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Date: 03-19-2019
Case Style:
United States of America v. Donald Wanjiku
Case Number: 18-1973
Judge: Rovner
Court: United States Court of Appeals for the Eighth Circuit on appeal from the Northern District of Illinois (Cook County)
Plaintiff's Attorney: Christopher Vincent Parente
Defendant's Attorney: Joshua G. Herman
Description:
Donald Wanjiku pled guilty to one
count of transportation of child pornography in violation of 18
U.S.C. § 2252A, but he retained his 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, laptop and external hard drive
2 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 of eighteen and fifty or sixty
(4) returning from the Philippines, Thailand, or Cambodia
(5) traveling alone (6) with a prior 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 travelers before they arrived at
O’Hare. Using government databases1 and publicly available
1 The investigators used a DHS system 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,” which 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 public Facebook page associated
with that address. The person in the profile picture
1 (...continued)
including the National Criminal Information 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, immigration status, and email addresses and
phone numbers used to book travel.
2 CBP Officer Adam Toler testified at the suppression hearing that he could
not recall when the arrest had occurred 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 evaluates 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 was 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 candidly 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 Wanjiku had approximately fifty to one
hundred Facebook friends, and approximately half were younger. When
pressed by the court at the suppression hearing to describe the ages of the
friends, Toler responded, “I’m just guessing at age. Looked not in their
forties.” R. 59, Tr. at 51. He later added, “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 investigators selected twenty-three or twentyfour
individuals for secondary inspection from the two to three thousand
passengers arriving on the targeted flights 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 they 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 the
secondary inspector that Wanjiku was “evasive for questioning.”
At the secondary inspection 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 inspection, something Toler had
never seen a passenger do before. 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 seemed 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 he
6 No. 18-1973
was visiting. Because Wanjiku had reported on a Customs
Declaration form that he was not 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 with 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 his 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 two large bags and single carryon
bag. He asked if the bags belonged to Wanjiku and whether
Wanjiku himself had packed them. Wanjiku responded
affirmatively 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 agent then opened the bags. They
set aside Wanjiku’s cell phone, laptop and portable hard drive
for later inspection. In one bag, Toler found a pocket full of
receipts, including multiple receipts 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 Wanjiku
No. 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 country and these receipts were
from those trips. That answer heightened Toler’s suspicions
both because Wanjiku had previously given the address of the
friend as the place he stayed and because Toler deemed it
unusual to stay at the same hotel twice in the span of a week if
a person is traveling around the 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, putting Toler at risk of injury.
When asked about the syringes, Wanjiku explained that he had
medication 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 turned
his 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 told
8 No. 18-1973
him that everything was searchable 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 through the pictures. Within a
minute, he found several pictures of Wanjiku lying in bed with
another man who was in his underwear. 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 turned 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 drive without modifying or destroying
any of the information contained on the device. A preview,
Gerlock testified, involved looking only at allocated space on
the device, essentially items catalogued by the device’s
operating system in files. In contrast, a full forensic examination
of a device would copy every 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 not determine the age of the individual
pictured was credible. Notably, though, the district court did not rely on the
presence of these photos in determining whether the agents possessed
reasonable suspicion to search Wanjiku’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 software 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 nor
encrypted. Bowers used the EnCase software to view photographs
and videos stored on the 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 portrayed and terms known to the
agents to be associated with child pornography. For example,
one file was labeled “pthc-15yogirlteaching12yoboys.” Gerlock
explained 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
7 Agent Gerlock explained that electronic devices sometimes track the time
and date that a person last looked at a photo and that by manually scrolling
through the device, the agents might inadvertently alter that kind of data.
Gerlock also testified that cell phones sometimes contain 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 approximately 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 the 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 confining
the 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 phone itself. This removable “micro
SD” memory card was neither password-protected nor
encrypted.
