United States v. Chad Camou

Court Case Details
Court Case Opinion

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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No. 12-50598

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MERICA

Plaintiff-Appellee,

D.C. No.

v.

3:11-cr-05027-H-1

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HAD

ANIEL

AMOU

Defendant-Appellant.

OPINION

Appeal from the United States District Court

for the Southern District of California

Marilyn L. Huff, District Judge, Presiding

Argued May 7, 2013

Submitted December 3, 2014

Pasadena, California

Filed December 11, 2014

Before: Harry Pregerson and Raymond C. Fisher, Circuit

*

Judges, and James S. Gwin, District Judge.

Opinion by Judge Pregerson

*

The Honorable James S. Gwin, District Judge for the U.S. District

Court for the Northern District of Ohio, sitting by designation.

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**

SUMMARY

Criminal Law

The panel reversed the district court’s denial of a criminal

defendant’s motion to suppress images of child pornography
found on his cell phone during a warrantless search.

The panel held that the warrantless search of the cell

phone at a Border Patrol checkpoint’s security offices was not
roughly contemporaneous with the defendant’s arrest and,
therefore, not a search incident to arrest, given both the
passage of one hour and twenty minutes between arrest and
search, and the seven intervening acts between arrest and
search that signaled the arrest was over.

The panel held that the search of the cell phone is not

excused under the exigency exception to the warrant
requirement because the government failed to show exigent
circumstances
that required immediate police action, and
even if the exigencies permitted a search of the phone to
prevent the loss of call data, the search’s scope was
impermissibly overbroad.

The panel held that cell phones are not containers for

purposes of the vehicle exception to the warrant requirement,
and that the search of the defendant’s cell phone therefore
cannot be justified under that exception.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

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The panel concluded that neither the inevitable-discovery

exception to the exclusionary rule, nor the good-faith
exception
, applies.

COUNSEL

James Fife, Deputy Federal Public Defenders, San Diego,
California, for Defendant-Appellant

Alessandra P. Serano, Assistant United States Attorney, San
Diego, California, for Plaintiff-Appellee.

OPINION

PREGERSON, Circuit Judge:

Chad Camou appeals the district court’s denial of his

motion to suppress images of child pornography found on his
cell phone during a warrantless search. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We reverse.

FACTUAL & PROCEDURAL BACKGROUND

I. Camou’s Arrest and the Seizure of Camou’s Cell

Phone at 10:40 p.m.

On August 1, 2009, United States Border Patrol agents

stopped a truck belonging to Chad Camou at a primary
inspection checkpoint on Highway 86 in Westmorland,
California. Camou was driving the truck, while his girlfriend,
Ashley Lundy, sat in the passenger seat. Agents at the
checkpoint grew suspicious when Lundy did not make eye

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contact, so they asked Camou if they could open the door to
the truck. Once they opened the door, the agents saw
Alejandro Martinez-Ramirez (Martinez-Ramirez), an
undocumented immigrant, lying on the floor behind the
truck’s front seats. Consequently, at about 10:40 p.m., agents
arrested and handcuffed Camou, Lundy, and Martinez-
Ramirez. At the same time, agents also seized Camou’s truck
and a cell phone found in the cab of the truck. Agents then
moved Camou, Lundy, and Martinez-Ramirez into the
checkpoint’s security offices for booking.

II. Agents Processed, Booked, and Interviewed Camou at

the Security Offices

Once at the checkpoint’s security offices, Border Patrol

agents processed and booked Camou and Lundy. At some
point during the booking process, Border Patrol Agent
Andrew Baldwin inventoried Camou’s cell phone as “seized
property and evidence.”

Agents then began to interview Camou and Lundy.

Lundy was given Miranda warnings. It is unclear whether
Camou was given Miranda warnings or whether he said
anything to the agents at this point. Neither Camou nor
Lundy asked for an attorney.

During Lundy’s initial interview with Border Patrol

Agent Richard Walla, Lundy waived her Miranda rights and
explained that, before she and Camou picked up Martinez-
Ramirez, Camou had received a phone call from Jessie, a.k.a.
“Mother Teresa.” “Mother Teresa” arranged for Camou to
pick up Martinez-Ramirez in Calexico, California and
transport him to either Palm Desert, California or Coachella,
California. During Lundy’s interview, Camou’s cell phone

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rang several times. The caller identification screen on the
phone displayed the phone number that Lundy had identified
as belonging to “Mother Teresa.” Agents asked Camou if the
cell phone belonged to him. Camou replied, “Yes.”

