Argued: May 8, 2019
from the United States District Court for the District of
Maryland, at Baltimore. James K. Bredar, Chief District
Michael Lawlor, BRENNAN, MCKENNA & LAWLOR, CHTD.,
Greenbelt, Maryland, for Appellant.
Matthew James Maddox, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
K. Hur, United States Attorney, Ayn B. Ducao, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
MOTZ, WYNN, and RICHARDSON, Circuit Judges.
Motz wrote the majority opinion, in which Judge Wynn joined.
Judge Richardson wrote an opinion concurring in the judgment.
GRIBBON MOTZ, Circuit Judge:
April of 2015, a minor alerted law enforcement officers that
Raymond Idemudia Aigbekaen and another man had trafficked her
for sex in three mid-Atlantic states. As part of the
investigation that followed, when Aigbekaen returned to the
United States from traveling abroad, the Government seized
his MacBook Pro laptop, iPhone, and iPod at the airport and
conducted warrantless forensic searches of the data on all
three devices. The Government subsequently charged Aigbekaen
with sex trafficking and related crimes, and at the
conclusion of a nine-day trial, the jury convicted him of
appeals, arguing primarily that the warrantless forensic
searches of his digital devices violated the Fourth
Amendment. The Government counters that the searches fell
within the "border search" exception to the warrant
requirement and that, in any event, suppression is not
appropriate. We agree with Aigbekaen that the border search
exception does not extend to the challenged searches,
rendering them unconstitutional. But we agree with the
Government that the good-faith exception to the exclusionary
rule bars suppression. Accordingly, we affirm.
April 12, 2015, a sixteen-year-old girl (to whom we, like the
parties, refer pseudonymously as "L.") called 911
from a Homewood Suites hotel in Bel Air, Maryland. L.
reported that she had run away from home and was looking for
help. When an officer arrived on the scene and spoke with L.,
she claimed not to remember with whom she had traveled or
where she had been. But after some equivocation, L. disclosed
that two men, one named Marcell Greene and another of
Nigerian ethnicity named "Raymond," had transported
her around Maryland, Virginia, and Long Island, New York; had
posted ads of her on Backpage.com; and had trafficked her for
sex. L. provided phone numbers for these men and identified
Greene and Raymond Aigbekaen in hotel surveillance footage.
She also recognized images of herself from online
prostitution ads on Backpage.com. Homewood Suites records
showed that Aigbekaen had rented L.'s hotel room.
Officers searched the room and found used
law enforcement officers then sent their complete case file
to Homeland Security Investigations (HSI), an investigative
arm of the U.S. Department of Homeland Security. After
receiving the case file, HSI subpoenaed Verizon Wireless and
Backpage.com; the companies' responses confirmed that the
phone number L. had provided indeed belonged to Aigbekaen,
and that this number was listed as a contact on the
Backpage.com prostitution ads. The Backpage.com ads were also
linked to two Yahoo! email addresses, each of which contained
portions of Aigbekaen's name. HSI further uncovered
rental car and hotel records that showed Aigbekaen had
traveled to hotels in Maryland, Virginia, and Long Island.
agents learned that Aigbekaen had left the country and was
set to return through John F. Kennedy International Airport.
The agents asked U.S. Customs and Border Protection officers
to seize any electronic media devices in Aigbekaen's
possession at the airport upon his return. On May 19, 2015,
the officers honored this request and, without warrants,
seized Aigbekaen's MacBook Pro laptop computer, iPhone,
and iPod. The officers transported the devices to Baltimore,
where an HSI agent created and reviewed a forensic image of
each device. HSI did not return the devices to Aigbekaen
until June 2, 2015. The forensic search of the laptop
revealed temporary backups of Facebook Messenger
conversations between Aigbekaen and another user that
apparently related to sex trafficking.
months after the warrantless forensic searches, the
Government secured and executed search warrants for the same
MacBook Pro and iPhone, Aigbekaen's Facebook and Yahoo!
