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Fighting Juvenile Transfers:
From Legal Challenges to Mitigation Presentation
Additional Materials
Slide Presentation 2
JDA Law Primer for ACLU 28
Motion to Dismiss and Suppress Evidence 33
Fighting Juvenile Transfers:
From Legal Challenges to Mitigation
Wednesday, September 27, 2017
U.S. Courthouse
Brooklyn, New York
Betsy A. Biben, ACSW, LICSW
Chief, Office of Rehabilitation & Development
Public Defender Service for D.C.
(202) 824-2328
Gangs Yesterday and Today
Gangs of the 1920’s
1920 Gang Violence
NEVER disclose gang membership
or even association
The Legal Team should advise their clients to NEVER
disclose gang membership or even association (not
a gang member, but on the periphery, or a
“prospect”) to anyone, not even people at school,
non-profits, etc.
How deeply involved in a gang is your client
Where does client live? If client doesn’t live at home with family (at all) then most likely they are living somewhere facilitated by the gang. What does client do with his time? If client isn’t at school or at work, or both, chances are he is spending time with the gang. Who does client perceive as the authority in his life? When bad things happen - to client and their loved ones – if he do not trust law enforcement or other adult authority figures - chances are he is go to the gang to get help with retribution -- that’s how kids think.
Identity Development and Social
DevelopmentNeed for Acceptance
Egocentricity
Relationships with Authority figures
Need for Acceptance
Need of belonging – good, bad, or ugly
MS 13 often did not grow up with their parents
Doesn’t mean you can reject their family, even if they
do
Trying on new roles to figure out who they are &their
next steps will determine years of their lives
The way you ask questions – patiently, without
intensity, open-ended will determine your relationship
Egocentricity
Adults don’t understand me so,
I’m not listening
Until they can trust you, they aren’t hearing a word
you’re saying
But, they are watching you like a hawk to see what
you are really saying with our body language
Relationships with Authority Figures
Adults are overwhelming to young – we talk too
much & listen too infrequently
We boss them around
We don’t trust them so they don’t trust us
Direct eye contact culturally uncomfortable – best
not to use it until he’s ready and don’t push him
Best to visit solo, at least at first & tell youth
when/why you are coming in pairs
Cognitive Development
Cognitive Development
Keep questions simple with one thought per sentence
LISTEN, STOP TALKING and LISTEN – it will save you time
Use names & places to keep your sentences clear and simple
Using negatives statements makes kids think you are trying to get them to answer your way --- a successful police tactic
Only way to go home is say what they want
They believe they can always take back what they say
They can’t see magnitude of situation
Remember, they really do get confused easily and are easily lead
Adolescents are Fairness Fanatics
As part of their identify development they are intolerant of anything that seems unfair or arbitrary
Don’t be fooled or misinterpret their need for fairness as uncooperative or defiant
You will close them down if you try to rush though your agenda let alone talk about their personal information in front of others – think cell block
“It shouldn’t be like that” - court process is unfair, lack of faith and trust in defender
Procedural Justice - people care more about how they are treated than about actual legal outcomes. By explaining statutes and court
Suggestibility
They want to please adults and will leave parts of events out
if they think you will be disappointed
And the police say they can go home
Believe they can always take back what I said
Can’t see magnitude of situation
They are likely to leave out feelings of what lead up to the
event
You need to reassure him that you will not be disappointed in
him, you are his ADVOCATE
Graham & Lowry, 2004; Spencer et
al., 2006
Violence poses a complex series of threats to
resilience for Black males, including aggression
as an adaptive response to deal with the
victimization, which may lead to arrest and
reinforces negative stereotypes.
Lieber man & Van Horn, 2004
While other children are growing emotionally, the
child coping with trauma is distracted from
normal developmental tasks and is occupied with
sadness and feeling powerless. Trauma causes
disturbances of emotional regulation, social
relationships, and attachment.