Border Patrol Agents Jason Masney and Ciudad Real

attempted to further interview Martinez-Ramirez, Camou, and
Lundy. Martinez-Ramirez told the agents that he had been in
the car for about forty minutes and that Camou had planned
to take him to Los Angeles. Camou invoked his right to
remain silent. Lundy, meanwhile, agreed to answer more
questions. She told the agents that she and Camou had been
smuggling undocumented immigrants about eight times per
month for about nine months. She explained that Camou
would receive phone calls from smugglers on his cell phone
both before and after passing the Highway 86 checkpoint.

III.

Warrantless Search of Camou’s Cell Phone at
12:00 a.m.

At 12:00 a.m., one hour and twenty minutes after

Camou’s arrest, Agent Walla searched Camou’s cell phone.
In his subsequent report, Agent Walla claimed he was looking
for evidence of “known smuggling organizations and
information related to the case.” Agent Walla did not assert
that the search was necessary to prevent the destruction of
evidence or to ensure his or anyone else’s safety.

Agent Walla searched the call logs of the cell phone and

discovered several recent calls from “Mother Teresa.” Agent
Walla closed the call logs screen and opened the videos
stored on the phone’s internal memory. He saw several
videos that appeared to be taken near the Calexico, California
Port of Entry. He then closed the videos and opened the

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photographs, which were also stored on the phone’s internal
memory. He “scrolled quickly through about 170 of the
images before stopping. Of the images he viewed, about 30
to 40 were child pornography. Walla was disturbed by the
images and stopped reviewing the contents of the phone.”

After stopping the search, Agent Walla called U.S.

Immigration and Customs Enforcement, the Imperial County
Sheriff’s Office, and the FBI to pursue child pornography
charges against Camou. Assistant United States Attorney
John Weis at the El Centro Sector Prosecutions Office did not
pursue alien smuggling charges against Camou because Weis
decided that the smuggling case against Camou “did not meet
prosecution guidelines.” Weis informed Border Patrol agents
of his decision the same day Camou’s cell phone was
searched by Agent Walla.

Several days later, on August 5, 2009, the FBI executed

a federal warrant to search Camou’s cell phone for child
pornography. Pursuant to the warrant, the FBI found several
hundred images of child pornography on the cell phone.

IV.

District Court Proceedings

A grand jury indicted Camou for possession of child

pornography in violation of 18 U.S.C. § 2252(a)(4)(B).
Camou moved the district court to suppress the child
pornography images found on his cell phone, arguing that the
warrantless search of his cell phone at the checkpoint’s
security offices violated his Fourth Amendment rights. The
district court denied Camou’s motion. The district court
found that the search of the phone was a lawful search
incident to arrest and, even if the search was unconstitutional,

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the good faith and inevitable discovery exceptions to the
exclusionary rule were satisfied.

Camou entered a conditional guilty plea to possession of

child pornography in violation of 18 U.S.C. § 2252(a)(4)(B).
Camou was sentenced to thirty-seven months in prison
followed by five years of supervised release. Camou is
currently serving his prison sentence. Camou appeals the
district court’s denial of his motion to suppress.

STANDARD OF REVIEW

We review de novo the district court’s denial of a motion

to suppress. United States v. Song Ja Cha, 597 F.3d 995, 999
(9th Cir. 2010). We review the district court’s underlying
factual findings for clear error. Id. We review de novo the
application of the good faith and inevitable discovery
exceptions to the exclusionary rule. United States v. Krupa,
658 F.3d 1174, 1179 (9th Cir. 2011).

DISCUSSION

Camou argues that the warrantless search of his cell

phone was unconstitutional because the search was not
incident to arrest, and no other exceptions to the warrant
requirement apply. Camou also argues that the exclusionary
rule bars the admissibility of the images found on his phone.
We agree.

I. Search Incident to Arrest

A search incident to a lawful arrest is an exception to the

general rule that warrantless searches violate the Fourth
Amendment. The exception allows a police officer making

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a lawful arrest to conduct a search of the area within the
arrestee’s “immediate control,” that is, “the area from within
which [an arrestee] might gain possession of a weapon or
destructible evidence.” Chimel v. California, 395 U.S. 752,
763 (1969) (internal quotation marks omitted), abrogated on
other grounds by Arizona v. Gant
, 556 U.S. 332, 344 (2009).

