Political Post: Should Phone Privacy Tools Be Illegal for Citizens?

[Gawernator]

Do you have a PACER account?

If the transcript is posted, I’d be interested to see how they phrased it.

My guess is cop jargon like, “using a tactical deception, we confronted subject with information that his cellphone contained CSAM”

Hah you should know I have a PACER account! Though with the cases we handle I’m usually searching county records on individuals and rarely PACER.

And yeah cops lie and manipulate people constantly everyday to build cases so that’s no surprise

 

[john_marsten_1873]

It is well settled law that if a suspect invokes their right to silence or counsel, questioning must stop.

It seems that the CBP was attempting to masquerade the questioning as non-custodial, in the sense that he wasn't actually being detained - and didn't have a reason to believe he was actually detained - in which case the questioning is still in the purview of CBP authority. No reading of Miranda rights, questioning can continue without attorney, even if he asked for it, no?

After he has his devices seized, told he was required to provide a passcode, brought to secondary detainment and strip-searched, a different agent came in and told him he was free to leave - "when these gentleman are done with their questioning".

 

[ikeo1]

Here’s their move:


They say the passcode was obtained in violation of Miranda, therefore the phone wipe produced by entering that passcode must also be suppressed.


Problem: United States v. Patane says an ordinary Miranda violation does not generally require suppression of the physical fruits of an unwarned but voluntary statement. The Supreme Court reiterated that principle in Vega v. Tekoh.


The defense knows this and tries to distinguish Patane by saying the “wiping” is itself testimonial.


I don’t find that very convincing.


There are really two things:


The communication of the passcode: potentially testimonial.


The phone blanking, flashing, restarting, and losing its contents: observable digital/physical evidence of what resulted from entering that credential.


Calling the second thing “testimonial” because it was caused by the first doesn’t magically transform the phone’s resulting state into testimony.


This becomes much stronger for Tunick only if he can show actual unconstitutional compulsion/involuntariness, rather than merely a failure to give Miranda warnings. The motion blurs those concepts. An unwarned voluntary statement and an actually coerced statement have different derivative-evidence consequences.


And there is some hilariously sloppy citation work here. The brief cites:


United States v. Lall, 607 F.3d 1277 “(11th Cir. 1985).”


Lall was decided in 2010.


It also repeatedly cites Jackson v. Denno, 378 U.S. 368 as 1984. It was decided in 1964.


Those aren’t fatal errors, but they’re not confidence-inspiring in a 13-page federal suppression motion.

1. The Fourth Amendment section is where the brief starts looking like an appellate issue-preservation exercise rather than something this district judge can actually grant.

The defense openly acknowledges:


The Eleventh Circuit has held that forensic searches of electronic devices at the border are constitutional without a warrant, probable cause, or individualized suspicion, citing Touset.


Then it basically says Touset is wrong.


That’s fine if you’re preserving the issue for the Eleventh Circuit en banc or Supreme Court. But a federal district judge in Georgia doesn’t get to say, “I prefer the Fourth Circuit.”


Worse, the motion cites Pulido, a published 2025 Eleventh Circuit decision, and then doesn’t grapple honestly with what Pulido actually held.


The brief says:


“As the level of the search’s intrusiveness increases, the amount of suspicion needed to justify the search should increase.”


That gives a badly misleading impression of Eleventh Circuit law as applied to phones.


Pulido expressly says the relevant “intrusiveness” distinction in Eleventh Circuit border doctrine concerns bodily integrity and personal indignity, not the scope of information contained in property. It then reiterates that even a forensic electronic-device search requires no individualized suspicion.


That’s about as direct as precedent gets.

1. Even worse for Tunick, Pulido already rejected almost his exact “contraband” argument.

Tunick argues that the border exception historically exists to stop contraband from entering the United States and asks, essentially:


If the digital contents were destroyed, where was the danger of contraband entering the country?


Then he argues authorities improperly used the border to investigate domestic Cop City-related activity.


But Pulido considered the argument that searching private messages exceeds the historical contraband rationale and rejected it.


The Eleventh Circuit said Vergara and Touset do not restrict the border-search exception to searches for contraband.


Meaning the defense isn’t merely asking the district court to extend the law a little. It’s asking the district court to go against the published Eleventh Circuit case it cites two pages earlier.

1. And the omission of United States v. Quarles is pretty brutal.

This may be the most interesting thing I found.


Quarles was decided by the Eleventh Circuit in May 2025, about ten months before Tunick filed this motion. It’s unpublished, so it isn’t binding precedent like Pulido, but its facts are almost comically relevant.


CGIS was already investigating Quarles for domestic criminal activity. It put an alert in a law-enforcement database and specifically requested that his electronic devices be searched when he returned to the United States. When he returned from an international cruise, CBP, CGIS, and HSI intercepted him, took the phone, manually searched it, and then performed a bit-for-bit forensic extraction.


Sound familiar?


Quarles argued that the border exception should apply only to contraband searches and that using it to gather evidence of ordinary criminal activity required a warrant.


The Eleventh Circuit said his argument was foreclosed by Pulido.