accounts, his vehicle, five additional cell phones, his DNA,
and Greene's residence. A magistrate judge also granted
the Government's application to procure cell site
location information ("CSLI") under the Stored
Communications Act ("SCA") without obtaining a
midst of these warrant and SCA applications, a grand jury
indicted Greene and Aigbekaen on six counts, all of which
related to interstate sex trafficking of L. and
transportation of her for the purpose of prostitution. Prior
to trial, Aigbekaen moved to suppress various pieces of
evidence, including (as relevant here) any evidence recovered
from the May 2015 warrantless forensic searches.
argued that the May 2015 forensic searches were
unconstitutional because they were conducted without warrants
and did not fall within the border search exception to the
warrant requirement. Aigbekaen maintained that "there
has to be a point at which the nature of the government
investigation is so separated and so divorced from anything
related to the border" that the exception becomes
inapplicable. He explained that the Government's
"general interest in enforcing [domestic] criminal
laws" does not constitute an interest justifying
"border searches." The Government responded that,
at the time of the forensic searches, it had reasonable
suspicion both that Aigbekaen had trafficked L. for sex
domestically and that he "might be bringing contraband
in the form of child pornography into the country,"
citing for the latter argument only an "allegation from
the manager of the hotel where the victim was
close of the suppression hearing, the district court
dismissed the Government's child pornography argument as
"a lot weaker" but held that under "the
traditional border search analysis," "the
circumstances of where the property was and where the person
was when the search occurred" "trump[ed]" any
need to justify the specific search. As a result, the court
found that no warrants were required for the May 2015
searches. The court further reasoned that if any
individualized suspicion was needed to justify the
"intrusive" forensic searches of Aigbekaen's
devices, the Government met this standard because HSI had
"at least" reasonable suspicion, if not probable
cause, that the warrantless searches would reveal evidence of
domestic sex trafficking.
court thus denied the suppression motion, and Aigbekaen
proceeded to trial. After considering testimony from over
twenty witnesses, a jury found Aigbekaen guilty on all six
counts. Aigbekaen timely noted this appeal.
principal argument on appeal is that the May 2015 warrantless
forensic searches of his laptop, iPhone, and iPod violated
the Fourth Amendment. Although the Government contends (and
we ultimately agree) that the good-faith exception to the
exclusionary rule requires affirmance in any event,
"when a Fourth Amendment case presents a novel question
of law whose resolution is necessary to guide future action
by law enforcement officers and magistrates, there is
sufficient reason for [a court] to decide the violation issue
before turning to the good-faith question." United
States v. Bosyk, 933 F.3d 319, 332 n.10 (4th Cir. 2019)
(alterations in original) (quoting Illinois v.
Gates, 462 U.S. 213, 264 (1983) (White, J.,
review the district court's legal conclusions de novo and
its factual findings for clear error, considering the record
evidence in the light most favorable to the Government.
Kolsuz, 890 F.3d at 141-42. Because the Government
conducted the challenged searches without warrants, it bears
the burden of proving, by a preponderance of the evidence,
that an exception to the warrant requirement applies.
United States v. Davis, 690 F.3d 226, 262 (4th Cir.
Fourth Amendment requires that governmental searches and
seizures be reasonable. In most cases, this requires a
warrant based on probable cause. See, e.g.,
Riley v. California, 573 U.S. 373, 382
(2014). "In the absence of a warrant, a
search is reasonable only if it falls within a specific
exception to the warrant requirement." Riley,
573 U.S. at 382.
such exception applies at our nation's borders, where the
Supreme Court has long recognized the federal
Government's substantial sovereign interests in
"protect[ing] . . . territorial integrity" and
national security, United States v. Flores-Montano,
541 U.S. 149, 153 (2004); blocking "the entry of
unwanted persons and effects," id. at 152;
"regulat[ing] the collection of duties," United
States v. Montoya de Hernandez, 473 U.S. 531, 537
(1985); and "prevent[ing] the introduction of
contraband," id. These Government concerns are
"at [their] zenith" at the border, whereas an
individual's "expectation of privacy is less at the
border than it is in the interior."
Flores-Montano, 541 U.S. at 152, 154. Thus,
"[a]t a border" or its "functional equivalent,
like [an] international airport . . . government agents may
conduct routine searches and seizures of persons and property
without a warrant or any individualized suspicion."
