Illegal Cell Phone Search Invalidates Child Porn Discovery

The government cannot use evidence of child pornography discovered on the cell phone of a man who tried to smuggle an alien across the Mexican border in 2009, because the search amounted to an illegal warrantless inspection.

The 9th U.S. Circuit Court of Appeals held Thursday the 30 to 40 child porn images found on the phone must be suppressed in the prosecution of Chad D. Camou for possession of child pornography.

Border agents stopped Camou in Westmoreland, California and discovered an alien hiding in the rear seat of Camou’s truck.  The agents later searched through Camou’s cellphone and argued it was an effort to investigate an alien smuggling ring and search for phone numbers.

Instead, they found the child porn and this led to obtaining a search warrant for Camou’s phone, where hundreds more image of child pornography were found.

He pled guilty with the condition he retain the right to challenge the cell phone search on appeal.  He is currently serving a 36-month prison sentence, stemming from the charges.

Camou had asked the trial judge in San Diego to dismiss the charges claiming the cell phone search violated his Fourth Amendment rights.  His request was denied by U.S. District Judge Marilyn Huff.

The search of an arrestee does not violate the Fourth Amendment if it is a lawful arrested and done to search the area in the arrestee’s immediate control to prevent destruction of evidence or acquiring a weapon, said Judge Harry Pregerson.  In addition, the search must be close in time to the arrest, to make the search reasonable, he sid.

In Camou’s case, his phone was not searched for nearly 90 minutes after his arrest and therefore was “not roughly contemporaneous” with his arrest, Pregerson wrote.

Other factors weighed against the search of the phone, according to Pregerson.  Camou and his girlfriend, who was a passenger in the truck, were handcuffed, they were removed from the checkpoint area, they were processed and his phone was seized and inventoried and moved into the interview rooms.

And importantly, for future cases, the appeals court held that although vehicle “containers” may be searched for contraband, the panel held “that cell phones are not containers for purposes of the vehicle exception” to the Fourth Amendment.  A glove compartment, consoles, luggage, boxes, bags and even clothing may be containers, but not a cell phone, according to the court.

“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,” Pregerson said.

Joining Pregerson were judges Raymond Fisher and visiting Judge James Gwin of Ohio.

Case:  U.S. v. Camou, No. 12-50598


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