The first requirement of a search incident to arrest is that

the search be limited to the arrestee’s person or areas in the
arrestee’s “immediate control” at the time of arrest. Gant,
556 U.S. at 339; Chimel, 395 U.S. at 763; United States v.
Turner
, 926 F.2d 883, 887 (9th Cir. 1991). The “immediate
control” requirement ensures that a search incident to arrest
will not exceed the rule’s two original purposes of protecting
arresting officers and preventing the arrestee from destroying
evidence: “If there is no possibility that an arrestee could
reach into the area that law enforcement officers seek to
search, both justifications for the search-incident-to-arrest
exception are absent and the rule does not apply.” Gant,
556 U.S. at 339.

1

The second requirement of a search incident to arrest is

that the search be spatially and temporally incident to the
arrest. See United States v. Chadwick, 433 U.S. 1, 15 (1977),
abrogated on other grounds by California v. Acevedo,

1

One exception to the immediate control requirement, however, occurs

in the vehicle context. Where the search incident to arrest is of a vehicle,
the Supreme Court has held: “Although it does not follow from Chimel,
we also conclude that circumstances unique to the vehicle context justify
a search incident to lawful arrest when it is ‘reasonable to believe
evidence relevant to the crime of the arrest might be found in the
vehicle
.’” Gant, 556 U.S. at 343 (emphasis added) (quoting Thornton v.
United States
, 541 U.S. 615, 632 (2004) (Scalia, J., concurring in
judgment
)).

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500 U.S. 565, 580 (1991); United States v. Hudson, 100 F.3d
1409, 1419 (9th Cir. 1996). The Supreme Court has held that
“warrantless searches of luggage or other property seized at
the time of an arrest cannot be justified as incident to that
arrest . . . if the search is remote in time or place from the
arrest
. . . .” Chadwick, 433 U.S. at 15 (emphasis added).
We have interpreted the temporal requirement to mean that
the search must be “roughly contemporaneous with the
arrest.” United States v. Smith, 389 F.3d 944, 951 (9th Cir.
2004) (per curiam).

We have summed up the two general requirements of a

valid search incident to arrest as follows: “The determination
of the validity of a search incident to arrest in this circuit is a
two-fold inquiry: (1) was the searched item ‘within the
arrestee’s immediate control when he was arrested’; (2) did
‘events occurring after the arrest but before the search ma[k]e
the search unreasonable’?” United States v. Maddox,
614 F.3d 1046, 1048 (9th Cir. 2010) (quoting United States
v. Turner
, 926 F.2d 883, 887 (9th Cir. 1992)).

We need not decide whether the government meets the

first requirement of search incident to arrest because the
government cannot show that the second requirement—that
the search be spatially and temporally incident to the
arrest—is met.

Agent Walla’s search of Camou’s cell phone was too far

removed in time from Camou’s arrest to be incident to that
arrest. As stated above, we have interpreted the temporal
requirement to mean that the search must be “roughly
contemporaneous with the arrest.” Smith, 389 F.3d at 951.
To determine whether this contemporaneity requirement is
met, we have stated that the focus is “upon whether the arrest

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and search are so separated in time or by intervening acts that
the latter cannot be said to have been incident to the former.”
Id. In some cases, we have “relied on the number of minutes
that passed between the arrest and the search. . . . In other
cases, we have relied on a more impressionistic sense of the
flow of events that begins with the arrest and ends with the
search.” United States v. Caseres, 533 F.3d 1064, 1073 (9th
Cir. 2008).

In Caseres, we found that a search of the arrestee-

defendant’s car was not incident to arrest for two independent
reasons: (1) the “arrest was not spatially related to the
vehicle” because Caseres, the arrestee, was a block and a half
away from his car at the time of his arrest; and (2) “the search
. . . was too far removed in time from the arrest to be
considered as truly incidental to [the] arrest.” Id. at 1072,
1074. We noted that, while it was unclear from the record
how much time passed between arrest and search, the district
court reasonably found the search was conducted “well after”
the arrest. Id. at 1074. In holding that the search was too
temporally removed from the arrest, we reasoned that the
“arrest and the search were separated not only by substantial
time, but also by a string of intervening events that signaled
that the exigencies of the situation had dissipated.” Id. The
intervening events we noted were: police questioning of
Caseres, conversations between police, and police moving
back and forth between the site of the arrest and Caseres’s
car. Id.

