

, 541 U.S. at 152-53. In that case, bo rder agents had seized thirtyseven kilograms of marijuana fr om a car entering the United States from Mexico. The drug s were discovered by removing the car’s gas tank and disassembling it. The government declined to rely on reasonable suspicion in supporting the search, instead contending that the search was proper as a border search for which no particularized suspicion was required. The Court of Appeals found that the disassembly of the tank was non-routine and required reasonable suspicion, citing Montoya de Hernandez . The Supreme Court rejected the comparison:No. 18-1973 19

The Court of Appeals t ook the term “routine,” fashioned a new balancing test, and extended it
to searches of vehicles. But the reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person —dignity and privacy interests of the person being searched—simply do not carry over to vehicles. Complex balancing tests to
determine what is a “routine” search of a vehicle, as opposed to a more “intrusive” search of a person, have no place in border searches of
vehicles.

Flores-Montano , 541 U.S. at 152. Reiterating that the expectation of privacy is less at the border than in the interior, the Court also emphasized that the govern ment’s interest in preventing the entry of unwanted persons an d effects “is at its zenith at the international border.” 541 U.S. at 152, 154. The Court hedged only slightly on the usual rule allowing plenary searches of property at the border, noting that although “it may be true that some searches of property are so destructive as to require a different result , this was not one of them.” 541
U.S. at 155–56.

B.
Although our court has yet to confront the precise issue presented here—a non-destructiv e search of the contents of
electronic devices at the border—we have confronted bordersearches and seizures that we characterized as arguably nonroutine and we applied the reasonable suspicion standard to
those searches. Yang, 286 F.3d at 949 (applying the reasonable20 No. 18-1973

suspicion standard to a search at O’Hare Airport that took place at a different terminal after the traveler had been released from routine inspection at the customs area of the international terminal); United States v. Johnson , 991 F.2d 1287, 1291-94 (7th Cir. 1993) (approving a forty-minute seizure of a passenger and the dismantling of her suitcase during an O’Hare Airport border inspection because, evenif these actions were “nonroutine,” customs agents posse ssed reasonable suspicion to support them). We decided Johnson a decade before the Supreme Court rejected the a pplication of the reasonable suspicion standard to the dismant ling of a car’s gas tank at the border. But in the Seventh Circuit, Johnson set the high point at reasonable suspicion for searc hes that are non-routine. See also Kaniff v. United States , 351 F.3d 780, 784-85 (7th Cir. 2003) (finding reasonable suspicion an adequate standard to support a pat down, a partial strip search and a visual body cavity search at the international terminal at O’Hare).
Although conceding that no court has applied a standard higher than reasonable suspicion for even highly intrusive searches at the border, Wanjik u nonetheless argues that the legal landscape for the search of cell phones changed with Riley
and Carpenter . He argues that those ca ses demonstrate that cell phones present unparalleled pr ivacy interests that require heightened Fourth Amendment protection. Specifically, he asserts that, even in the border context, law enforcement may search cell phones and other electronic devices only with a warrant supported by probable cause. The Riley decision preceded the search that was conducted in this case; Carpenter was decided three years after the search of Wanjiku’s devices. Wanjiku maintains that those decisions require special treat-No. 18-1973 21

ment for the searches of electron ic devices in general and cell phones in particular, even at the border.
Turning, then, to those decisions, in Riley, the Supreme Court addressed whether police officers could search the contents of a cell phone found in the pocket of an arrestee under the “search incident to the arrest” exception to the warrant requirement of the Fourth Amendment. 573 U.S. at 382. The exception, the Court noted, was rooted in two rationales: the need to protect o fficer safety, and the interest in preventing the destruction of evidence. 573 U.S. at 383. The exception is limited to personal property “immediately associated with the person of the arrestee.” 573 U.S. at 384 (quoting United States v. Chadwick , 433 U.S. 1, 15 (1977), abrogated on other grounds by California v. Acevedo , 500 U.S. 565 (1991)). In the case of cell phones recovered from the person of the arrestee, the Court concluded that, in the usual case, the data on a cell phone pose d no danger to officer safety, Riley, 573 U.S. at 387, and there was little likelihood that evidence would be destroyed once the device was secured by
law enforcement. 573 U.S. at 389-91.
The Court also addressed the arrestee’s reduced privacy expectations upon being taken in to police custody, noting that the Fourth Amendment does not fall out of the picture simply because a person has a reduced interest in privacy. 573 U.S. at 392. For example, an arrest in the home does not justify a “top-to-bottom search of a man’s house” without a warrant. Riley, 573 U.S. at 392 (citing Chimel v. California , 395 U.S. 752, 766-67, n.12 (1969)). In assessing the intrusion on privacy implicated in the search of cell phone data, the Court noted:22 No. 18-1973

Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself mislea ding shorthand; many of
these devices are in factminicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars,tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.
Riley, 573 U.S. at 393. Because of the vast storage capacity of cell phones, the type of data that is collected and stored on these devices, and the pervasiveness of their use: 13

a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.

13 The Court noted that cell phones “ar e now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Riley, 573 U.S. at 385.No. 18-1973 23

573 U.S. at 393–97. 14 In light of these unique characteristics of cell phones, and because a warrantless search of a cell phone found on the person of an arr estee is untethered from the justifications underlying the “search incident to arrest” exception to the warrant requirement, the Court concluded “that a warrant is generally required before such a search, even when a cell phone is seized in cident to arrest.” 573 U.S. at 401.

In Carpenter, the Court assessed whether the government
“conducts a search under the Fourth Amendment when itaccesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements.” 138 S. Ct. at 2211. As a person carrying a ce ll phone moves about throughout the day, radio antennas utilized by wireless carriers collect time-stamped location information each time the phone is in proximity to the antenna site (“cell site”). This data provides an all-encompassing record of the cell phone holder’s whereabouts, tracking not only part icular movements but potentially revealing familial, political, professional, religious and sexual
associations. 138 S. Ct. at 2217. Be cause cell site data is maintained by wireless carrier companie s for up to five years, it also provides a type of information previously unavailable to law enforcement, historical data of where a person was in the past. “[I]ndividuals have a reasonable expectation of privacy in the whole of their physical movements.” Carpenter, 138 S. Ct. at

14 The Court also addressed the addi tional complication that not all cell phone data is stored on the device itse lf, but may be stored in the “cloud,”
remote servers that serve as extensi ons of the device’s internal memory. Riley, 573 U.S. at 397–98. None of the imag es at issue here were retrieved from cloud storage.24 No. 18-1973

2217. The collection of that data by police, the Court found, therefore constitutes a search, and law enforcement “must generally obtain a warrant support ed by probable cause before acquiring such records.” 138 S. Ct. at 2221.
Although both of these cases support Wanjiku’s general argument that the Supreme Court has recently grantedheightened protection to cell phone data, neither case addresses searches at the bord er where the government’s interests are at their zenith, and neither case addresses data
stored on other electronic device s such as portable hard drives and laptops. 15 Prior to Riley, the Court required nothing more than reasonable suspicion for a highly intrusive border search and seizure wherein a woman was held at the airport for
sixteen hours in order for authorities to monitor her next bowel

movement. Montoya de Hernandez , 473 U.S. at 541. For nondestructive searches of property at the border, the Court required no particularized suspicion at all. Flores-Montano , 541
U.S. at 155–56. In Ramsey, after noting that border searches, from before the adoption of the Fourth Amendment, have been considered to be reasonable “by the single fact that the personor item in question had entered into our country from out15 As we noted above, the first device searched by forensic agents was the portable hard drive, and that search revealed child pornography. At that point, the agents possesse d probable cause to sear ch Wanjiku’s cell phone. Moreover, the child pornography reco vered from Wanjiku’s cell phone was not stored on the phone itself but wa s stored on a micro SD card inserted into the phone, a memory device th at was neither password-protected nor encrypted. To the extent that Riley gives heightened protection to cell phone data, it is not at all clear that Riley would help the defe ndant here in light of the order in which the agents searched the devices.No. 18-1973 25

side,” the Court added that “[t]here has never been any additional requirement that the reasonableness of a border search depended on the exis tence of probable cause.” Ramsey