The agents lacked the necessary equipment to preview the
laptop at the airport. Because child pornography had already
been discovered on two of Wanjiku’s electronic devices, the
laptop was taken to an HSI lab where it was previewed
approximately one week later. The laptop preview took under
three 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 photographs 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 pornography 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 photographs and videos discovered on
Wanjiku’s electronic devices during these warrantless searches
at the border, he was charged with one count of transportation
of child pornography, in violation 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 electronic 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 were 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 inspection 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 basis for obtaining the warrant. If the
initial searches withstand constitutional 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 agents at the time they searched
Wanjiku’s devices was sufficient to trigger a reasonable
suspicion that he was involved in the 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 probable cause. In the alternative,
if the applicable standard is reasonable suspicion, he contends
that the facts known to the officers 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 appropriate standard for border
searches of electronic devices, that standard was met here. In
reviewing a district court’s denial 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. The defendant argues that nothing
less than a warrant authorizes a search of electronic devices at
the border. The government asserts that it may conduct these
searches without any particularized suspicion at all. In the end,
though, we need not adopt either of these positions, and
indeed may avoid entirely the thorny 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 allowing 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 is
not 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 which 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, located 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 international 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 that, 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 electronically 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 Court 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 merchandise 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 canal. 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 withdrew 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 until
No. 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 wastebasket 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 in the interior. 473 U.S. at 537-38.
“[N]ot only is the expectation of privacy less at the border than
18 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 much more 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 longstanding, 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, border agents had seized thirtyseven
kilograms of marijuana from a car entering the United
States from Mexico. The drugs 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 took 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 government’s interest in preventing
the entry of unwanted persons and 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-destructive search of the contents of
electronic devices at the border—we have confronted border
searches 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 reasonable
20 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, even if these actions were “nonroutine,”
customs agents possessed reasonable suspicion to
support them). We decided Johnson a decade before the
Supreme Court rejected the application of the reasonable
suspicion standard to the dismantling of a car’s gas tank at the
border. But in the Seventh Circuit, Johnson set the high point at
reasonable suspicion for searches 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, Wanjiku nonetheless argues that the
legal landscape for the search of cell phones changed with Riley
and Carpenter. He argues that those cases demonstrate that cell
phones present unparalleled privacy 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 treatNo.
18-1973 21
ment for the searches of electronic 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 officer 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 posed 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 into 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 misleading shorthand; many of
these devices are in fact minicomputers 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 “are 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 arrestee 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 incident to arrest.” 573 U.S. at 401.
In Carpenter, the Court assessed whether the government
“conducts a search under the Fourth Amendment when it
accesses 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 cell 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 particular movements but potentially
revealing familial, political, professional, religious and sexual
associations. 138 S. Ct. at 2217. Because cell site data is maintained
by wireless carrier companies 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 additional complication that not all cell
phone data is stored on the device itself, but may be stored in the “cloud,”
remote servers that serve as extensions of the device’s internal memory.
Riley, 573 U.S. at 397–98. None of the images 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 supported 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 granted
heightened protection to cell phone data, neither case addresses
searches at the border where the government’s
interests are at their zenith, and neither case addresses data
stored on other electronic devices 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 person
or item in question had entered into our country from out-
15 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 possessed probable cause to search Wanjiku’s cell phone.
Moreover, the child pornography recovered from Wanjiku’s cell phone was
not stored on the phone itself but was stored on a micro SD card inserted
into the phone, a memory device that 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 defendant 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 existence 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 phone 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 when it imposes no such requirement
for a search of other personal 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) (forensic 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 it acted in good-faith reliance on
the longstanding and expansive authority of the government
to search persons and their effects at the border without a
26 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 of a 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 non-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 Wanjiku 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 they 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 police
practice, 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) (evidence 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 evidence
No. 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 it did not raise its good faith
claim in the district court but argues that this failure should not
be taxed against it. According to the government, it had no
reason to argue good faith reliance 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 government 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 issues 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 was
28 No. 18-1973
sufficient to preserve [a defendant’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 that the law was unsettled, and
contended that there was no guiding 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 Carpenter unequivocally
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 should
No. 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 reasonably 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 at the moment that the agents
decided to search his devices. Agent Toler conceded that he
had decided to search the contents of Wanjiku’s devices before
he landed at the airport. But the 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 of the 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 seizure in light of the particular
circumstances judged against an objective standard). That
objective test is applied to “the facts available to the officer at
30 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 in a mask and showed that
he 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) that
No. 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. Officer
Toler 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 search 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 not rely in assessing reasonable suspicion. 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. Although Wanjiku also contests this
manual, non-forensic search of his phone, that search occurred at a time
when Agent Toler already possessed all of the facts 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 considerations 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 explanations for some of the facts on
which the officers relied, “reasonable 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 Wanjiku 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-destructive
No. 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 what level of suspicion is required
(if any) for searches of electronic 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.
Outcome: AFFIRMED.
Plaintiff's Experts:
Defendant's Experts:
Comments: