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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

v. 

Jacob Richard Mendez, 

Defendant. 

No. CR-16-0181-TUC-JGZ (JR)

REPORT & RECOMMENDATION 

 Pending before the Court are Defendant Jacob Richard Mendez’s Motion to 

Suppress Evidence (Doc. 39) and Motion to Suppress Statements (Doc. 46).1

 The 

Government filed a Response (Doc. 54) and the Defendant replied (Doc. 55). Defendant 

is charged with one count of Conspiracy to Possess with Intent to Distribute Cocaine and 

Methamphetamine, in violation of 21 U.S.C. § 846, one count of Possession with Intent 

to Distribute Cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), one count 

of Possession with Intent to Distribute Methamphetamine in violation of 21 U.S.C. §§ 

841(a)(1) and 841(b)(1)(C), one count of Conspiracy to Import Cocaine and 

Methamphetamine in violation of 21 U.S.C. § 963, one count of Importation of Cocaine 

in violation of 21 U.S.C. § 952(a) and §§ 960(a)(1) and 960(b)(3), and one count of 

Importation of Methamphetamine in violation of 21 U.S.C. § 952(a) and §§ 960(a)(1) and 

 

1

 The plea deadline is December 30, 2016, and the trial is set for January 18, 2017. (Doc. 50). 

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960(b)(3). (Doc. 11 (Indictment)). In his Motion to Suppress Evidence, Defendant seeks 

the suppression of all information and data obtained from a cellphone and a camera 

seized from the vehicle he was driving at the time of his arrest. In his Motion to Suppress 

Statements, Defendant seeks to suppress all statements related to the ownership of the 

cellphone. 

 Pursuant to LRCrim. 5.1(a), this matter was referred to Magistrate Judge Rateau 

for an evidentiary hearing and a report and recommendation. On November 7, 2016, the 

Court conducted an evidentiary hearing. (Doc. 59 (transcript)).2

 The Government called 

one witness, Christopher Woods, a Special Agent with United States Immigration and 

Customs Enforcement Homeland Security Investigations. The Defendant did not testify 

or call any witnesses. Based on the pleadings, testimony, and arguments of counsel, the 

Court recommends that the District Court, after its independent review, deny Defendant’s 

Motion to Suppress Evidence and grant Defendant’s Motion to Suppress Statements. 

I. Hearing Testimony

 At approximately 11:00 a.m. on December 31, 2015, Agent Woods, who was 10 

or 15 minutes north of the border, was called to the DeConcini Port of Entry (“POE”) in 

Nogales, Arizona, where Customs and Border Patrol (“CBP”) officers had discovered 

20.22 kilograms of cocaine and 1.12 kilograms of methamphetamine in a 2008 

Mitsubishi Endeavor. TR6-7, 19-20. 

 Upon arrival at the POE, Agent Woods first identified and informally interviewed 

the CBP officers involved and surveyed the vehicle. TR7-8, 20. He was told that there 

were two occupants in the vehicle, one of them, the driver, was Defendant. TR8. During 

the course of interviewing the officers and inspecting the vehicle, one of the CBP officers 

gave Agent Woods two phones, an Azumi brand phone and a Samsung Galaxy phone, 

and a camera, that were found in the Mitsubishi. TR9-10, 19, 28, 48, 45, 52. Based on 

his experience, Agent Woods is aware that drug trafficking organizations often 

 

2

 The transcript is cited herein as “TR” followed by the page number where the cited testimony appears. 

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communicate using cellular phones, making the phones especially valuable to 

investigations because they may contain sensitive information. TR16-18, 36. 

 Agent Woods asked the Defendant, who had been formally arrested and was being 

detained in a holding cell at the POE, if he was willing to be interviewed and the 

Defendant invoked his right to counsel. TR21, 28. Agent Woods does not recall if it was 

before or after the Defendant invoked, but he asked him if the Azumi phone belonged to 

him and the Defendant confirmed that it did. TR10, 21-22, 31-32, 35, 50-51. Agent 

Woods then “went through [the phone] by hand, examining the text messages and any 

potential photographs that were in . . . the phone.” TR10, 21-22. Agent Woods was 

looking for “[a]ny implicating messages or evidence of the crime at hand and also of 

anything that might allude to or evidence of a separate criminal nature,” and the 

examination took no more than several minutes. TR11-12. At that time the phone was 

not subjected to any forensic analysis, such as the use of a Cellebrite device. TR10-11. 