, 431 U.S. at 619. Moreover, no circuit court, before or after Riley

, has required more than reasonable suspicion for a border search of cell phones or electronically-stored data. See United
States v. Kolsuz , 890 F.3d 133, 146–48 (4th Cir. 2018) (finding that some level of particularized suspicion is necessary for a forensic examination of a cell ph one at a border but declining to determine whether reasonable suspicion is the appropriate level because the agents reasonably relied on established precedent allowing warrantless border searches of digital
devices at the border that are based on at least reasonable suspicion); United States v. Touset , 890 F.3d 1227, 1233 (11th Cir. 2018) (finding that, at the border , there is “no reason why the Fourth Amendment would require suspicion for a forensic
search of an electronic device wh en it imposes no such requirement for a search of other person al property,” and noting that, in any case, the agent possessed reasonable suspicion to search the defendant’s electronic devices); United States v. Vergara , 884 F.3d 1309, 1312 (11th Cir. 2018) (fore nsic searches of cell phones at the border require neither a warrant nor probable cause; at the border, the highest standard for search is reasonable suspicion); United States v. Molina-Isidoro , 884 F.3d 287, 289 (5th Cir. 2018) (declining the defendant’s invitation to import Riley ’s warrant requirement into a border search of a cell phone, where that search was supported by probable cause, and where the agents conducting itacted in good-faith reliance on the longstanding and expansive authority of the government to search persons and their effe cts at the border without a26 No. 18-1973

warrant, and with at most reasonable suspicion in cases involving highly intrusive searches of a person); United States
v. Cotterman , 709 F.3d 952, 968 (9th Cir. 2013) (a comprehensive
and intrusive forensic search ofa laptop computer (including deleted files in unallocated space) at the border required a showing of reasonable suspicion).

C.
So at the time the agents searched Wanjiku’s cell phone, hard drive, and laptop, the Supreme Court required no particularized suspicion for a no n-destructive border search of property, and, at most, reasonable suspicion for a highly intrusive border search of a person’s most intimate body parts. No court required probable cause and a warrant for a border search of any property, as Wanjik u now asserts. Given the state
of the law at the time of these searches of the contents of Wanjiku’s electronic devices, the agents therefore possessed an objectively good faith belief that their conduct did not violate
the Fourth Amendment because th ey had reasonable suspicion to conduct the searches. “Courts generally do not suppress unlawfully obtained evidence when the police acted on an objectively good-faith belief that their conduct was lawful at
the time of the search.” Velazquez , 906 F.3d at 560. See also Davis
v. United States , 564 U.S. 229, 241 (2011) (when binding appellate precedent specifically authorizes a particular policepractice, the exclusionary rule should not apply if that precedent is later overruled by the Supreme Court); United States v.
Leon , 468 U.S. 897, 918–21 (1984) (evi dence obtained in objectively good-faith reliance on a subsequently invalidated search warrant should not be excluded); United States v. Jenkins , 850 F.3d 912, 918 (7th Cir. 2017) (unlawfully obtained evidenceNo. 18-1973 27

should not be suppressed when police officers acted with an objectively good-faith belief that their conduct was lawful).
Wanjiku has a two-fold response to the government’s assertion of good faith: first, he contends that the government waited too long to raise the good-faith argument. Second, he asserts that the agents did not possess reasonable suspicion at the time they decided to search the contents of his devices, which Agent Toler candidly admitted at the suppression hearing was before Wanjiku even landed at the airport. We
take each claim in turn.