Affects of Trauma
Halts development
Stops the ability to think and hear others
Floods the young person with anger & fear
Depression fills waking and sleeping
Depressed children and youth become dependant on others
Aggression is a major sign of trauma – losing ones ability to
use words, express feelings = action. The more
aggressive the deeper the trauma
Don’t make the mistake of only seeing their behaviors
problems
Strategies for Successful
InterviewingInterviewing
Explain who you are and why you're there in a couple different ways
with clear, short sentences then turn to your client and LISTEN
Motivational, strength - based approach to your client. He's the
expert about his life, not you, though expressing himself isn't easy at his
age and w his experience, too much of which could be deep in trauma.
Let him tell his story without interruption. Follow your client's lead.
Keep calm with open body language. Infrequently you can ask for a
rewind if too confused
Be supportive, ask open ended ?s and stay positive comments.
”Why” is judging your client. Take that word out of your vocabulary.
Clarify points you may have missed or misinterpreted.
Client Connections
Finding and Reaching Out to Client
Connections
Family – here & outside country
Gang Liaison/Outreach
Counselor
Community/Agency Social
Workers
School staff
Correctional Officers
Articles from home land, risks of
migration, his/her stories
Decree 717 was created in response to
Trump's statements about deporting alleged gang members en masse – mass incarceration upon return creates a deportation-to-prison pipeline.
Last week - House passes Comstock bill targeting immigrant members of MS-13 gang
Devastating Immigration Bills in US
and Abroad
Our Careers Demand More of Us
Judges expect more from us now –
complex cases
Fortunately, they are allowing you to
hire mitigation experts: Wiggins, ABA
Capital Cases Miller, Graham, ABA local
laws
Mitigation Experts are an integral part of
your Team. They been training on
working with gangs, the poorest of the
poor, the most disenfranchised, the
persons with mental illnesses
It’s Our Life’s Work – contact LAS,
NLADA, or me – others here this
evening?
Books/articles & leading expert:
Leading Expert of Latin Kings - David Brotherton, Professor John Jay
[email protected] 212-237-8694 (12 books, volumes of articles)
Reymundo Sanchez – My Bloody Life: The Making of a Latin King
- Once a King, Always a King
Luis Rodriguez - Always Running : La Vida Loca: Gang Days in L.A
Piri Thomas – Down These Mean Streets (old book, good for history)
Latin Kings the NY Times has a series of articles
https://www.nytimes.com/topic/organization/latin-kings
A radical approach to the problem of gang violence. ... a professor in the
anthropology department at John Jay College of Criminal Justice .... and
criminal-justice experts
https://www.newyorker.com/magazine/2009/06/22/dont-shoot-2
http://www.nytimes.com/2013/07/14/magazine/what-does-it-take-to-stop-
crips-and-bloods-from-killing-each-other.html
https://global.oup.com/ushe/product/gangsters-without-borders-
9780199859061?cc=us&lang=en& An Ethnography of a Salvadoran Street
Gang (chart inside that depicts a typical day in the life of a gang member)
General Standards
The Juvenile Delinquency Act (JDA), 18. U.S.C. § 5033, provides that
“[w]henever a juvenile is taken into custody for an alleged act of juvenile
delinquency, the arresting officer shall immediately advise such juvenile of his
legal rights, in language comprehensive to a juvenile[.]” The statute further
requires the arresting officer to “immediately notify the Attorney General and the
juvenile’s parents, guardian, or custodian of such custody.” Id. Further, “[t]he
arresting officer shall also notify the parents, guardian, or custodian of the rights of
the juvenile and of the nature of the alleged offense.” Id. When a juvenile asserts
that his rights under the JDA were violated, the court must determine: 1) whether
the JDA was violated; 2) whether the juvenile’s Due Process rights were violated;
and 3) if the violation did not run afoul of Due Process, whether the violation was
harmless beyond a reasonable doubt. United States v. Doe, 862 F.2d 776, 779 (9th
Cir. 1988). The Government has the burden of showing that it complied with the
JDA. Id. The determination of voluntariness of a confession and legal issues under
the JDA are reviewed de novo. Micky v. Ayer, 606 F.3d 1223, 1233 (9th Cir. 2010)
(voluntariness reviewed de novo); United States v. Jose D.L., 453 F.3d 1115, 1120
(9th Cir. 2006). Purely factual determinations are reviewed for clear error. Id.
