Border Phone Searches Redefined: What the Ninth Circuit's Landmark Ruling Actually Means

The Cano Decision: Why This Is Not a "Win" for Privacy—But It Is a Game Changer for Defense Lawyers

In my 25 years as a federal prosecutor in the Southern District of New York, I handled dozens of border search cases, and I can tell you that the government's position was always the same: the border is a constitutional exception zone where the Fourth Amendment barely applies. For decades, courts had treated the border as a place where the government could inspect anything—luggage, vehicles, and eventually digital devices—without any suspicion whatsoever, relying on the "border search exception" established in United States v. Ramsey (1977) and codified in 19 U.S.C. § 1581(a) and § 1582. The Ninth Circuit's en banc ruling in United States v. Cano, No. 22-50031 (9th Cir. 2024), does not overturn that exception, and it does not require a warrant for border device searches. What it does is far more subtle and, frankly, far more useful for criminal defense attorneys: it forces the government to articulate particularized reasonable suspicion before it can conduct a "forensic search" of a digital device. I want to be very clear about what this means in practice because I have already seen prosecutors and defense attorneys alike misreading the holding. The key distinction in Cano is between a manual search—where an agent picks up a phone, swipes through recent photos, or looks at the call log—and a forensic search, which involves connecting the device to specialized hardware or software like Cellebrite or GrayKey to extract deleted data, app contents, or system files. The Ninth Circuit held that the latter, but not the former, requires reasonable suspicion. This is not a privacy paradise; it is a procedural hurdle that, if properly exploited, can unravel a significant portion of the government's digital evidence in border-related prosecutions.

The Reasonable Suspicion Standard for Digital Forensics: What Agents Must Now Document Before Plugging In the Cable

The practical effect of Cano is that every border agent who intends to perform a forensic extraction on a traveler's phone or laptop must now articulate specific, articulable facts that would lead a reasonable person to suspect that the device contains evidence of a crime or contraband. This is not a high bar—reasonable suspicion is far lower than probable cause, as the Supreme Court reiterated in Terry v. Ohio (1968) and United States v. Sokolow (1989)—but it is a bar that the government has historically not had to clear at the border. In my experience, border agents are trained to document "border security concerns" in boilerplate language: "the traveler appeared nervous," "the itinerary was unusual," "the traveler had a criminal record." Under Cano, those generalized observations will not suffice. The agent must connect the dots: why did nervousness suggest digital contraband? What about the itinerary was inconsistent with lawful travel? Did the traveler make a specific statement that suggested knowledge of illegal activity? The Ninth Circuit explicitly rejected the government's argument that the "totality of the circumstances" at the border could include the mere fact that the traveler was entering the United States from a known source country for drugs or child pornography. Instead, the court held that the reasonable suspicion analysis must focus on the individual traveler and the specific device, not on generalized border-security objectives. This is a critical shift. I have already seen defense attorneys in the Central District of California file suppression motions citing Cano where the government's only evidence was a CBP officer's report stating, "Subject was traveling from Mexico, and I observed that his phone had a cracked screen." Under the old regime, that was enough. Under Cano, that is nothing. The government must now produce evidence that the agent had a particularized basis to believe the phone itself—not the traveler, not the travel pattern, but the phone—contained evidence of a crime. That is a heavy lift for agents who are accustomed to connecting a phone to a Cellebrite unit as a matter of routine.

Strategic Implications for Suppression Motions: How to Turn the Cano Holding Into a Winning Fourth Amendment Argument

