Cellphone Search, Interrogation at Border Suppressed

, New York Law Journal

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ALBANY - U.S. Border agents, acting without a warrant, improperly downloaded information from the cellphones of two women they arrested near the Canadian border for aiding a man in the United States illegally, a federal judge ruled.

Judge Thomas McAvoy (See Profile) also determined that agents at the Champlain border crossing in northern New York violated the women's constitutional rights by failing to have suspects sign statements acknowledging they were given their Miranda warnings and waived their rights before being interrogated.

Following McAvoy's ruling in USA v. Alvarez, 8:13-cr-009 disallowing the cell phone records and the suspects' statements, the Northern District U.S. Attorney's Office dismissed the indictments against Yusdelmis Alvarez and Dianepsi Alvarez.

The women were stopped on Dec. 10, 2012 by agents at a Clinton County convenience store in Ellenburg, about 10 miles south of the U.S.-Canadian border, where Alexander Veloz-Lopez told the agents he expected his girlfriend to pick him up.

When the women arrived at the store, agents asked for identification and citizenship status. Though neither had proof of citizenship, both produced Florida driver's licenses, according to McAvoy.

Yusdelmis Alvarez told the agents they had just visited the "mountains" and were on their way back to Florida, but agents took their driver's licenses, cellphones and a global positioning system device from their vehicle. The agents asked the women to accompany them to the Champlain office, with one agent riding in an official vehicle ahead of their car and the other behind.

At the station, McAvoy said the agents opened the cellphones and extracted telephone numbers and messages. The agents acted without the women's permission or warrants, the judge noted.

"These actions amounted to a search that was not justified by any exigent circumstance and not necessary to protect any officer's safety," the judge wrote.

According to McAvoy, the U.S. Court of Appeals for the Second Circuit has not yet ruled on the question of warrantless searches of cell phones. But he said the court held in United States v. Galpin, 720 F.3d 436 (2013), that the search of a computer hard drive was "akin to a residence in terms of the scope and quantity of private information it may contain" (NYLJ, July 3, 2013).

The Galpin court held that the potential for an "unbridled, exploratory search of a hard drive is enormous" and said warrant restrictions must be observed.

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