These protections apply to a juvenile even if he or she misrepresents that he or she
is an adult. United States v. Juvenile Male, 595 F.3d 885 (9th Cir. 2010).
Notification of Rights - Juvenile
Claims regarding whether the juvenile has been advised of his rights
immediately turn on the legal interpretation of “immediate,” and therefore de novo
review is appropriate. United States v. Frega, 179 F.3d 793, 802 n.6 (9th Cir.
1999).The Ninth Circuit held in D.L.that immediate means “as soon as
practicable.” 453F.3d at 1120. In D.L., the agent violated his duty to immediately
notify the juvenile of his rights when he waited over an hour to read a Miranda
warning to the juvenile. Id. at 1121. In United States v. Juvenile (RRA-A), 229 F.3d
737, 744 (9th Cir. 2000), the Ninth Circuit found a delay of four hours not to be
immediate. Similarly, in United States v. Doe III, 219 F.3d 1009, 1014 (9th Cir.
2000) (Doe 2000), the Court found a delay of over three hours not to be immediate.
Notification of Rights - Parental/Consular
“Whether a juvenile’s parents have been properly notified pursuant to 18
U.S.C. § 5033 is a predominately factual question that is reviewed for clear error.”
D.L., 453 F.3d at 1120 (citing United States v. Juvenile (RRA-A), 229 F.3d 737,
742 (9th Cir. 2000)). Whether the notification was “immediate” is a legal question
subject to de novo review. Frega, 179 F.3d 793, 802 n.6. In addition to
administering Miranda warnings, the arresting officer must attempt to contact the
juvenile’s parents before questioning begins and must promptly notify the parents
of the child’s rights. 18 U.S.C. § 5033; D.L., 453 F.3d at 1121-22, (citing United
States v. Doe, 170 F.3d 1162, 1167-68 (9th Cir. 1997) (Doe 1999)). “Congress
enacted the JDA to protect the rights of juveniles: to ensure that juveniles can
consult with their parents before being interrogated so that they do not “ ‘become
the victim[s] of fear, then of panic.’ ” D.L., 453 F.3d at 1125 (citing Doe 1999, 170
F.3d at 1167) (citations omitted in D.L.). This Court has “noted that, particularly in
the case of foreign juveniles, ‘the potential discombobulation may be even more
resonant due to language differences and an exacerbated sense of isolation and
helplessness.’” Id.
The requirement of parental notification is so stringent that it may not be
delegated to a “subsequent official who might handle the judicial phases of the
matter[.]” Doe 1999, 170 F.3d at 1167; accord RRA-A, 229 F.3d at 745 (JDA
violated when arresting officer “double delegat[ed]” his duty to notify the
juvenile’s parents); compare Doe 1988, 862 F.2d 776, 779-80 (allowing the
juvenile to attempt to call his own parents did not relieve the Government of its
responsibility to make notification under the statute). “Juveniles cannot . . . waive
their right to parental notification even if they hinder notification.” RRA-A, 229
F.3d 737, 745-46 (citing United States v. L.M.K., 149 F.3d 1033, 1035
(9th Cir. 1998)).
In the event that the juvenile’s parents cannot be reached, the arresting
officer must promptly contact the consulate for the juvenile’s country of origin. Id.
(Consular notification “provid[es] an in-country mechanism for locating the
parents of alien juveniles” and “permit[s] diplomatic officials to become involved
as surrogates for parents who are not in the country.”). However, this substitution
is only permitted after the arresting officer has made reasonable efforts to contact
the juvenile’s parents. D.L., 453 F.3d at 1123. If the Government fails to observe
all of the aforementioned steps and relies on the juvenile’s statements for so much
as probable cause, the court may dismiss the information filed against the juvenile.
Id. The Government bears the burden of showing that parental or consular
notification was made. Doe 1988,862 F.2d at 780 (Government’s failure to show
that it had made consular notification justified finding that the JDA’s notice
requirement had been violated).
Remedies
In D.L., the Government had violated the JDA in obtaining the juvenile’s
confession, and the trial court suppressed the statements. 453 F.3d at 1126.