1.
The government concedes that itdid not raise its good faith claim in the district court but arg ues that this failure should not be taxed against it. According to the government, it had no reason to argue good faith relia nce on reasonable suspicion at the time of briefing in the district court because no court had ever required anything more than reasonable suspicion for any kind of border search. The gove rnment also contends that, to the extent that Wanjiku relies on Carpenter, the Supreme Court had not yet heard or decided that case at the time of briefing, and this intervening change in law obviates any waiver or forfeiture. Finally, the government contends that, although it may not raise new claims or i ssues on appeal, we may review new arguments related to preserved claims.
We agree that the government’s argument on appeal is simply a new twist on the arguments it preserved below, namely, that the agents acted lawfully because they possessed reasonable suspicion. See United States v. Billups , 536 F.3d 574, 578 (7th Cir. 2008) (finding that a “challenge below was28 No. 18-1973

sufficient to preserve [a defe ndant’s] current argument, even
if he offers a new twist on that argument based upon additional authority on appeal”). We also agree that we may ignore any waiver or forfeiture because Wanjiku now relies on Carpenter, intervening case law. Velazquez , 906 F.3d at 560 n.4 (rejecting an argument that the government waited too long to raise good-faith reliance on then -existing precedent when the government raised the issue at its first opportunity following an intervening change in the law) . Indeed, in the district court, Wanjiku argued primarily that reasonable suspicion was needed to support the search, which would not have alerted the government to the need to argue good-faith reliance on existing precedent on the warrant issue. As we noted above, in his reply brief on the Motion to Suppress, Wanjiku argued that “a reasonable suspicion standard should apply, but also ... in
the wake of Riley v. California , 134 S. Ct. 2473 (2014), there are grounds for a higher standard, namely probable cause and a warrant.” R. 50, at 1 (emphasis added). During oral argument at the suppression hearing, he argued for a “heightened
standard” but conceded thatthe law was unsettled, and contended that there was no gu iding precedent for electronic border searches in this circuit. He did not press the argument he makes now, that although this is an issue of first impression in the Seventh Circuit, Riley and Carpenterunequivocally require probable cause and a warrant. Instead, he argued
below that the standard should be probable cause and a warrant, not that it already was:
So we believe that a heightened standard should apply. I know it may be just for preservation purposes that we believe that standard shouldNo. 18-1973 29

be probable cause and a warrant. But, at a minimum, that there should be reasonable suspicion.
R. 59, Tr. at 127. The government rightly responded to the argument that Wanjiku actually presented: that the reasonable suspicion standard applied, and that no court had required probable cause and a warrant. Now that Wanjiku shifts his focus and raises as his primary argument on appeal that the search required probable cause and a warrant, the government may argue that the agents re asonably relied on the wellestablished case law supporting the lesser standard of reasonable suspicion.

2.
We turn to Wanjiku’s contention that the court should measure reasonable suspicion atthe moment that the agents decided to search his devices. Agent Toler conceded that he
had decided to search the conten ts of Wanjiku’s devices before he landed at the airport. But th e subjective beliefs or intentions of law enforcement officers are irrelevant in determining whether reasonable suspicion to search existed. United States v.
Patton , 705 F.3d 734, 738 (7th Cir. 2013) (reasonable suspicion is an objective standard and an officer’s subjective intention to frisk a person from the outset ofthe encounter is irrelevant to that objective assessment). See also Whren v. United States , 517 U.S. 806, 813 (1996) (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”); Terry
v. Ohio , 392 U.S. 1, 21–22 (1968) (courts evaluate the reasonableness of a particular search or seiz ure in light of the particular circumstances judged against an objective standard). That objective test is applied to “the facts available to the officer at30 No. 18-1973

the moment of the seizure or the search ,” and asks whether those facts would warrant a person of reasonable caution in the belief that the action taken was appropriate. Terry, 362 U.S. at 21–22 (emphasis added). Thus, we must measure whether reasonable suspicion existed at the moment of the search of Wanjiku’s devices, not at the time the agents decided to
conduct the search.