Agent Woods also examined the camera by “clicking through the images” and found two 

photographs of what appeared to be marijuana bales. TR46-47. Later that afternoon 

while at his office, Agent Woods took photographs of text messages that he found on the 

phone and the photos from the camera. TR34, 51, 54. 

 Agent Woods also examined the Samsung Galaxy and found nothing relevant to 

the crime at hand or any other crimes. The agent subsequently returned the Samsung 

Galaxy to the passenger, Carolina Enriquez-Amaro, when she was released from the 

Santa Cruz County Jail on January 4, 2016, after the United States Attorney declined 

prosecution. TR12-13. 

II. Discussion 

A. Motion to Suppress Evidence 

 All searches must be reasonable under the Fourth Amendment, which provides: 

The right of the people to be secure in their persons, houses, papers, and 

effects, against unreasonable searches and seizures, shall not be violated, 

and no Warrants shall issue, but upon probable cause, supported by Oath or 

affirmation, and particularly describing the place to be searched, and the 

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persons or things to be seized. 

U.S. Const. amend. IV. Although the Fourth Amendment does not specify, and Supreme 

Court has not exhaustively described, the circumstances that support a search without a 

warrant, it is well-settled that border searches are exempt from the warrant requirement. 

See Untied States v. Montoya de Hernandez, 473 U.S. 531 (1985). Under the border 

search exception, law enforcement may conduct “routine” searches of property at the 

border without first obtaining a warrant or establishing any level of individualized 

suspicion. Id. at 538. As the Government has reminded the Court in this and other cases, 

the Fourth Amendment and the Supreme Court allow such searches because “[t]he 

Government’s interest in preventing the entry of unwanted person and effects is at its 

zenith at the international border.” United States v. Flores-Mantano, 541 U.S. 149, 152 

(2004). Due to this heightened governmental interest, it is well-established that searches 

made at the border “are reasonable simply by virtue of the fact that they occur at the 

border.” United States v. Ramsey, 431 U.S. 606, 616 (1977). 

 The border search exception is not, however, without limit. Addressing the Fourth 

Amendment’s “reasonableness” requirement in relation to border searches, the Supreme 

Court has distinguished between “routine” and “nonroutine” searches, holding that only 

“[r]outine searches of the persons and effects of entrants are not subject to any 

requirement of reasonable suspicion, probable cause, or warrant.” Montoya de 

Hernandez, 473 U.S. at 538 (citing Ramsey, 431 U.S. at 618-19). What the contours are 

dividing the routine from the nonroutine has not been explicitly addressed by the 

Supreme Court. It is clear that “the Government’s authority to conduct suspicionless 

inspections at the border includes the authority to remove, disassemble, and reassemble a 

vehicle’s fuel tank.” Flores-Mantano, 541 U.S. at 155. But, in Montoya de Hernandez, 

the Supreme Court determined that a nonroutine seizure occurred when the defendant 

was detained for sixteen hours while border agents obtained a court order to conduct a 

rectal examination, but nevertheless found the seizure constitutional because it was 

supported by the agents’ reasonable suspicion that the defendant was smuggling drugs in 

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her alimentary canal. 473 U.S. at 541. 

 Despite the fact that neither the Supreme Court nor any lower court has ever 

required anything beyond reasonable suspicion to justify any border search, see, e.g., 

United States v. Cotterman, 709 F.3d 952, 962-63 (9th Cir. 2013) (requiring reasonable 

suspicion for extensive forensic examination of electronic devices seized at the border); 

United States v. Saboonchi, 48 F.Supp.3d 815, 819 (D. Md. 2014) (where the court noted 

that “Defendant has not cited to a single case holding that anything more than reasonable 

suspicion was required to perform a search of even the most invasive kind at the 

international border, and I have found none.”), Defendant contends that recent Ninth 

Circuit decisions recognize the heightened privacy interests associated with cellphones, 

and should be interpreted to require that agents obtain a warrant prior to manually 

searching a such a device. Such an extreme result is not supported by an examination of 

relevant Ninth Circuit authority. 

 In United States v. Arnold, 533 F.3d 1003 (9th Cir. 2008), the defendant was 

returning from a trip to the Philippines and was stopped at the airport by customs officials 

and asked to turn on his laptop computer. Id. at 1005. After an initial examination of 

two desktop folders revealed a photo of nude women, the laptop was searched for several 

hours by agents who discovered images they believed to depict child pornography. Id. 