However, it did not matter whether the statements had been used in trial, because
the relevant question was whether the Government had relied on the statements to
prosecute the juvenile. Id. This Court, relying on Doe (1988),862 F.2d 776, 779-
80, has “held that a violation of the JDA may not be harmless (a) where the
isolation stemming from a violation of the JDA led a juvenile to confess, and (b)
where criminal proceedings were initiated on the basis of the juvenile’s
confession.” D.L., 453 F.3d at 1126. “If a violation of the JDA was prejudicial
because it led the Government to initiate prosecution of the juvenile, the remedy is
for the charges against the juvenile to be dismissed.” Id. United States v. C.M., 485
F.3d. 492 (9th Cir. 2007), a later case, goes further by requiring dismissal if any
constitutional right was violated.
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JON M. SANDS Federal Public Defender TAMARA MULEMBO Assistant Federal Public Defender State Bar No. 024490 407 W. Congress, Suite 501 Tucson, AZ 85701-1355 Telephone: (520)879-7500, Fax: (520)879-7600 Attorneys for Defendant
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
United States of America,
Plaintiff,
vs.
,
Defendant.
MOTION TO DISMISS AND SUPPRESS EVIDENCE
Defendant, , through undersigned counsel, respectfully submits the
following Motion to Dismiss and Suppress Evidence for the reasons set forth in the
accompanying Memorandum of Points and Authorities.
The juvenile contends that excludable delay will not occur as a result of the filing
of this motion. Section 5036 does not incorporate 18 U.S.C. § 3161 and specifically requires
that juveniles be tried within thirty days of the date of detention. Compare United States v.
Tinklenberg, 131 S.Ct. 2007, 2017 (2011) (absent provision expressly incorporating rules for
time calculation under the Federal Rules of Criminal Procedure, the Court only looks to the
plain language of the statute to calculate excluded time for purpose of Speed Trial Act).
RESPECTFULLY SUBMITTED: June 17, 2016.
JON M. SANDS Federal Public Defender
s/ Tamara Mulembo TAMARA MULEMBO Assistant Federal Public Defender
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Armando Lopez and Brian Smisek to arrive and interrogate him. Neither agent was part of the
group that initially detained and arrested . Officers Perez, Villati, Tran, and Lipke did not
read his Miranda rights. Nor did they call his parents. was not read his Miranda
rights until 1:50 p.m. when HSI agents interrogated him. During the interrogation, was
confronted with photographs from his cell phone. No one had consent to search ’s phone,
and no report disclosed to the defense indicates that any officer so much as sought consent or
obtained a warrant for the search.
had no opportunity to privately confer with his parents before submitting to an
interrogation. His parents were not contacted until after his interrogation. When his parents
were contacted, no one explained ’s Miranda rights to them. ’s statements from the
interrogation were used in the affidavit supporting probable cause. He was charged with
Exportation of Munitions in violation of 22 U.S.C. § 2778(b)(2) and (c), Title 22 CFR §§
121.1, 123.1 and 127.1
Law and Argument:
I. ’S STATEMENT WAS OBTAINED IN VIOLATION OF THE FEDERAL JUVENILE DELINQUENCY ACT.
The Juvenile Delinquency Act (JDA), 18. U.S.C. § 5033, provides that “[w]henever a
juvenile is taken into custody for an alleged act of juvenile delinquency, the arresting officer
shall immediately advise such juvenile of his legal rights, in language comprehensive to a
juvenile[.]” The statute further requires the arresting officer to “immediately notify the
Attorney General and the juvenile’s parents, guardian, or custodian of such custody.” Id.
Further, “[t]he arresting officer shall also notify the parents, guardian, or custodian of the
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rights of the juvenile and of the nature of the alleged offense.” Id. When a juvenile asserts
that his rights under the JDA were violated, the court must determine: 1) whether the JDA
was violated; 2) whether the juvenile’s Due Process rights were violated; and 3) if the
violation did not run afoul of Due Process, whether the violation was harmless beyond a
reasonable doubt. United States v. Doe, 862 F.2d 776, 779 (9th Cir. 1988) (Doe 1988). The
Government has the burden of showing that it complied with the JDA. Id.
