We didn’t really need more precedent assuring us our rights don’t mean anything at the borders, but we got it anyway.

Within 100 miles of any US border (and that includes international airports), courts have generally ruled that rights are optional. If they seem to be getting in the way of “securing” the border, they have to go. And that’s why intrusive device searches have increased steadily in recent years, despite the Supreme Court’s 2014 Riley decision. That ruling said warrants were required to search cell phones because cell phones, unlike someone’s trunk or pants pockets, contained a wealth of personal and private information previously unseen in the history of the nation.

Given the rationale for the warrant requirement, you’d think courts would extend it to cover the nation’s borders. But no court has. When it comes to border searches, Riley simply doesn’t apply.

Not every court has reached this conclusion. A federal judge in the 2nd Circuit said Riley applied at the border. But that ruling was never ratified at the appellate level, so it hardly changes things in the Second Circuit.

The Ninth Circuit Appeals Court — which covers the largest amount of southern border (which is where pretty much all the intrusion takes place) — did place some restraints on warrantless border device searches, limiting them to searches for “contraband.” How much that changed anything is unknown, but it was a small step further than any other circuit has been willing to go.

The circuit with the second largest amount of border territory (the Fifth Circuit) hasn’t had any qualms about eradicating the Fourth Amendment at border crossings. An unequivocal “no warrants needed” was handed down by that circuit late last summer.

The Seventh Circuit Appeals Court recently revisited this issue. Its earlier ruling on the issue was pretty much a punt. The court decided it didn’t need to deliver any ruling on the issue at that point because it could use the “good faith” release valve to sidestep anything approaching precedent.

The primary positions staked out by the parties could not be more starkly contrasted. The defendant argues that nothing less than a warrant authorizes a search of electronic devices at the border. The government asserts that it may conduct these searches without any particularized suspicion at all. In the end, though, we need not adopt either of these positions, and indeed may avoid entirely the thorny issue of the appropriate level of suspicion required. Instead, we affirm the district court’s denial of the motion to suppress because these agents acted in good faith when they searched the devices with reasonable suspicion to believe that a crime was being committed, at a time when no court had ever required more than reasonable suspicion for any search at the border.

That’s how it went in April 2019. Here’s how it’s going now:

The “longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless ‘reasonable’ has a history as old as the Fourth Amendment itself.” United States v. Ramsey, 431 U.S. 606, 619 (1977). That history leads us to join the uniform view of our sister circuits to hold that searches of electronics at the border—like any other border search—do not require a warrant or probable cause, and that the kind of routine, manual search of the phone initially performed here requires no individualized suspicion. We affirm.

That’s from the opening of the appeals court decision [PDF], one that portrays a CBP agent’s trawl through a traveler’s phone as a “routine, manual search,” which included demanding (and obtaining) a passcode, digging through images stored on the phone, and unlocking (with the provided passcode) another application where more images of child sexual abuse were discovered.

The traveler (and the person seeking to suppress the evidence discovered on his phone) is Marcos Mendez, a US citizen who had previous arrests for solicitation of a child and CSAM possession. So, he was already on the CBP radar. That being said, it’s a bit chilling to realize this is what the CBP thinks is an indicator of child sexual abuse — something the Seventh Circuit tacitly endorses by placing it in the decision without further comment:

Mendez also fit the profile for child-pornography offenders: a single adult male traveling alone.

Well… OK, then. The supposed connective tissue was the fact that Mendez traveled alone to Ecuador, which is apparently just as suspicious because… well… rank speculation, I guess?

[M]endez was returning from Ecuador, which CBP officers classified as a potential child trafficking source country.

Couldn’t literally any country be considered a “potential child trafficking source country?” I mean, we’re just talking potential here. It’s not other countries, which are known destinations for people seeking to engage in sex with minors. All this says is that Ecuador, like every other country in the world, has minors in its population and those minors have the potential to be trafficked for sex.

Anyway, the Seventh Circuit isn’t going to let itself get bogged down by questionable assertions about suspicion asserted by our valiant border officers. Instead, it’s just going to get down to business aligning itself with every other circuit by going on (permanent) record with a free pass on constitutional violations anywhere people might enter or exit the United States.

And, in doing so, the court says things the Supreme Court didn’t say about the Riley decision, even as it uses a very selective direct quote. According to the Seventh Circuit, Riley doesn’t apply at the borders because the incident underlying that historic decision did not occur at the border.

Riley involved the search incident to arrest exception and “carefully tailored its analysis to that context.” Wood, 16 F.4th at 533. What is unreasonable after arrest may be perfectly reasonable at customs, as Riley itself anticipated. See Riley, 573 U.S. at 401–02 (“[O]ther case-specific exceptions may still justify a warrantless search of a particular phone.”)

But the Seventh Circuit’s blanket exception for border searches ignores a crucial part of the very decision it quotes:

“[O]ther case-specific exceptions…”

This ruling has nothing to say about specifics. While it’s certainly true a known sex offender will receive greater scrutiny when entering or exiting the country, the ruling here applies this line of thought to everyone crossing borders, whether or not any reasonable suspicion exists to justify the seizure and search of someone’s phone.

There’s evidence here this search was likely justified under the lower level of constitutional protections at our nation’s borders, but the Seventh Circuit looks at a case-specific exception and makes it a blanket exception by refusing to undo precedent that says federal officers can pretty much do whatever they want, so long as it happens within 100 miles of any border crossing.

So, it’s not a great ruling or even a good one. It just is. And because no appellate circuit has been willing to upset this free-for-all at the border by instituting a warrant requirement, every other appellate circuit thinks it’s OK to ignore the greater message of the Riley decision (that being that almost any search of a person’s phone is intrusive) in favor of just keeping their heads down and allowing the status to remain quo.

“Odor of marijuana” still remains — even in an era of widespread legalization — a favorite method of justifying warrantless searches. It’s an odor, so it can’t be caught on camera, which are becoming far more prevalent, whether they’re mounted to cop cars, pinned to officers’ chests, or carried by passersby.

Any claim an odor was detected pits the officer’s word against the criminal defendant’s. Even though this is a nation where innocence is supposed to be presumed, the reality of the criminal justice system is that everyone from the cops to the court to the jury tend to view people only accused of crimes as guilty.

But this equation changed a bit as states and cities continued to legalize weed possession. Once that happened, the claim that the “odor” of marijuana had been “detected” only meant the cops had managed to detect the odor of a legal substance. The same thing for their dogs. Drug dogs are considered the piece de resistance in warrantless roadside searches — an odor “detected” by a four-legged police officer that’s completely incapable of being cross-examined during a jury trial.

As legalization spreads, courts have responded. There have been handful of decisions handed down that clearly indicate what the future holds: cops and dog cops that smell weed where weed is legal don’t have much legal footing when it comes to warrantless searches. Observing something legal has never been — and will never be — justification for a search, much less reasonable suspicion to extend a stop.

The present has yet to arrive in the Seventh Circuit. Detecting the odor of a legal substance is still considered to be a permission slip for a warrantless search. And that’s only because there’s one weird stipulation in the law governing legal marijuana possession in Illinois.

In this case, a traffic stop led to the “detection” of the odor of marijuana. That led to the driver fleeing the traffic stop and dropping a gun he was carrying. And that led to felon-in-possession charges for Prentiss Jackson, who has just seen his motion to suppress this evidence rejected by the Seventh Circuit Appeals Court.

Here’s how this all started, as recounted in the appeals court decision [PDF]:

The officer smelled the odor of unburnt marijuana emanating from the car. He knew the odor came from inside the car, as he had not smelled it before he approached the vehicle. During their conversation about the license and registration, the officer told Jackson he smelled “a little bit of weed” and asked if Jackson and the passenger had been smoking. Jackson said he had, but that was earlier in the day, and he had not smoked inside the car.

Through the officer’s training, he knew the most common signs of impairment for driving under the influence were the odor of marijuana or alcohol and speech issues. He was also taught to look for traffic violations. Concerned that Jackson might be driving under the influence because of the head and taillight violation, the odor of marijuana, and Jackson’s admission that he had smoked earlier, the officer asked Jackson whether he was “safe to drive home.” Jackson said he was. His speech was not slurred during the interaction, and his responses were appropriate.

Now, I’m not a federal judge. (And probably shouldn’t be one, for several reasons.) But I think I would have immediately called bullshit here. According to the officer’s own statements, his “training” led him to believe things like unburnt marijuana and unlit headlights/taillights are indicators of “driving under the influence.” I would have asked for the officer to dig deep into the reserves of his “training” to explain these assertions. The only one that fits is Jackson’s admission he had smoked “earlier.” And, even with that admission, Jackson cleared the impairment test.

The officer, however, insisted he had probable cause to engage in a warrantless search of the car, based exclusively on his detection of the odor of “unburnt” marijuana. The officer told Jackson he was going to cite him for weed possession (not for the amount, but for how it was stored in the car). He also told the passenger he would make an arrest if Jackson did not “agree” to a “probable cause search.”

Jackson moved to the back of his car as ordered by the officer. Shortly before the patdown began, Jackson fled, dropping a handgun he was not legally allowed to possess.

Jackson challenged the search in his motion to suppress, arguing that marijuana legalization meant an assertion that the odor of a (legal) drug had been detected by an officer meant nothing in terms of probable cause for a warrantless search. The lower court rejected Jackson’s argument. The Seventh Circuit Appeals Court agrees with the trial court.

First, the court says marijuana, while legal in Illinois, is still illegal under federal law. And the suspicion a federal law has been broken (even if it can’t be enforced locally) is still enough to justify further questions and further exploration of a car.

Furthermore, state requirements for transporting legal marijuana in personal vehicles were not met by Jackson’s baggies of personal use weed.

[T]he [Illinois] Vehicle Code […] clearly states that when cannabis is transported in a private vehicle, the cannabis must be stored in a sealed, odor-proof container—in other words, the cannabis should be undetectable by smell by a police officer.”

That’s a really weird stipulation. It basically tells residents that in order to legally transport drugs they must act like drug smugglers. And, while I haven’t seen a case raising this issue yet, one can be sure people have been criminally charged for following the law because officers believe efforts made to prevent officers from detecting drugs is, at the very least, reasonable suspicion to extend a stop or, better yet, probable cause to engage in a warrantless search.

And this is likely why that particular stipulation (which I haven’t seen in other places where weed is legal) was included in this law: it doesn’t remove one of the handiest excuses to perform a warrantless search — the “odor of marijuana.”

The smell of unburnt marijuana outside a sealed container independently supplied probable cause and thus supported the direction for Jackson to step out of the car for the search.

That’s pretty handy… at least for cops. It allows them to “detect” the odor of a legal substance in order to treat it as contraband. And they need to do little more than claim in court they smelled it — something that’s impossible to disprove. Illinois has managed to do the seemingly impossible: it has legalized a substance while allowing law enforcement officers to treat it as illegal. That’s quite the trick. And because of that, it’s still perfectly legal to pretend legal substances are contraband when it comes to traffic stops in Illinois.