In Maddox, we similarly held that the warrantless search

of an arrestee-defendant’s car was not incident to arrest, but
in so holding we relied solely on intervening events between
the arrest and search. 614 F.3d at 1048. In Maddox, after
Maddox ignored the officer’s request to exit his car following

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a stop for reckless driving, the officer seized Maddox’s key
chain and cell phone and threw them on the front seat. Id. at
1047. The officer arrested and handcuffed Maddox and
placed him in the back of the patrol car. Id. He then returned
to Maddox’s car, reached inside, and grabbed the key chain
and cell phone. Id. The key chain included a metal vial with
a screw top. Id. The officer unscrewed the metal vial’s top
and discovered methamphetamine inside. Id. We held that
the intervening event of Maddox being handcuffed and placed
in the back of a patrol car rendered the search unreasonable.
Id. at 1048–49; see also United States v. Vasey, 834 F.2d 782,
787–88 (9th Cir. 1987) (holding that the warrantless search of
Vasey’s car was not incident to arrest where the search
occurred thirty to forty-five minutes after Vasey was arrested;
Vasey was handcuffed and placed in the back of the patrol car
before the search; and officers “conducted several
conversations with Vasey” between arrest and search); United
States v. Monclavo-Cruz
, 662 F.2d 1285, 1288 (9th Cir. 1981)
(holding that the warrantless search of an arrestee’s purse at
the station house, about an hour after she was arrested next to
her car, was not sufficiently contemporaneous with the arrest
to be incident to arrest).

2

Here, Agent Walla’s search of Camou’s cell phone was

not roughly contemporaneous with Camou’s arrest and,

2

We briefly note that, by citing to United States v. Johns, 469 U.S. 478

(1985), the government incorrectly conflates two different search and
seizure doctrines: search incident to arrest and the vehicle exception to
the warrant requirement. As Johns did not concern a search incident to
arrest, Johns’s holding allowing a three-day delay in searching seized
items does not help the government’s search incident to arrest argument.
We revisit the government’s Johns argument in the next section when
analyzing whether the vehicle exception to the warrant requirement
applies.

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therefore, was not incident to arrest. First, one hour and
twenty minutes passed between Camou’s arrest and Agent
Walla’s search of the cell phone. This delay is longer than
the thirty to forty-five minutes in Vasey and the one hour in
Monclavo-Cruz; and the searches in those two cases were
deemed not sufficiently contemporaneous with arrest.

Second, a string of intervening acts occurred between

Camou’s arrest and the search of his cell phone that make the
one hour and twenty minute delay even more unreasonable:
(1) Camou and Lundy were restrained with handcuffs; (2)
Camou and Lundy were moved from the checkpoint area to
the security offices; (3) Camou and Lundy were processed;
(4) agents moved Camou’s cell phone from the vehicle into
the security offices, inventoried the phone as a seized item,
and moved the phone into the interview rooms; (5) Camou
and Lundy were interviewed as part of the booking process;
(6) Martinez-Ramirez was interviewed; and (7) Agents
Masney and Real interviewed Lundy for a second time and
tried to interview Camou, who invoked his right to remain
silent. These intervening acts include the same sort of
intervening acts in Caseres—police questioning the arrestee,
conversations between police, and police moving between the
site of the arrest and the site of search—as well as the
intervening acts of Maddox and Vasey—police handcuffing
the arrestee and placing him under police control. And here
we also have the additional intervening acts of police booking
the arrestee, police questioning the material witness,
Martinez-Ramirez, and police moving the item to be
searched––i.e., Camou’s cell phone––from the site of the
arrest to the security offices.

Given both the passage of one hour and twenty minutes

between arrest and search and the seven intervening acts

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between arrest and search that signaled the arrest was over,
we conclude that the search of the phone was not roughly
contemporaneous with arrest and, therefore, was not a search
incident to arrest.

II. Two Other Exceptions to the Warrant Requirement:

the Exigency Exception & the Vehicle Exception

Several of the government’s arguments more properly fall

under the exigency and vehicle exceptions. For the reasons
explained below, we conclude that neither of these exceptions
is met.

A. The Exigency Exception

Under the exigency exception, officers may make a

warrantless search if: (1) they have probable cause to believe
that the item or place to be searched contains evidence of a
crime, and (2) they are facing exigent circumstances that
require immediate police action. See Warden, Md.
Penitentiary v. Hayden
, 387 U.S. 294, 298–301 (1967)
(upholding a warrantless search where “the exigencies of the
situation made that course imperative”). We have defined
exigent circumstances as “those circumstances that would
cause a reasonable person to believe that entry [or search] . . .
was necessary to prevent physical harm to the officers or
other persons, the destruction of relevant evidence, the escape
of the suspect, or some other consequence improperly
frustrating legitimate law enforcement efforts.” United States
v. McConney,
728 F.2d 1195, 1199 (9th Cir. 1984) (en banc),
overruled on other grounds by Estate of Merchant v.
Comm’r
, 947 F.2d 1390, 1392–93 (9th Cir. 1991). To be
reasonable, a search under this exception must be limited in
scope so that it is “strictly circumscribed by the exigencies

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which justify its initiation.” Mincey v. Arizona, 437 U.S. 385,
393 (1978) (internal quotation marks omitted); see also
United States v. Reyes-Bosque
, 596 F.3d 1017, 1029 (9th Cir.
2010) (“In order to prove that the exigent circumstances
doctrine justified a warrantless search, the government must
[also] show that . . . the search’s scope and manner were
reasonable to meet the need.”).