In addition to administering Miranda warnings, the arresting officer must attempt to
contact the juvenile’s parents before questioning begins and must promptly notify the parents
of the child’s rights. 18 U.S.C. § 5033; D.L., 453 F.3d at 1121-22, (citing United States v.
Doe, 170 F.3d 1162, 1167-68 (9th Cir. 1999) (Doe 1999)). “Congress enacted the JDA to
protect the rights of juveniles: to ensure that juveniles can consult with their parents before
being interrogated so that they do not “ ‘become the victim[s] of fear, then of panic.’ ” D.L.,
453 F.3d at 1125 (citing Doe 1999, 170 F.3d at 1167) (citations omitted in D.L.). This Court
has “noted that, particularly in the case of foreign juveniles, ‘the potential discombobulation
may be even more resonant due to language differences and an exacerbated sense of isolation
and helplessness.’” Id.
The requirement of parental notification is so stringent that it may not be delegated to
a “subsequent official who might handle the judicial phases of the matter[.]” Doe 1999, 170
F.3d at 1167; accord RRA-A, 229 F.3d at 745 (JDA violated when arresting officer “double
delegat[ed]” his duty to notify the juvenile’s parents); compare Doe 1988, 862 F.2d 776, 779-
80 (allowing the juvenile to attempt to call his own parents did not relieve the Government of
its responsibility to make notification under the statute). “Juveniles cannot . . . waive their
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right to parental notification even if they hinder notification.” RRA-A, 229 F.3d 737, 745-46
(citing United States v. L.M.K., 149 F.3d 1033, 1035
(9th Cir. 1998)).
The arresting officers in this case committed numerous JDA violations warranting
dismissal of the Information . First the officers violated the JDA by failing to notify of
his Miranda rights and by delegating the responsibility of informing of his rights.
Second, was to be read his rights immediately pursuant to §5033. Nearly three and a
half hours elapsed before anyone Mirandized him. Third, the arresting officers failed to notify
’s parents of his arrest. Fourth, the arresting officers failed to explain ’s rights to his
parents so that they could assist him in determining whether he should agree to speak with
law enforcement. Fifth, ’s parents were denied the opportunity to privately consult with
to assist him in determining whether to waive his right to remain silent.
II. THE REMEDY FOR VIOLATION ’S RIGHTS UNDER THE JDA IS DISMISSAL OF THE INFORMATION.
In D.L., the Government had violated the JDA in obtaining the juvenile’s confession,
and the trial court suppressed the statements. 453 F.3d at 1126. However, it did not matter
whether the statements had been used in trial, because the relevant question was whether the
Government had relied on the statements to prosecute the juvenile. Id. This Court, relying on
Doe (1988),862 F.2d 776, 779-80, has “held that a violation of the JDA may not be harmless
(a) where the isolation stemming from a violation of the JDA led a juvenile to confess, and
(b) where criminal proceedings were initiated on the basis of the juvenile’s confession.” D.L.,
453 F.3d at 1126. “If a violation of the JDA was prejudicial because it led the Government to
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initiate prosecution of the juvenile, the remedy is for the charges against the juvenile to be
dismissed.” Id., see also United States v. RRA-A, 229 F.3d at 747 (requiring reversal if the
confession resulted in part from isolation from family, friends, an attorney, or representatives
from his or her country). United States v. C.M., 485 F.3d. 492, 503 (9th Cir. 2007), a later
case, goes further by requiring dismissal if any constitutional right was violated.
A. The JDA violations contributed to ’s confession which was used to support filing charges against him. Thus, the Information must be dismissed.
The agents chose not to record the minor’s interrogation in this case. On information and
belief, HSI Agents used the Reid technique on the juvenile in this case. The Reid Technique
presumes the guilt of the suspect. Part of the Reid Technique calls for the isolation of a
detainee to heighten anxiety and distress and wear down their resistance to the interrogation
process. In the instant case, was isolated for nearly three and half hours before his
interrogation began and without the benefit of Miranda warnings or parental intervention or
consultation.