3.
The district court found that, at the time the agents actually conducted the searches of Wanjiku’s electronic devices, they
knew:
1) that Mr. Wanjiku was a U.S. citizen male in his 40’s returning from an extended trip by himself to the Philippines, a country with which he had no obvious connection, to which he had traveled several times in the preceding two years, and which was a known destination for sex tourism; 2) that Mr. Wanjiku had been arrested for contributing to the delinquency of a minor, a crime that, like child pornography, involved a minor victim; 3) that Mr. Wanjiku
used an email address that Officer Toler construed as a possible reference to male genitalia; 4) that Mr. Wanjiku’s Facebook page included a profile picture of him ina mask and showed thathe had multiple friends who seemed very young; 5) that the primary border officer’s notes stated that Mr. Wanjiku had been “evasive for questioning” during primary inspection; 5) thatNo. 18-1973 31

Mr. Wanjiku left the secondary inspection line prior to his inspection—something Officer Toler
stated he had never seen before—and offered a questionable explanation for his departure after being escorted back to the line by an ICE agent;and 6) that Mr. Wanjiku appeared visibly nervous during inspection, sweating profusely and shifting his weight.
In addition, upon examining the contents of Mr. Wanjiku’s bag, Officer Toler found hotel receipts that called into question his previous account of where he had stayed during his trip. OfficerToler also found condoms, syringes, and injectable testosterone.
United States v. Wanjiku , 2017 WL 1304087, *6 (N.D. Ill. April 6, 2017). 16

We agree with the district court that these facts “raised a reasonable suspicion that a se arch of Mr. Wanjiku’s electronic devices would reveal evidence of criminal activity involving

minors.” Id

. See also Terry, 362 U.S. at 27 (“in determining whether the officer acted reasonably in such circumstances,

16 We take a moment to note a fact on which the district court apparently
did notrely in assessing reasonable susp icion. The court did not mention the images of Wanjiku with a male of unknown age that Agent Toler saw when he directed Wanjiku to unlock his phone so that the agent could manually scroll through the photos. Al though Wanjiku also contests this manual, non-forensic search of his p hone, that search occurred at a time when Agent Toler alread y possessed all of the fa cts that gave rise to reasonable suspicion.32 No. 18-1973

due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific
reasonable inferences which he is entitled to draw from the facts in light of his experience.”). Reasonable suspicion is a “commonsense, nontechnical” concept that deals with “the factual and practical consideratio ns of everyday life on which reasonable and prudent men, not legal technicians, act.”
Ornelas v. United States , 517 U.S. 690, 695 (1996) (quoting Illinois
v. Gates , 462 U.S. 213, 231 (1983)). Although, as Wanjiku asserts, there may be innocent explanat ions for some of the facts on which the officers relied, “reas onable suspicion ‘need not rule out the possibility of innocent conduct.’” Navarette v. California

, 572 U.S. 393, 403 (2014) (quoting United States v. Arvizu , 534 U.S. 266, 277 (2002)). In light of the facts known to the agents at the time they conducted the searches of Wanjiku’s electronic devices, the agents possessed “a particularized and objective basis” for suspecting that Wa njiku was engaged in criminal activity. Ornelas , 517 U.S. at 696. See also Yang, 286 F.3d at 949 (providing a non-exhaustive list of illustrative factors giving rise to reasonable suspicion in a border search including nervous or unusual conduct, tips from informants, travel itinerary, discovery of incriminating matter during routine searches, information from a search or interrogation of a traveling companion, and evasive or contradictory answers).

III.
In sum, the agents possessed reasonable suspicion to search Wanjiku’s electronic devices, including his cell phone, portable hard drive, and laptop computer. At the time that they conducted these searches, they reasonably relied on Supreme Court precedent that required no suspicion for non-destructiveNo. 18-1973 33

border searches of property, and nothing more than reasonable suspicion for highly intrusive border searches of persons. The Court had also indicated that probable cause and a warrant had never been required for any border search. We therefore
need not reach the issue of whatlevel of suspicion is required (if any) for searches of electron ic devices at the border, and reserve that question for a case in which it matters to the outcome. The district court committed no error in declining to suppress the electronic evidence that formed the basis of Wanjiku’s conviction.

AFFIRMED.