After we submitted this case, the Supreme Court granted

the petition for writ of certiorari in Riley v. California, 134 S.
Ct. 999 (2014), on January 17, 2014, to answer the following
question: “Whether evidence admitted at petitioner’s trial was
obtained in a search of petitioner’s cell phone that violated
petitioner’s Fourth Amendment rights.” We then vacated
submission of this case pending the Supreme Court’s decision
in Riley. On June 25, 2014, the Supreme Court issued its
unanimous decision in Riley v. California, 134 S. Ct. 2473
(2014), holding that “a warrant is generally required before
. . . a search [of a cell phone], even when a cell phone is
seized incident to arrest.” Id. at 2493. The Court went on,
however, to note that “other case-specific exceptions may still
justify a warrantless search of a particular phone.” Id. at
2494. Specifically, the exigency exception “could include the
need to prevent the imminent destruction of evidence in
individual cases, to pursue a fleeing suspect, and to assist
persons who are seriously injured or are threatened with
imminent injury.” Id.

Even if there was probable cause to search Camou’s cell

phone, we conclude that the government failed to meet the
second prong of the exigency exception: exigent
circumstances that require immediate police action.

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The government argues that “the volatile nature of call

logs and other cell phone information with the passing of
time” presented an exigent circumstance. Riley forecloses
this argument. There, the Court determined that “once law
enforcement officers have secured a cell phone, there is no
longer any risk that the arrestee himself will be able to delete
incriminating data from the phone.” Riley, 134 S. Ct. at 2486.
And although “information on a cell phone may nevertheless
be vulnerable to . . . remote wiping,” there is “little reason to
believe that [this] problem is prevalent.” Id. And, “as to
remote wiping, law enforcement is not without specific
means to address the threat. Remote wiping can be fully
prevented by disconnecting the phone from the network.” Id.
at 2487. When “the police are truly confronted with a ‘now
or never’ situation—for example, circumstances suggesting
that a defendant’s phone will be the target of an imminent
remote-wipe attempt—they may be able to rely on exigent
circumstances
to search the phone immediately.” Id (internal
quotation marks omitted). Here, the search of Camou’s cell
phone occurred one hour and twenty minutes after his arrest.
This was not an “imminent” “now or never situation” such
that the exigency exception would apply. Moreover, the
record does not indicate that Agent Walla believed the call
logs on Camou’s cell phone were volatile and that a search of
Camou’s phone was necessary to prevent the loss of recent
call data.

And even if we were to assume that the exigencies of the

situation permitted a search of Camou’s cell phone to prevent
the loss of call data, the search’s scope was impermissibly
overbroad. The search in this case went beyond contacts and
call logs to include a search of hundreds of photographs and
videos stored on the phone’s internal memory. Thus, Agent
Walla exceeded the scope of any possible exigency by

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extending the search beyond the call logs to examine the
phone’s photographs and videos. See State v. Carroll,
778 N.W.2d 1, 12 (Wis. 2010) (holding that the exigency
exception justified the answering of an incoming call on the
defendant’s cell phone but did not justify a search of images
stored on the phone “because there were no exigent
circumstances at the time requiring [the officer] to review the
gallery or other data stored on the phone. That data was not
in immediate danger of disappearing before [the officer]
could obtain a warrant.”). We therefore conclude that the
search of Camou’s cell phone is not excused under the
exigency exception to the warrant requirement.

B. The Vehicle Exception

Another exception to the Fourth Amendment’s warrant

requirement is the vehicle exception. Carroll v. United
States
, 267 U.S. 132, 153–54 (1925). Under the vehicle
exception, officers may search a vehicle and any containers
found therein without a warrant, so long as they have
probable cause. California v. Acevedo, 500 U.S. 565, 580
(1991); United States v. Ross, 456 U.S. 798, 821–22, 825
(1982). Unlike search incident to arrest, the vehicle
exception is not rooted in arrest and the Chimel rationales of
preventing arrestees from harming officers and destroying
evidence. Instead, the vehicle exception is motivated by the
supposedly lower expectation of privacy individuals have in
their vehicles as well as the mobility of vehicles, which
allows evidence contained within those vehicles to be easily
concealed from the police. Carroll, 267 U.S. at 153;
California v. Carney, 471 U.S. 386, 390–91 (1985).

