11th Circuit: Complying with the Spirit of Internal Directives When Reviewing Potentially Privileged Material at the Border Safeguards Fourth Amendment Protections
This case law update was written by Michael J. Sgarlat an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2015. Mr. Sgarlat works with federal employees to respond to proposed disciplinary and adverse actions, and has experience litigating cases before the U.S. Merit Systems Protection Board.
In December 2019, Customs and Border Protection (“CBP”) stopped Luis Raul Vicente Fonseca at the Miami International Airport as he entered the United States after the Department of Homeland Security (“DHS”) began an investigation into a tip from the National Center for Missing and Exploited Children. Upon a search of Fonseca and his luggage, three cell phones were discovered.
Fonseca told CBP that he was an attorney in Venezuela. Per DHS directives, CBP officers are required to contact an Associate Assistant Chief Counsel or a U.S. Attorney before searching for information that might be subject to the attorney-client privilege. The personnel on site did not make that contact. They did speak to in-house counsel though.
Based on its border search authority, a DHS Security Analyst performed an initial forensic search of the three cell phones. The Analyst uncovered over 1000 child pornography files. As a result, DHS obtained a search warrant and established a privilege filter team in coordination with the U.S. Attorney’s Office. No privileged information was uncovered.
Fonseca was indicted on two counts of possessing and distributing child pornography. Before trial, Fonseca moved to suppress all evidence obtained from the search of his phones, arguing (1) that a forensic search without reasonable suspicion was not justified by the border search exception to the warrant requirement, and (2) DHS failed to follow its internal directives and establish a filter team before searching phones that could contain privileged information.
After a 2-day trial, a jury found Fonseca guilty on both counts. However, the government then discovered a problem – the lead case agent on the investigation did not testify regarding the tip and contents of the phones. While that agent testified before a grand jury, that testimony was not provided to the defense as required by the Jencks Act. The government therefore provided that information to the defense, Fonseca moved for a new trial, and the district court denied the motion.
Fonseca appealed the conviction to the U.S. Court of Appeals for the Eleventh Circuit. His appeal focused on his argument for suppression before the district court – that DHS agents searching his phones violated the Fourth Amendment by failing to follow their agency’s privilege procedures after Fonseca informed them that he was an attorney in Venezuela and that the phones might contain privileged information.
The court of appeals stated that it has previously held in the due process context that an agency’s failure to follow its own internal operating procedures does not automatically result in a constitutional violation. Likewise, the court has held that the use of filter teams sufficiently protects a defendant’s Fourth Amendment rights. However, the court stated these holdings have little bearing on whether DHS’s search of Fonseca’s phones was constitutional. The court stated that the use of a filter procedure is not the only way an agency can constitutionally search potentially privileged materials.
Here, the court of appeals stated that the precautions DHS took during the search of Fonseca’s phones likely complied with DHS’s internal directives for searches implicating purportedly privileged material. And, even if they did not, the court stated that the precautions taken were adequate to safeguard against disclosing privileged material. For example, the agents consulted with in-house counsel, limited their initial search to pictures and videos, obtained a warrant, and assembled a filter team before conducting a full examination of the phones. Ultimately, no privileged information was found, and the defendant’s rights were protected.
The court of appeals therefore found that there was no error in denying the motion to suppress. On these grounds, and finding the district court did not err with respect to other issues on appeal, the court affirmed the conviction.
Read the full case: United States v. Fonseca
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