Kolsuz, 890 F.3d at 137 (internal quotation marks
this "border search" exception to the warrant
requirement is broad, it is not boundless. Even when the
exception applies, the Supreme Court has explained that
certain "highly intrusive searches" may qualify as
"'nonroutine'" and so require some level of
individualized suspicion. Flores-Montano, 541 U.S.
at 152 (quoting Montoya de Hernandez, 473 U.S. at
541 n.4). Just last year, we applied this principle in the
context of an intrusive forensic search of a cell phone at
the border. Given the "unparalleled breadth of private
information" that such a search could reveal, we held
that "a forensic search of a digital phone must be
treated as a nonroutine border search, requiring some form of
individualized suspicion" even if not a warrant.
Kolsuz, 890 F.3d at 145-46. If the border exception
applies to the May 2015 forensic searches of Aigbekaen's
devices, these searches (like the forensic searches in
Kolsuz) were sufficiently intrusive to be
"nonroutine" and so required some level of
individualized suspicion. Id. at 137.
this raises another question: Does the border exception even
apply to the May 2015 forensic searches? Phrased differently,
of what must the Government have individualized
suspicion for the border search exception to apply? Again,
precedent offers a clear answer. As the Supreme Court and
this court have repeatedly explained, "the scope of a
warrant exception should be defined by its
justifications." Id. at 143 (citing
Riley, 573 U.S. at 385-91); accord, e.g.,
Arizona v. Gant, 556 U.S. 332, 351 (2009)
("When the justifications" underlying an
exception to the warrant requirement "are absent, a
[warrantless] search . . . will be unreasonable . . .
."). That is to say, a warrant exception will not excuse
a warrantless search where applying the exception "would
untether the rule from the justifications underlying
[it]." Riley, 573 U.S. at 386 (internal
quotation marks omitted).
same limitation applies to the border search exception.
Indeed, neither the Supreme Court nor this court has ever
authorized a warrantless border search unrelated to the
sovereign interests underpinning the exception, let alone
nonroutine, intrusive searches like those at issue here.
Rather, our decision in Kolsuz teaches that the
Government may not "invoke the border exception on
behalf of its generalized interest in law enforcement and
combatting crime." 890 F.3d at 143. This restriction
makes particularly good sense as applied to intrusive,
nonroutine forensic searches of modern digital devices, which
store vast quantities of uniquely sensitive and intimate
personal information, id. at 145 (citing
Riley, 573 U.S. at 393-97), yet cannot contain many
forms of contraband, like drugs or firearms, the detection of
which constitutes "the strongest historic rationale for
the border-search exception," United States v.
Molina-Isidoro, 884 F.3d 287, 295 (5th Cir. 2018)
(Costa, J., concurring).
as we explained in Kolsuz, 890 F.3d at 143, to
conduct such an intrusive and nonroutine search under the
border search exception (that is, without a warrant), the
Government must have individualized suspicion of an offense
that bears some nexus to the border search exception's
purposes of protecting national security, collecting duties,
blocking the entry of unwanted persons, or disrupting efforts
to export or import contraband. See also United States v.
Ramsey, 431 U.S. 606, 620 (1977) ("The
border-search exception is grounded in the recognized right
of the sovereign to control, subject to substantive
limitations imposed by the Constitution, who and what may
enter the country."). If a nonroutine search becomes too
"attenuated" from these historic rationales, it
"no longer [will] fall under" the exception.
Kolsuz, 890 F.3d at 143. In such circumstances, the
search will be unconstitutional unless accompanied by a
warrant or justified under a different exception to the
these principles to the facts at hand, we can only conclude
that the warrantless forensic searches of Aigbekaen's
devices in May of 2015 lacked the requisite nexus to the
recognized historic rationales justifying the border search
exception. Of course, when Aigbekaen landed at the airport
with his MacBook Pro, iPhone, and iPod in tow, HSI agents had
not only reasonable suspicion but probable cause to suspect
that he had previously committed grave domestic
crimes. But these suspicions were entirely unmoored from the
Government's sovereign interests in protecting national
security, collecting or regulating duties, blocking
Aigbekaen's own entry, or excluding contraband. Thus,
holding the border search exception applicable here, based
simply on the Government's knowledge of domestic crimes,
would "untether" that exception from its
well-established justifications. Riley, 573 U.S. at
this result, the Government asserts that Aigbekaen's
crime "clearly was one that is the proper subject of a
border search, because [sex trafficking] is a crime
'commonly involving cross-border movements.'"