As the Supreme Court noted in Arizona v. Gant, the

permissible scope of a vehicle exception search is “broader”

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than that of a search incident to arrest: “If there is probable
cause to believe a vehicle contains evidence of criminal
activity, [Ross] authorizes a search of any area of the vehicle
in which the evidence might be found. . . . Ross allows
searches for evidence relevant to offenses other than the
offense of arrest.” 556 U.S. 332, 347 (2009) (citing Ross,
456 U.S. at 820–21). Moreover, unlike searches incident to
arrest, searches of vehicles and containers pursuant to the
vehicle exception need not be conducted right away. United
States v. Johns
, 469 U.S. 478, 487–88 (1985). So long as the
officers had probable cause to believe the car had evidence of
criminal activity when they seized a container from inside the
car, they may delay searching it. Id. Delays, however, must
be “reasonable in light of all the circumstances.” United
States v. Albers
, 136 F.3d 670, 674 (9th Cir. 1998) (upholding
as reasonable a seven- to ten-day delay in viewing videotapes
and film seized from a houseboat).

We assume that the agents had probable cause to believe

Camou’s truck contained evidence of criminal activity once
they saw Martinez-Ramirez lying down behind the seats of
the truck. If the vehicle exception applied in this case,
pursuant to Johns and Albers, the one hour and twenty minute
delay between the seizure of Camou’s cell phone and the
search of its contents would not invalidate the search. We
hold, however, that cell phones are not containers for
purposes of the vehicle exception.

In New York v. Belton, the Supreme Court defined

“container” as “any object capable of holding another object”
and explained that in the vehicle context, containers
“include[] closed or open glove compartments, consoles, or
other receptacles located anywhere within the passenger
compartment, as well as luggage, boxes, bags, clothing, and

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the like.” 453 U.S. 454, 460 n.4 (1981), overruled on other
grounds by Gant
, 556 U.S. at 350–51. In United States v.
Ross
, the Supreme Court provided “paper bags, locked
trunks, lunch buckets, and orange crates” as examples of
containers. 456 U.S. 798, 821–22 (1982).

Then, in Riley, the Supreme Court examined the

definition of “container” as it would apply to cell phones and
the search incident to arrest exception. The Court found:

Treating a cell phone as a container whose
contents may be searched incident to an arrest
is a bit strained as an initial matter. But the
analogy crumbles entirely when a cell phone
is used to access data located elsewhere, at the
tap of a screen.

134 S. Ct. 2473, 2491 (2014) (citation omitted).

The Court then addressed the government’s proposal that

cell phone searches incident to arrest be analyzed under the
Gant standard imported from the vehicle context:

[A] Gant standard would prove no practical
limit at all when it comes to cell phone
searches. In the vehicle context, Gant
generally protects against searches for
evidence of past crimes. In the cell phone
context, however, it is reasonable to expect
that incriminating information will be found
on a phone regardless of when the crime
occurred. . . . The sources of potential
pertinent information are virtually unlimited,
so applying the Gant standard to cell phones

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would in effect give police officers unbridled
discretion to rummage at will among a
person’s private effects.

Id. at 2492 (internal quotation marks omitted).

Given the Court’s extensive analysis of cell phones as

“containers” and cell phone searches in the vehicle context,
we find no reason not to extend the reasoning in Riley from
the search incident to arrest exception to the vehicle
exception. Just as “[c]ell phones differ in both a quantitative
and a qualitative sense from other objects that might be kept
on an arrestee’s person,” so too do cell phones differ from
any other object officers might find in a vehicle. Id. at 2489.
Today’s cell phones are unlike any of the container examples
the Supreme Court has provided in the vehicle context.
Whereas luggage, boxes, bags, clothing, lunch buckets,
orange crates, wrapped packages, glove compartments, and
locked trunks are capable of physically “holding another
object,” see Belton, 453 U.S. at 460 n.4, “[m]odern cell
phones, as a category, implicate privacy concerns far beyond
those implicated by the search of a cigarette pack, a wallet, or
a purse,” Riley, 134 S. Ct. at 2488–89. In fact, “a cell phone
search would typically expose to the government far more
than the most exhaustive search of a house.” Id. at 2491
(emphasis in original).

