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United States v. Aigbekaen

United States Court of Appeals, Fourth Circuit

November 21, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,

          Argued: May 8, 2019

          Appeal from the United States District Court for the District of Maryland, at Baltimore. James K. Bredar, Chief District Judge. (1:15-cr-00462-JKB-2)


          Michael Lawlor, BRENNAN, MCKENNA & LAWLOR, CHTD., Greenbelt, Maryland, for Appellant.

          Matthew James Maddox, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

         ON BRIEF:

          Robert K. Hur, United States Attorney, Ayn B. Ducao, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

          Before MOTZ, WYNN, and RICHARDSON, Circuit Judges.

          Judge Motz wrote the majority opinion, in which Judge Wynn joined. Judge Richardson wrote an opinion concurring in the judgment.

          DIANA GRIBBON MOTZ, Circuit Judge:

         In 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 these crimes.

         Aigbekaen 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.


         On 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; 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 Homewood Suites records showed that Aigbekaen had rented L.'s hotel room. Officers searched the room and found used condoms.[1]

         Local 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; 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 prostitution ads. The 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.

         HSI 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[2] of the laptop revealed temporary backups of Facebook Messenger conversations between Aigbekaen and another user that apparently related to sex trafficking.

         A few 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 warrant.

         In the 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.

         Aigbekaen 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 recovered."

         At the 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.[3]

         The 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.


         Aigbekaen's 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., concurring)).

         We 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. 2012).


         The 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).[4] "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.

         One 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 omitted).

         Although 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.[5] 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.

         But 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).

         The 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).

         Accordingly, 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 warrant requirement.

         Applying 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 386.

         Resisting 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 transnational component.

         We also 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.

         Moreover, "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 searches.[6]

         In 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.

         As the 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 traveler's ...

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