Supp. Response Br. at 13 (quoting United States v.
Caballero, 178 F.Supp.3d 1008, 1017 n.7 (S.D. Cal.
2016)). Of course, the general character of a crime may be
relevant to an officer's reasonable suspicion that it
involves a transnational component. But inherent in the
notion of individualized suspicion is some
evidentiary basis for what a specific crime does
involve in the individual case at hand, not just what it
"commonly involves" as a general matter. Here, the
Government has offered no reasonable basis to suspect that
Aigbekaen's domestic crimes had any such
must reject the district court's conclusion that a
nonroutine, intrusive search's physical and temporal
proximity to an international border "trumps
everything" under the Fourth Amendment. To be sure, the
Supreme Court has stated that routine border searches
"are reasonable simply by virtue of the fact that they
occur at the border." Ramsey, 431 U.S. at 616.
But in the context of "highly intrusive" nonroutine
border searches, Flores-Montano, 541 U.S. at 152,
the Court has explicitly struck a "balance between the
interests of the Government and the privacy right of the
individual," Montoya de Hernandez, 473 U.S. at
540; see also Riley, 573 U.S. at 385 (instructing
courts to evaluate any exception to the warrant
requirement by weighing individual privacy interests against
"legitimate governmental interests" (quoting
Wyoming v. Houghton, 526 U.S. 295, 300 (1999))).
Consistent with this balancing, we clarified in
Kolsuz that a nonroutine search's
location is not dispositive of whether the border
search exception applies; rather, it is the search's
relation to the Government's sovereign interests
that is paramount. 890 F.3d at 142-43.
"the ultimate touchstone of the Fourth Amendment is
reasonableness." Riley, 573 U.S. at 381
(internal quotation marks omitted). And on the facts of this
case, the reasonableness of requiring law enforcement to
secure a warrant before conducting an intrusive forensic
search of a traveler's digital device, solely to seek
evidence of crimes with no transnational component, is
readily apparent. By the time Aigbekaen arrived at the
airport with his devices, and prior to any searches of those
devices, HSI agents had probable cause to believe that
Aigbekaen's laptop, at least, contained evidence of
domestic sex trafficking. Indeed, in August of 2015, HSI
secured warrants to search both the MacBook Pro and the
iPhone, relying almost exclusively on evidence that was in
agents' possession before Aigbekaen arrived at the
airport in May. Given the information in its possession at
the time, it is only reasonable to expect the Government to
have procured these warrants prior to the May
contrast, it would be patently unreasonable to permit highly
intrusive forensic Government searches of travelers'
digital devices, without warrants, on bases unrelated to the
United States's sovereign authority over its borders. To
be clear, we do not question the import of the
Government's general interest in combatting crime. But we
cannot agree that this interest categorically eclipses
individuals' privacy interests in the vast troves of data
contained on their digital devices when the suspected
offenses have little or nothing to do with the border.
Supreme Court explained in Riley, "[m]odern
cell phones, as a category, implicate privacy concerns far
beyond those implicated" by physical searches.
Id. at 393. This is so because cell phones and other
modern digital devices feature "an element of
pervasiveness" that distinguishes them from physical
records; these days, "it is the person who is not
carrying a cell phone, with all that it contains, who is the
exception." Id. at 395. At the same time, these
devices have "immense storage capacity," as well as
cloud storage capabilities, which they use to collect
"in one place many distinct types of information . . .
that reveal much more in combination than any isolated
record." Id. at 393-94, 397. These include
unusually sensitive data regarding one's relationships,
personal interests and preferences, prior internet searches,
location history, and much more. Id. at 395-96. To
adopt the Government's position, we would need to hold
that it could conduct a warrantless forensic search of any