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January 30, 2015
  U.S. v. Camou - Ninth Circuit
Headline: 9th Circuit reversed district court's denial of motion to suppress images of child pornography due to warrantless search by police.

Area of Law: Criminal law

Issue Presented: Whether defendant's motion to suppress images of child pornography found on his cell phone during a warrantless search should have been granted.

Brief Summary: Camou, the defendant, and a co-defendant were arrested while smuggling an undocumented immigrant. Camou's truck was seized, as well as a cell phone found inside the cab of the truck. Approximately one hour and twenty minutes after Camou's arrest and after interviewing the co-defendant, a Border Patrol agent conducted a warrantless search of Camou's cell phone and found numerous images of child pornography. Several days later the United States Attorney's Office executed a federal search warrant for Camou's cell phone and found hundreds of images of child pornography.

During criminal proceedings, Camou made a motion to suppress the images found on his cell phone but the district court denied the motion as being a lawful search incident to arrest as well as being covered by the good faith and inevitable discovery exceptions to the exclusionary rule. Camou the entered a conditional guilty plea and now appeals the denial of his motion to suppress.

The Ninth Circuit panel held that the search was not a lawful search incident to arrest given the one hour and twenty minute time delay between the arrest and the search combined with the number of intervening events between the arrest and the search. Furthermore, given the lack of evidence suggesting any imminent destruction of evidence or danger to the Border Patrol agents, there were no exigent circumstances justifying the warrantless search. The panel also declined to find cell phones to be "containers" within the vehicle exception given the qualitative difference between cell phones and anything precedent has been found to be a container in the vehicle context. In addition, the panel refused to allow the inevitable discovery exception to excuse a failure to obtain a search where police had probable cause yet made no attempts to obtain a warrant. Lastly, the good faith exception was found to be inapplicable here as it was the agent's own negligence that led to the violation of Camou's rights.

Given the reasoning above, the panel reversed the district court's denial of Camou's motion to suppress.

Extended Summary: In 2009, while attempting to smuggle an undocumented immigrant, Camou, a co-defendant and the undocumented immigrant were arrested and Border Patrol agents seized Camou's truck and a cell phone found in the cab of the truck. Camou was moved to the checkpoint's security office for booking and the cell phone was inventoried as "'seized property and evidence'." During the interview process co-defendant said that Camou received a phone call from a specific number prior to picking up the undocumented immigrant. Camou's cell phone rang several times during the interview, all from the number the co defendant had previously identified. Camou admitted that the cell phone belonged to him but then invoked his right to remain silent.

Later, approximately one hour and twenty minutes after Camou's initial arrest, an agent searched the cell phone's call logs, videos, and pictures in an attempt to find evidence of "'known smuggling organizations and information related to the case.'" The search, which the agent did not claim was necessary to prevent the destruction of evidence or for anyone's safety, revealed 30-40 pictures of child pornography. Four days later, based on the agent's findings, the United States Attorney's Office executed a federal search warrant for Camou's cell phone and found several hundred images of child pornography.

Camou was indicted for possession of child pornography and moved to suppress the child pornography images found on his cell phone. The district court denied the motion, reasoning that the images were found during a lawful search incident to arrest. The district court further reasoned that even if the search was unconstitutional, that the good faith and inevitable discovery exceptions to the exclusionary rule were satisfied. Camou then entered a conditional guilty plea to possession of child pornography and was sentenced to thirty-seven months in prison and five years of supervised release. Camou is still incarcerated and appeals the denial of his motion to suppress.

The Ninth Circuit panel reviewed de novo the district court's denial of Camou's motion to suppress as well as the application of the good faith and inevitable discovery exceptions to the exclusionary rule and reviewed the district court's factual findings for clear error.