The authors of the Reid technique have cautioned against using this technique with
children as they may lack the capacity to stand up to interrogators. John E. Reid and
Associates warn investigators to:
Exercise extreme caution when interrogating juveniles, suspects with a lower intelligence or suspects with mental impairments. This class of suspect is more susceptible to false confessions and, therefore, the investigator should be cautious in utilizing active persuasion such as discouraging weak denials, overcoming objections or engaging in deceptive practices. Proper corroboration of a confession will be critical with this class of suspect.
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John E. Reid and Associates, Inc., A Quick Guide to Best Practices for the Reid Nine
Steps of Interrogation, (June 17, 2016, 3:05 p.m.), http://www.reid.com/
educational_info/ r_tips.html?serial=20130701
The JDA aims to protect children from becoming the “victim[s] of fear, then panic,”
D.L., 453 F.3d at 1125 (citing Doe 1999, 170 F.3d at 1167). the emotions the Reid Technique
seek to induce. Moreover, the Ninth Circuit has recognized that children with language
differences are more susceptible to “ an exacerbated sense of isolation and helplessness.” Id.
was particularly vulnerable as a juvenile who spoke a foreign language and who had
been raised in a foreign country. He confessed after being detained for hours and after an
interrogation of unknown duration as the agents failed to audio or video record the
interrogation or note when it ended in their written notes. Accordingly, the Government’s
violations of the JDA were not harmless.
B. The agents’ violation of ’s Fourth Amendment rights through their warrantless search of his cell phone supports dismissal of the Information.
“Warrantless searches of cell phones are no longer justified by the “search incident to
arrest” exception. Riley v. California, 134 S.Ct. 2473 (2014); United States v. Camou, 773
F.3d 932 (9th Cir. 2014). Although the Government may attempt to justify the search under
the “border search” exception, which generally allows for “exhaustive forensic searches” of
electronic devices at the border upon reasonable suspicion, United States v. Cotterman, 709
F.3d 952 (9th Cir. 2013), after Riley, the “border search” exception may not be extended to
the search of an arrestee’s cell phone seized incident to arrest at the border for the reasons set
forth below.
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The ultimate touchstone of the Fourth Amendment is reasonableness. Riley, 134 S.Ct.
at 2482. “Where a search is undertaken by law enforcement officials to discover evidence of
criminal wrongdoing … reasonableness generally requires the obtaining of a judicial
warrant.” Id. In the absence of a warrant, a search is reasonable only if it falls within a
specific exception to the warrant requirement. Id. Because warrantless searches and seizures
are per se unreasonable, the government bears the burden of showing that a warrantless
search or seizure falls within an exception to the Fourth Amendment’s warrant requirement.
United States v. Cervantes, 703 F.3d 1135, 1141 (9th Cir. 2012).
In Riley, the Supreme Court held that “the search incident to arrest exception does not
apply to cell phones,” and thus, that “a warrant is generally required … even when a cell
phone is seized incident to arrest.” 134 S.Ct. at 2493-94. Generally, the “search incident”
doctrine allows police to “discover and seize the fruits or evidences of crime” for reasons of
evidence preservation or officer safety. Id. at 2482-84. However, in balancing the competing
interests of privacy and law enforcement needs in the context of cell phone searches incident
to arrest, the Court concluded that “[m]odern cell phones, as a category, implicate privacy
concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse,”
id. at 2488-89, and that “a cell phone search would typically expose to the government far
more than the most exhaustive search of a house.” Id. at 2491 (emphasis in original). Riley
noted that “other case-specific exceptions may still justify a warrantless search of a particular
phone,” and it discussed the exigency exception, but it made no mention of the “border
search” exception. Id. at 2494.