We further note that the privacy intrusion of searching a

cell phone without a warrant is of particular concern in the
vehicle exception context because the allowable scope of the
search is broader than that of an exigency search, or a search
incident to arrest. Whereas exigency searches are
circumscribed by the specific exigency at hand and searches
incident to arrest are limited to areas within the arrestee’s

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immediate control or to evidence relevant to the crime of
arrest, vehicle exception searches allow for evidence relevant
to criminal activity broadly. If cell phones are considered
containers for purposes of the vehicle exception, officers
would often be able to sift through all of the data on cell
phones found in vehicles because they would not be
restrained by any limitations of exigency or relevance to a
specific crime.

We therefore conclude that cell phones are non-containers

for purposes of the vehicle exception to the warrant
requirement, and the search of Camou’s cell phone cannot be
justified under that exception.

III.

Inevitable Discovery and the Good Faith
Exceptions to the Exclusionary Rule

The government argues that, even if the warrantless

search of Camou’s cell phone was unconstitutional, the
photographs found as a result of the search should not be
suppressed because the inevitable discovery and good faith
exceptions to the exclusionary rule are met. We disagree
with the government and find that neither exception is met.

A. Inevitable Discovery

The exclusionary rule allows courts to suppress evidence

obtained as a result of an unconstitutional search or seizure.
Mapp v. Ohio, 367 U.S. 643, 655 (1961); Weeks v. United
States
, 232 U.S. 383, 393 (1914). But if the government can
establish by a preponderance of the evidence that the
unlawfully obtained information “ultimately or inevitably
would have been discovered by lawful means,” the
exclusionary rule will not apply. Nix v. Williams, 467 U.S.

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431, 444 (1984). We have “never applied the inevitable
discovery exception so as to excuse the failure to obtain a
search warrant where the police had probable cause but
simply did not attempt to obtain a warrant.” United States v.
Young
, 573 F.3d 711, 723 (9th Cir. 2009) (quoting United
States v. Mejia
, 69 F.3d 309, 320 (9th Cir. 1995)). As we
reasoned in Mejia, “[i]f evidence were admitted
notwithstanding the officers’ unexcused failure to obtain a
warrant, simply because probable cause existed, then there
would never be any reason for officers to seek a warrant.”
69 F.3d at 320.

Here, the government argues that a warrant to search

Camou’s cell phone for evidence of smuggling activity
inevitably would have been sought and approved, and
therefore that the inevitable discovery doctrine applies. This
argument fails for two independent reasons.

First, the government has not proved by a preponderance

of the evidence that it would have applied for a warrant to
search Camou’s phone for evidence of alien smuggling
activity. In fact, the record points to the opposite conclusion:
that no search warrant would have been sought and thus that
no search warrant would have been approved. Camou was
ultimately charged only with possession of child
pornography
, not with alien smuggling. Border Patrol agents
knew the day Agent Walla searched Camou’s cell phone that
Camou would not be charged with alien smuggling. The
Sector Prosecutions Office informed the agents that day that
“prosecution was declined” in the smuggling case against
Camou because the case “did not meet prosecution
guidelines.” Because the reasonable conclusion from the
record is that no search warrant would have been sought, the

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inevitable discovery exception to the exclusionary rule is not
satisfied.

Second, and more importantly, Mejia governs this case.

By asking this court to conclude that the inevitable discovery
exception applies here because a search warrant would have
issued, the government is asking us to “excuse the failure to
obtain a search warrant where the police had probable cause
but simply did not attempt to obtain a warrant.” Mejia,
69 F.3d at 320. Under Mejia, this is impermissible and the
inevitable discovery exception to the exclusionary rule is not
satisfied.

B. Good Faith

When the officer executing an unconstitutional search

acted in “good faith,” or on “objectively reasonable reliance,”
the exclusionary rule does not apply. See United States v.
Leon
, 468 U.S. 897, 922 (1984). The burden of
demonstrating good faith rests with the government. United
States v. Kow
, 58 F.3d 423, 428 (9th Cir. 1995). The test for
good faith is an objective one: “whether a reasonably well
trained officer would have known that the search was illegal
in light of all the circumstances.” United States v. Herring,
555 U.S. 135, 145 (2009) (internal quotation marks omitted).

In Herring, the Supreme Court applied the good faith

exception to an officer’s arrest and search incident to arrest of
the defendant. The Court held that the officer had reasonably
relied on the county clerk’s assertion that the defendant had
an active arrest warrant. Id. at 149–50. The clerk based her
assertion on another law enforcement employee’s negligent
bookkeeping entry, which falsely indicated that the defendant
had an active arrest warrant. Id. In holding that the good

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faith exception applied, the Court reasoned that “the error was
the result of isolated negligence attenuated from the arrest”
and that “an error that arises from nonrecurring and
attenuated negligence is . . . far removed from the core
concerns that led us to adopt the rule in the first place.” Id. at
138, 144. The Court further stated that “[t]o trigger the
exclusionary rule, police conduct must be sufficiently
deliberate that exclusion can meaningfully deter it, and
sufficiently culpable that such deterrence is worth the price
paid by the justice system.” Id. at 144.