The purpose behind the search incident to lawful arrest exception is to protect arresting officers and to prevent the destruction of evidence. As such, any such search must 1) be limited to the arrestee's person or areas within the arrestee's immediate control at the time of arrest, and 2) be spatially and temporally incident to the arrest. The Ninth Circuit interprets the second requirement to require the search to be more or less at the same time to the arrest and panel ruled that the search of the cell phone did not meet this requirement. Precedent established that searches can be found not to be incident to arrest due the time between the search and arrest and/or intervening events between the two.

Here, the time delay was longer than in either of the cited cases where searches were not sufficiently contemporaneous with arrest. In addition, there were numerous intervening events between the arrest and the search: 1) Camou was handcuffed; 2) Camou was moved from the checkpoint to the security offices; 3) Camou was processed; 4) the cell phone was moved from the truck to the security offices, processed, and moved into the interview rooms; 5) Camou was booked and interviewed; 6) the undocumented immigrant and the co-defendant were interviewed; and 7) agents interviewed co-defendant again and tried to interview Camou at which point he invoked his right to remain silent. Based on the passage of time and the number of intervening events, the panel held that the search of the phone was not contemporaneous with arrest and as such did not qualify as a search incident to arrest.

Regarding the government's exigency exception argument, the panel held that the government failed to prove exigent circumstances that required immediate police action. A recent Supreme Court case, Riley v. California, 134 S. Ct. 2473, 2493 (2014), held that " 'a warrant is generally required before . . . a search [of a cell phone], even when a cell phone is seized incident to arrest.'" This does not preclude "'other case specific exceptions [to] still justify a warrantless search of a particular phone.' Id. at 2494."

Here, however, there was no evidence to suggest that there was any " 'now or never situation' " that would cause such an exigency exception to apply. This is supported by the Border Patrol agent's belief that the call logs were not volatile and that searching Camou's phone was not necessary to prevent a loss of evidence. Even if the facts had supported a search of Camou's phone, the search's scope was overbroad by including photos and videos in addition to the contacts and call logs. As such, the panel held that the search of Camou's phone was not excused by the exigency exception here.

Addressing the vehicle exception argument, the panel held that cell phones are not containers for purposes of the vehicle exception. In Riley, the Supreme Court rejected the idea that cell phones be treated as "container[s]" as it would apply to the search incident to arrest exception. 134 S. Ct. 2473, 2491 (2014). The Riley Court also rejected analyzing cell phone searches under a vehicle search context due to the "'unbridled discretion'" it would give officers to search a person's private effects. Id. at 2492. Based on this extensive analysis, the panel extended he reasoning in Riley from the search incident to arrest exception to the vehicle exception." This is justified by the fact that cell phones are so different from anything that has been found to be a container in the vehicle context as well as having far broader privacy implications. Based on this reasoning, the panel held "cell phones are non-containers for purposes of the vehicle exception to the warrant requirement" and the search of Camou's phone was not justified under that exception.

Lastly the panel addressed the government's arguments that inevitable discovery and good faith exceptions to the exclusionary rule apply here. Inevitable discovery was not found to apply here since the evidence does not support that the government sought to search Camou's phone for evidence of alien smuggling given that the agents were informed the same day as Camou's arrest that prosecution was declined in the smuggling case. More importantly, it is impermissible to excuse a failure to obtain a search where police had probable cause yet made no attempts to obtain a warrant. Similarly, the good faith exception fails to apply here because at the time of the search the law required that a search incident to arrest be made contemporaneously to the arrest. Given that nothing indicates the well trained agent here could have believed that a search one hour and twenty minutes after the arrest was lawful, the panel held that the agent's personal negligence led to the violation of Camou's rights and as such the good faith exception would not apply.

For the reasons listed above, the Ninth Circuit panel reversed the district court's denial of Camou's motion to suppress.

Panel: Judges Pregerson, Fisher, and District Judge J.S. Gwin by designation

Date of Issued Opinion: December 11, 2014

Docket Number: 3:11-cr-05027-H-1

Decided: Reversed

Case Alert Author: Seth DuMouchel

Author of Opinion: Judge Pregerson

Case Alert Circuit Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 01/30/2015 05:30 PM     9th Circuit  

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