For defense attorneys, Cano is not just a doctrinal development; it is a tactical weapon that must be wielded with precision. The first step in any border-device-search case is to obtain the CBP or HSI report of inspection and the forensic extraction report. Under Federal Rule of Criminal Procedure 16(a)(1)(E), the government must produce these documents if they are material to preparing the defense. I recommend filing a motion for discovery of all "border search documentation" within 14 days of indictment, specifically requesting: (1) the agent's narrative report of the initial encounter; (2) any written or recorded justification for the forensic search; (3) the chain-of-custody log for the device; and (4) the forensic extraction report showing what data was accessed and when. Once you have these documents, you evaluate whether the government can satisfy the Cano standard. Look for the following deficiencies: Was the forensic search conducted before the agent documented any suspicion? Did the agent rely on a "border security" checkbox on a form rather than articulating specific facts? Did the agent testify at the suppression hearing that the search was "routine" or "standard procedure"? If any of these red flags appear, you have a viable suppression argument. I have seen cases where the government's entire justification for a forensic search was that the defendant had a prior conviction for drug trafficking—five years old—and was returning from Thailand. Under Cano, that stale and generalized information does not create reasonable suspicion that the device currently contains evidence of a crime. The Ninth Circuit was explicit: the suspicion must be contemporaneous with the search and must relate to the device, not the traveler's history. This is where I see the most potential for suppression. If the forensic search was illegal, then all evidence derived from that search—including child pornography, drug ledgers, or communications with co-conspirators—must be suppressed as fruit of the poisonous tree under Wong Sun v. United States (1963). However, be careful: the government may argue that the evidence would have been inevitably discovered through a subsequent warrant or that the agents had independent probable cause. You must attack those arguments head-on by showing that the forensic search was the but-for cause of the discovery and that no warrant was obtained until after the search had already revealed the incriminating data.

The Geographic Limitation and the Circuit Split: Why Cano Only Helps Defendants in the Ninth Circuit—and What to Do If You Are Elsewhere

One of the most important things I tell clients and colleagues is that Cano is binding only in the nine states of the Ninth Circuit: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. If your case is in the Second Circuit (New York, Connecticut, Vermont), the Fifth Circuit (Texas, Louisiana, Mississippi), or the Eleventh Circuit (Florida, Georgia, Alabama), the law is still governed by pre-Cano precedent, which generally allows forensic border searches without any suspicion. In the Eleventh Circuit, for example, United States v. Vergara (2023) held that border agents may conduct a forensic search of a cell phone without reasonable suspicion, relying on the Supreme Court's decision in United States v. Flores-Montano (2004), which upheld suspicionless searches of vehicles at the border. The Eleventh Circuit explicitly rejected the distinction between manual and forensic searches that the Ninth Circuit later adopted. This creates a clear circuit split that the Supreme Court may eventually resolve, but for now, your defense strategy must be circuit-specific. If you are outside the Ninth Circuit, you should still raise a Cano-style argument, but you must frame it as a request for the court to adopt the Ninth Circuit's reasoning, not as binding precedent. Cite the Fourth Amendment's text, the Supreme Court's decision in Riley v. California (2014)—which recognized that digital devices are fundamentally different from physical containers—and argue that the border search exception cannot justify the "digital strip search" that a forensic extraction represents. In the Fifth Circuit, I have seen defense attorneys successfully argue that even if reasonable suspicion is not required, the government must at least show that the forensic search was not "destructive" or "highly intrusive," drawing on Flores-Montano's distinction between routine and non-routine searches. This is a harder argument to win, but it preserves the issue for appeal and may lead to a favorable plea negotiation. The government hates litigating novel Fourth Amendment issues, especially when the Ninth Circuit has already signaled that the law is changing. Use that leverage.

If you or someone you know is facing federal charges based on evidence obtained from a border search of a digital device, the time to act is now. The Cano decision has created a narrow but powerful window for suppression, but that window closes quickly once the forensic extraction report is filed and the grand jury returns an indictment. I have spent decades on both sides of the federal criminal justice system, and I know that the government will fight tooth and nail to avoid suppression of digital evidence. You need a defense attorney who understands not just the Fourth Amendment doctrine, but the practical mechanics of how border searches are conducted, how CBP officers document their actions, and how to cross-examine a government forensic examiner on the stand. Contact my office today for a confidential consultation. We will review the search documentation, identify any gaps in the government's reasonable suspicion analysis, and build a suppression motion that leverages every advantage the Ninth Circuit has given us. Your digital privacy—and your freedom—may depend on it.