The defendant sought to suppress the photos, arguing that reasonable suspicion was 

required to support the search. Id. The Ninth Circuit disagreed, observing that a laptop 

was not entitled to a heightened expectation of privacy because “beyond the simple fact 

that one cannot live in a laptop, . . a laptop goes with the person, and therefore is ‘readily 

mobile.’” Id. at 1009-10 (citing California v. Carney, 471 U.S. 386 (1985)). The court 

also analogized the laptop search to the gas tank search that was found constitutional in 

Flores-Montano, finding that “a search which occurs in an otherwise ordinary manner,” 

is not “’particularly offensive’ simply due to the storage capacity of the object being 

searched.” Id. at 1010 (citation omitted). 

 Several years later, in United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013), 

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the Ninth Circuit refined its approach to the border search of digital devices and found 

that, under certain circumstances, reasonable suspicion was necessary before a search 

could be conducted. Cotterman did not involve the sort of “unintrusive search” that was 

performed by the agents in Arnold. Rather, the search of Cotterman’s laptop involved the 

use of computer forensic software and the “painstaking analysis” of the hard drive, 

including deleted data. Id. at 962-63. While the court continued to approve of the search 

undertaken in Arnold, it found that the extensive forensic examination of the Cotterman’s 

laptop required reasonable suspicion in light of the significant expectation of privacy in 

such digital devices. Id. at 966. Thus, after Cotterman, border searches of digital devices 

are subject to two standards. Under Arnold, manual searches require no suspicion at all, 

and under Cotterman, intrusive forensic examinations require reasonable suspicion. See 

United States v. Ramos, -- F.Supp.3d –, 2016 WL 3552140 at *4 (S.D. Cal. 2016). 

 Defendant argues that the Supreme Court case of Riley v. California, 134 S.Ct. 

2473 (2014), modified the requirements outlined in Arnold and Cotterman. Specifically, 

he argues that due to the immense storage capacity of cellphones, and the heightened 

privacy interests in the data stored on cellphones, “place such devices in a sui generis 

category for which a warrant should be required prior to police access, regardless of 

whether the search occurred at the border or not.” Motion to Suppress Evidence, p. 6. 

The Court finds that while Riley may have modified the standards announced in Arnold 

for conducting a manual search of a cellphone at the border, it cannot fairly be interpreted 

as requiring a warrant for such a search. 

 The question addressed in Riley was whether law enforcement officers are 

permitted to search digital information on a cellphone as part of a warrantless search 

incident to an arrest. 134 S.Ct. at 2480. The decision does not address the border search 

exception at all, but it does make clear that the unique characteristics of cellphones put 

them in a category separate from other personal property. Id. at 2484-85, 2489-91. The 

Supreme Court concluded that, in light of the “immense storage capacity” of cellphones 

and the type of information stored on them, “a cell phone would typically expose to the 

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government far more than the most exhaustive search of a house.” Id. at 2489-91. Those 

characteristics, the Court concluded that, as a general rule, law enforcement officers must 

obtain a warrant before searching the digital information on an arrestee’s cellphone. Id. 

at 2495. 

 In reaching its conclusion in Riley, the Supreme Court evaluated the 

reasonableness of such searches by balancing “the degree to which [the search] intrudes 

upon an individual’s privacy” against “the degree to which it is needed for the promotion 

of legitimate governmental interests.” Id. at 2484-85. Applying this test, the Supreme 

Court identified officer security and the preservation of evidence as the “legitimate 

government interests” supporting a search incident to arrest. However, they found these 

interests blunted because the digital information on a cellphone could not be used to harm 

an officer and because, once the cellphone is in the custody of law enforcement, the 

arrestee is unable to erase the evidence contained on the phone. Id. at 2486-87. 

 Turning to the privacy interests involved, the Supreme Court elevated the 

cellphone above other personal property based on the volume and sensitivity of the 

information usually stored on the device. Id. at 2489. The Court specifically noted that 

the phones’ immense storage capacity, including the usual collection of photos, 

messages, internet browsing history, and contacts, reveal information about every aspect 

of our lives, including faith, hobbies, health, and finances. Id. Weighing these privacy 

interests against the government interest in officer safety and preventing the destruction 

of evidence, the Supreme Court concluded that officers must generally obtain a warrant 

before conducting a search of a cellphone incident to arrest. Id. at 2495. 