We conclude the good faith exception does not apply

here. The governing law at the time of the search made clear
that a search incident to arrest had to be contemporaneous
with the arrest. See, e.g., United States v. Hudson, 100 F.3d
1409, 1419 (9th Cir. 1996). The government has not met its
burden to prove that a reasonably well-trained officer in
Agent Walla’s position could have believed that the search of
Camou’s cell phone one hour and 20 minutes after Camou’s
arrest was lawful. The government does not advance any
arguments except that in searching the phone Agent Walla
was not acting “through ‘reckless or deliberate’ officer
misconduct,” and that Herring controls.

But Herring is distinguishable. Herring dealt with an

officer’s reliance on a county clerk’s assertion that the
defendant had an outstanding warrant, which was in turn
based on another law enforcement employee’s negligence.
The officer was not negligent himself; the negligence was
two degrees removed from the officer and thus amounted to
“isolated negligence attenuated from the arrest.” 555 U.S. at
137. In Herring, as in its prior good faith jurisprudence, the
Supreme Court found the good faith exception was met
because the officer reasonably relied on an external source,

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which turned out to be erroneous. Id.; see also Arizona v.
Evans
, 514 U.S. 1, 14 (1995) (holding that good faith
exception was met where police reasonably relied on
erroneous information concerning an arrest warrant in a
database maintained by judicial employees); Illinois v. Krull,
480 U.S. 340, 358–60 (1987) (extending good faith exception
to searches conducted in reasonable reliance on subsequently
invalidated statutes); Leon, 468 U.S. at 922 (holding that the
officer’s reasonable reliance on a warrant later held to be
invalid met the good faith exception).

The Supreme Court has never applied the good faith

exception to excuse an officer who was negligent himself,
and whose negligence directly led to the violation of the
defendant’s constitutional rights.

3

Here, the government fails

to assert that Agent Walla relied on anyone or anything in
conducting his search of Camou’s cell phone, let alone that
any reliance was reasonable. The government instead only
asserts that by searching the phone, Agent Walla was not
acting “recklessly[,] or deliberately” misbehaving. In this
case, the good faith exception cannot apply.

CONCLUSION

For the foregoing reasons, we REVERSE the district

court’s denial of Camou’s motion to suppress.

3

In fact, because “objectively reasonable” and “negligent” are mutually

exclusive, the only way to reconcile the “objectively reasonable reliance”
rule established in Leon with Herring is to conclude that the officer who
executed the unconstitutional search or seizure cannot have been the
negligent actor. Herring should be read as holding instead that when an
officer reasonably relies on incorrect information that was the result of
another individual’s “isolated” and “attenuated” negligence, the good faith
exception applies.

Referenced Cases

  1. United States v. Song Ja Cha
  2. 95 Cal. Daily Op. Serv. 8329 v. Jario A. Mejia
  3. United States v. Mark Albers Jim T. Freegard David Moran Erin Moran David Pierce Carmel Presse Lyle Presse J. Jeff Schabs Mark Sheehan Kirk Smith David M. Strobel Steve Van Horn
  4. United States v. Reyes-Bosque
  5. United States v. Rafaela Monclavo-Cruz
  6. United States v. Maddox
  7. United States v. Don Michael Hudson
  8. United States v. Young
  9. United States v. Kory Ray Smith
  10. United States v. Stephen Kow Helen Kim Noi Soo
  11. United States v. Krupa
  12. United States v. Michael Allen Vasey
  13. United States v. Caseres
  14. Estate of William Davidson Merchant v. Commissioner Internal Revenue Service
  15. United States v. Winston Bryant McConney
  16. United States v. Jessie Lee Turner
  17. Warden, Md. Penitentiary v. Hayden
  18. United States v. Leon
  19. Thornton v. United States
  20. United States v. Ross
  21. California v. Carney
  22. Mincey v. Arizona
  23. Riley v. California
  24. Weeks v. United States
  25. Arizona v. Gant
  26. New York v. Belton
  27. Illinois v. Krull
  28. Chimel v. California
  29. California v. Acevedo
  30. Arizona v. Evans
  31. United States v. Chadwick
  32. United States v. Johns
  33. State v. Carroll