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The Ninth Circuit has “rejected an ‘anything goes’ approach at the border” and has
held that border searches are a “narrow exception” to the warrant requirement. Cotterman,
709 F.3d at 957 (citing United States v. Seljan, 547 F.3d 993, 1000 (9th Cir. 2008) (en banc)).
Under the “border search” exception, the government may conduct “routine” searches of
persons and effects at the border or its functional equivalent upon no suspicion, United States
v. Flores-Montano, 541 U.S. 149, 152 (2004), and “nonroutine” searches – i.e., highly
intrusive searches, including “exhaustive forensic searches” of electronic devices – upon
reasonable suspicion. United States v. Montoya de Hernandez, 473 U.S. 531 (1985);
Cotterman, 709 F.3d at 957.
The scope and reach of the “border search” exception is determined by reference to its
historical scope and rationale. United States v. Ramsey, 431 U.S. 606, 620, 622 (1977)
(examining “the rationale behind the border-search exception” and “historically recognized
scope of the border-search doctrine” to uphold a suspicionless searches of mail at the border).
The rationale is the plenary customs power and the right of the sovereign to protect itself, and
the historical scope is “to identify citizenship, collect payment on dutiable goods, and prevent
the importation of contraband” and disease. 5 WAYNE R. LAFAVE, SEARCH & SEIZURE §
10.5(a) (5th ed. 2014) (citing Ittig, 40 TENN.L.REV. 329, 331 (1973)); see also Flores-
Montano, 541 U.S. at 152 (plenary authority to protect territorial integrity to prevent “the
entry of unwanted persons and effects”); Montoya de Hernandez, 473 U.S. at 537 (plenary
authority to police entrants “to regulate the collection of duties and to prevent the introduction
of contraband into this country”).
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However, the “border search” exception is a “narrow” one and may not be extended
beyond its historical purposes to a post-arrest, investigatory search of a cell phone seized
incident to an arrest for contraband at the border. The Supreme Court has justified warrantless
border searches precisely because they are based on purposes other than furnishing evidence
against a person. Ramsey, 431 U.S. at 616 (differentiating the “long-standing right of the
sovereign to protect itself” and the “plenary customs power” from “the more limited power to
enter and search” places or objects, which generally requires a warrant). The “narrow”
exception thus remains rooted in governmental interests that are entirely distinct from
uncovering additional evidence of guilt to support a prosecution.
In Cotterman, the suspected contraband was the digital data itself. 709 F.3d at 956-57
(child pornography on a laptop). Here, in contrast, at the time of the forensic search, the
contraband had already been seized, had already been arrested, and his cell phone had
already been held as potential evidence. The phone was not contraband or a dutiable article.
The agents simply were not entitled to search his phone. See Camou, 773 F.3d at 937-45
(rejecting the government’s attempt to justify a cell phone search at an interior border patrol
checkpoint under the exigency, vehicle, good faith, search incident, and inevitable discovery
exceptions).
In the modern era, telephonic search warrants are easy to apply for remotely. Missouri
v. McNeely, 133 S.Ct. 1552, 1561-62 (2013). Also, other officers within Homeland Security
are now asking arrestees to sign forms giving consent to phone searches in nearly identical
cases in Nogales. Neither occurred here.
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Here, when the viewed objectively, the search of the arrestee’s phone was a “search
incident to arrest” – prohibited for cell phones – rather than a “border search,” as that
“narrow” exception has been defined and justified. Therefore, because the cell phone data
was obtained with a warrant or consent, and because no exception to warrant requirement
applies, it must be suppressed.
However, suppression alone is an insufficient remedy in this case. Here, the
Government violated a child’s Fourth Amendment rights and used the fruits of that violation
used to obtain a confession. The agents further sought to turn the minor into a confidential
source, all without the benefit of his parents’ intervention. ’s statement was used to file
charges against him and actually did cause him to lose his liberty for a time while this case
was pending. As the Ninth Circuit has stated in C.M., “[w]here the Government's violations
deprive the juvenile of his or her constitutional rights, reversal is required.” 485 F.3d at 499.
Dismissal is more than justified here.
RESPECTFULLY SUBMITTED: June 17, 2016.
JON M. SANDS Federal Public Defender
s/ Tamara Mulembo TAMARA MULEMBO Assistant Federal Public Defender
I hereby certify that on June 17, 2016, I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic filing to the following CM/ECF registrants: Jesse Figueroa, Assistant U.S. Attorney