 The Ninth Circuit has yet to address Riley’s impact on the border search exception. 

However, the balancing test employed by the Supreme Court in Riley provides a useful 

analytical framework for examining the level of suspicion needed to support the manual 

search of a cellphone at the border. As set out above, the Supreme Court made clear in 

Riley that the privacy interests in the information contained on cellphones is much greater 

than the privacy interests in luggage and other personal effects. The Supreme Court went 

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so far as to conclude that a search of a cellphone could be more intrusive than the search 

of a person’s home: 

Indeed, 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 [found in the home]. 

Id. at 2491. Thus, by finding the search of a cellphone in many respects more intrusive 

than the search of a home, the Supreme Court bestowed upon cellphones the highest level 

of Fourth Amendment protection traditionally reserved for the home. 

 The significant privacy interests in the contents of a cellphone must then be 

weighed against the governmental interests supporting the search. Unlike a search 

incident to arrest, the purpose of a border search is not to prevent the destruction of 

evidence. Rather, the Government is interested in “preventing the entry of unwanted 

person and effects,” and this interest is “at its zenith at the international border.” FloresMantano, 541 U.S. at 152. The Supreme Court has recognized that border searches were 

recognized “by the same Congress which proposed for adoption the original amendments 

to the Constitution . . . .” Ramsey, 431 U.S. at 617. In fact, the Supreme Court has noted 

“that border searches were not subject to the warrant provisions of the Fourth 

Amendment and were ‘reasonable’ within the meaning of [the Fourth] Amendment, has 

been faithfully adhered to by this Court.” Id. In fact, “[t]here has never been any 

additional requirement that the reasonableness of a border search depended on the 

existence of probable cause.” Id. at 619. Thus, applying the probable cause and warrant 

requirement in Riley to manual searches of cellphones at the border would significantly 

restrict these longstanding government interests. 

 Having rejected the idea that Riley requires a warrant under the circumstances of 

this case does not entirely resolve it application. Certainly, there is a good argument that 

the heightened level of privacy in cellphones described by the Supreme Court could be 

interpreted as requiring the same reasonable suspicion for manual non-intrusive searches 

of cellphones that is required for detailed forensic examination of such devices. See 

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Cotterman, 709 F.3d at 968. However, even if the Ninth Circuit adopted this approach, 

reasonable suspicion for the manual search of Defendant’s cellphone is easily found 

under the facts of this case. “[R]easonable suspicion exists when an officer is aware of 

specific, articulable facts which, when considered with objective and reasonable 

inferences, form a basis for particularized suspicion.” United States v. Montero-Camargo, 

208 F.3d 1122, 1129 (9th Cir. 2000) (en banc). It cannot be disputed that such suspicion 

came into existence when the agents discovered a large amount of cocaine and 

methamphetamine in Defendant’s car and he was arrested. As Agent Woods testified, 

drug trafficking organizations often communicate using cellular phones, making the 

phones especially valuable to investigations because they may contain sensitive 

information. TR16-18, 36. As such, even if Riley is interpreted as requiring reasonable 

suspicion, the facts of the case coupled with Agent Woods’s knowledge established the 

suspicion needed to support the search of the cellphone. See Ramos, -- F.Supp.3d --, 

2016 WL 3552140 (reaching same conclusion under similar facts); see also United States 

v. Martinez, 2014 WL 3671271 (S.D. Cal. July 22, 2014) (upholding agents’ warrantless 

border search of cellphone using Cellebrite technology as it was supported by reasonable 

suspicion). 

B. Motion to Suppress Statements 

 In his Motion to Suppress Statements, Defendant contends that his statement 

admitting ownership of the Azumi phone should be suppressed. The government has the 

burden of establishing, by a preponderance of the evidence, that a defendant waived his 

protection against self-incrimination under Miranda before an incriminating statement 

may be admitted in evidence. See Colorado v. Connelly, 479 U.S. 157, 158 (1986). The 

government has the burden of establishing compliance with Miranda, or if Miranda

warnings were not given, that an exception applies. See United States v. Younger, 398 

F.3d 1179, 1185 (9th Cir.2005). 

