Petitions of the week
By Kalvis Golde
on 23 December 2024
at 12:49 p.m
The petitions of the week column highlights some of them cert applications recently filed with the Supreme Court. A list of all petitions we see is available here.
Many of us carry our entire lives with us on our cell phones. Recognizing this, the Supreme Court has held that while police may generally search a person’s belongings during an arrest without a warrant, the Fourth Amendment requires officers to obtain a warrant before looking through their cell phone or obtaining their phone records. This week, we highlight petitions asking the court to consider, among other things, whether cellphones are similarly entitled to greater Fourth Amendment protection than other property at the U.S. border.
Marcos Mendez returned to the United States in 2016 when his passport was flagged at immigration at Chicago’s O’Hare International Airport. A U.S. Customs and Border Protection officer asked him to step aside for further screening. This wasn’t Mendez’s first stop at immigration. Two years earlier, officials had interviewed him after a trip home from Mexico, where he claimed he had been kidnapped, robbed of his electronic devices and told to leave the country.
The earlier encounter was one of the reasons for the flag on Mendez’s passport. The other was a 2010 arrest for child pornography that resulted in a misdemeanor conviction for endangering a child. Those facts, combined with the fact that Mendez was a man traveling alone from Ecuador — considered a potential “source country” for child trafficking by the government — led the CBP system to label him as a potential criminal or security risk.
During the encounter, the CBP officer asked Mendez for his cell phone and password. An initial scroll through the phone’s camera roll revealed what appeared to be sexual photographs of children. The officer then ran the phone through a software program designed to digitally extract photos and other data, which revealed dozens more suspicious photographs.
CBP agents released Mendez but kept his cell phone. Shortly after leaving the airport, Mendez removed the contents of his phone and drove to Mexico.
After further investigation, Mendez was charged with child pornography and extradited to the United States. Before trial, Mendez sought to have the evidence from his cell phone excluded, on the grounds that the search of his cell phone had violated the Fourth Amendment.
The trial judge concluded that the CBP agents did not need a search warrant because they already had reason to suspect that Mendez might be involved in criminal activity. That’s why federal prosecutors were able to present the photos from his phone at trial.
Mendez eventually pleaded guilty and was sentenced to 25 years in prison.
The US Court of Appeals for the 7th Circuit agreed that the search of Mendez’s cell phone was legal. It relied on the so-called “border search exception” to the Fourth Amendment — which, the appeals court explained, gives immigration officers almost unlimited leeway to search a person’s belongings at the border, regardless of whether they are suspected of a crime. The Court of Appeal concluded that this exception applies with equal force to mobile phones.
IN Mendez v. United StatesMendez is asking the justices to grant review and reverse the 7th Circuit. He argues that cell phones at the border pose a new issue that has divided the appeals courts. In some circuits, a warrant is never required to search a cell phone at the border; in others, a warrant is not needed as long as the officers have reason to suspect criminal activity; and in still others, officers can manually open and scroll through a cell phone without reasonable suspicion, but cannot conduct more extensive searches, such as using software to download a phone’s contents. “With over 40 million Americans traveling abroad each year, and virtually all of them carrying an electronic device, this Court should address these competing concerns, reconcile the approach to be used by border officials on a daily basis, and update the border search doctrine to address our current digital age,” Mendez writes.
The government is urging the judges to reject Mendez’s petition. By characterizing the issue as one of location, not technology, the government argues that increased security risks at the border destroy even the extraordinary privacy interests of the contents of a cell phone.
Furthermore, the government disagrees that the appeal courts are divided. No appeals court requires a warrant to search a phone at the border, the government explains, nor do any courts prevent CBP officers who suspect criminal activity from opening a phone and scrolling through it. Therefore, the government reasons, the flag on Mendez’s passport would have made the search of his cell phone legal regardless of where it took place.
A list of this week’s featured petitions is below:
Nivar Santana v. Garland
24-46
Question: What standard of proof applies when a non-citizen previously admitted to the United States seeks to obtain relief from deportation by having his status adjusted to that of a lawful permanent resident.
Jacobsen v. Montana Democratic Party
24-220
Problems: (1) What standard applies when the Supreme Court reviews a state court’s decision invalidating state legislation under the Constitution’s election clause, whether that decision exceeds the bounds of ordinary judicial review; and (2) whether the Montana Supreme Court’s split decision below exceeded the bounds of ordinary judicial review by invalidating under the Montana Constitution two Montana election integrity provisions—one setting the voter registration deadline at 12 noon the day before Election Day, and another requires the Secretary of State to issue regulations prohibiting the collection of paid absentee ballots.
Mendez v. United States
24-302
Problems: (1) Whether the government can conduct a warrantless search of the electronic contents of a person’s cell phone at the border; and (2) whether the government may conduct a suspicious search of the electronic contents of a person’s cell phone at the border.
Patterson v. Baz
24-390
Problems: (1) Whether parties to a proceeding under the Hague Convention on the Civil Aspects of International Child Abduction may waive the right to seek return elsewhere by agreeing to resolve custody disputes exclusively in the United States; and (2) whether parties to a proceeding under the Hague Convention should be held to a decision to waive, waive, or establish rights, including asserting that a child’s habitual residence is outside the United States, in the same manner as any other party would in an ordinary civil action brought in US court.
Davis v. Smith
24-421
Question: Whether the U.S. Court of Appeals for the 6th Circuit exceeded its authority under the Antiterrorism and Effective Death Penalty Act by concluding that “any fair-minded jurist would agree” that Ohio courts violated the Constitution by refusing to exclude testimony from a victim for an attempted murder identify her attacker.