 In this case, the Government does not dispute that Defendant was under arrest and 

in custody when Agent Woods questioned him about ownership of the phone. 

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Additionally, Agent Woods does not recall if he provided Defendant with his Miranda 

warnings before or after he asked him about the cellphone. The Government argues that 

these factors are of no moment because Agent Woods’s questions about the cellphone did 

not constitute an “interrogation” for Mianda purposes. The Supreme Court has defined 

an “interrogation” as express questioning or its functional equivalent consisting of words 

or actions on the part of the police “that the police should know are reasonably likely to 

elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 

303 (1980). The Government contends that the questions by Agent Woods were not 

reasonably likely to lead to an incriminating response, but were merely standard booking 

questions intended to accomplish “a proper inventory for chain of custody purposes.” 

TR38. That argument, however, is undermined by other testimony from Agent Woods. 

Upon questioning by defense counsel, Agent Woods admitted that he was aware that drug 

trafficking organizations often communicate using cellular phones and that the phones 

are especially valuable to investigations because they may contain sensitive information. 

TR16-18, 36. Thus, he should have known that the question about ownership of the 

phone was likely to elicit an incriminating response by connecting Defendant to the 

phone and to any evidence stored on the phone. Moreover, Agent Woods recognized that 

the Defendant could have denied ownership or refused to answer whether the Azumi 

phone belonged to him, and that the answer would amount to an admission that could 

later be used against him. TR36-38. 

 This case can be analogized to the Ninth Circuit’s decision in United States v. 

Disla, 805 F.2d 1340 (9th Cir. 1986). In Disla, a search warrant was executed on an 

apartment and police discovered money and cocaine, along with several photographs of 

Disla. 805 F.2d 1340, 1342-43. One of the officers on the scene, Officer Zamora, spoke 

with several neighbors and obtained descriptions of the individuals residing at the 

apartment. Id. at 1343. Disla and his brother then drove up to the apartment and Disla 

was arrested, searched, handcuffed and taken inside the apartment. Id. Before advising 

Disla of his Miranda rights, Officer Zamora asked Disla for his name, age, address and 

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employment status. Id. at 1343. Disla told Officer Zamora that he resided at the 

apartment. Id. at 1344. Disla sought to have that statement suppressed, but his motion 

was denied by the district court and Disla was found guilty of possession of cocaine. Id. 

at 1344-45. 

 On appeal, although ultimately finding the admission of the statement harmless, 

the Ninth Circuit concluded that the question from Officer Zamora about Disla’s 

residence constituted an interrogation, explaining that “officer Zamora should have 

known that the question regarding Disla’s residence was reasonably likely to elicit an 

incriminating response” because “Zamora knew that a large quantity of cocaine and cash 

had been found at the . . . apartment and that the resident(s) of the apartment had not been 

identified.” Id. at 1347. Like the question asked by Officer Zamora, the question asked 

by Agent Woods was seemingly routine. However, both the question asked of Disla and 

the question asked of Defendant in this case, linked a suspect to potentially incriminating 

evidence. In Disla it was the cocaine in the apartment and here it was the information on 

the cellphone. Accordingly, the question constituted custodial interrogation that occurred 

either without first providing Miranda warnings or, alternatively, after Defendant had 

invoked his right to remain silent. As such, the statement of ownership must be 

suppressed. 

III. Recommendation 

 Based on the foregoing, the Magistrate Judge recommends that the District Court, 

after an independent review of the record, DENY Defendant’s Motion to Suppress 

Evidence (Doc. 39) and GRANT Defendant’s Motion to Suppress Statements (Doc. 46). 

 This Recommendation is not an order that is immediately appealable to the Ninth 

Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules 

of Appellate Procedure, should not be filed until entry of the District Court's judgment. 

However, the parties shall have fourteen (14) days from the date of service of a copy of 

this recommendation within which to file specific written objections with the District 

Court. See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of 

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Civil Procedure. Thereafter, the parties have fourteen (14) days within which to file a 

response to the objections. No replies are permitted without leave of court. If any 

objections are filed, this action should be designated case number: CR 16-0181-TUCJGZ. Failure to timely file objections to any factual or legal determination of the 

Magistrate Judge may be considered a waiver of a party's right to de novo consideration 

of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en 

banc). 

 Dated this 29th day of November, 2016. 

Honorable Jacqueline M. Rateau 

United States Magistrate Judge 

 

 

 

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