That doesn’t make Quarles identical to Tunick. Quarles had considerably stronger individualized suspicion against him. But the appellate court’s legal reasoning did not depend on suspicion being necessary. More importantly, it demonstrates that a preplanned request from another investigative agency to exploit a suspect’s return through the border does not, by itself, take the resulting device search outside Eleventh Circuit border-search doctrine.


Tunick’s motion never mentions Quarles.


That’s a conspicuous omission.

1. The out-of-circuit cases are real, but they don’t rescue him in Georgia.

The defense cites Aigbekaen and Kolsuz from the Fourth Circuit, Qin from the First, and Cano from the Ninth to demonstrate that other circuits impose tighter limits on electronic border searches.


That’s legitimate appellate advocacy. There genuinely is disagreement among the circuits.


But it doesn’t make those cases controlling in the Northern District of Georgia. Pulido is published Eleventh Circuit precedent. A district court is bound by it.


So that whole final section reads to me primarily as:


“We know existing circuit law is against us; we’re preserving this issue for appeal.”


That’s perfectly normal defense lawyering, but it’s a very different thing from the Reddit/forum interpretation that Tunick has discovered some giant hole in CBP’s border-search authority.


There are also two arguments I think the defense strangely underdevelops.


First, Pulido says border-search analysis begins by asking whether there was statutory authority for the search before reaching Fourth Amendment reasonableness. Tunick’s lawyers mention this and then barely develop it. If their theory really is “CBP was being used as an FBI proxy for an investigation totally outside legitimate border functions,” attacking the precise statutory authority and its scope would seem much more useful than telling a district judge that binding Touset is wrongly decided.


Second, the motion says DHS seized his devices for 30 days, yet it doesn’t really develop a separate prolonged-seizure argument. Eleventh Circuit law recognizes that even an initially lawful seizure can become unreasonable through excessive delay. Quarles itself analyzes that question separately. Whether 30 days was unreasonable would depend heavily on what the government did during that period, but that’s at least a doctrinally available argument rather than asking the district court to ignore Pulido.


The really important point for the §2232 charge is this:


Tunick can win a Miranda issue without necessarily proving that CBP lacked lawful authority to take the phone.

Please post your own summary, not ai copy. That takes up more space and isn’t independent thought.

I did AI summaries here before and it’s not useful for our discussion. The more I use it, the more I’d like our forums to be mainly human. I’ve spun off a separate site for ai augmented summaries.

It’s a minimum to get spun up on a subject, then these discussions in the forum for more.

The only time I’ll post ai copy is mainly when I do announcements. So let’s keep ai to a minimum unless it’s for stats.

It takes up space and no one reads it. I’ll update the rules as well.

 

[Gawernator]

Please post your own summary, not ai copy. That takes up more space and isn’t independent thought.

I did AI summaries here before and it’s not useful for our discussion. The more I use it, the more I’d like our forums to be mainly human. I’ve spun off a separate site for ai augmented summaries.

It’s a minimum to get spun up on a subject, then these discussions in the forum for more.

The only time I’ll post ai copy is mainly when I do announcements. So let’s keep ai to a minimum unless it’s for stats.

It takes up space and no one reads it. I’ll update the rules as well.

The merits are still correct unless anyone can prove otherwise, AI enhanced or not. I definitely don't have time to correct all the bad info/misinformation on here though by hand so I'll bow out

 

[john_marsten_1873]

So the government is trying to prove:

1. Questioning remained non-custodial and within CBP authority where the 4A exemption applies
2. That he wasn't actually detained and didn't have reason to believe he was detained so 5A and 6A were not violated

Tunick's defense is arguing that:

1. CBP planned his detainment and it was not actually routine enforcement - 4A exception no longer applies and they don't have a right to seize and search his phone without a warrant
2. Questioning moved from non-custodial to accusatory and that he has reason to believe he was being detained - 5A triggered
3. He invoked his right to an attorney - since he [reasonably] believed he was detained and that right was denied - 6A triggered - any statements or evidence at that point no longer voluntary and are inadmissible

 

[dvoncock]

It seems that the CBP was attempting to masquerade the questioning as non-custodial, in the sense that he wasn't actually being detained - and didn't have a reason to believe he was actually detained - in which case the questioning is still in the purview of CBP authority. No reading of Miranda rights, questioning can continue without attorney, even if he asked for it, no?

After he has his devices seized, told he was required to provide a passcode, brought to secondary detainment and strip-searched, a different agent came in and told him he was free to leave - "when these gentleman are done with their questioning".

The DOJ will definitely argue this was noncustodial questioning rather than a custodial interrogation within the meaning of Miranda.

The legal test for “custody” is whether, under the totality of circumstances, a person in the defendant’s circumstances would feel free to terminate the encounter and leave. If he was told he couldn’t leave until they were finished, or was separated from his belongings such that leaving would’ve meant abandoning his property, DOJ will have a difficult time convincing the court this was a noncustodial encounter.

When a custodial interrogation occurred, courts come down especially hard on cops who fail to honor a person’s request for counsel.

But, yes, if this was not a custodial interrogation, then the officers were not necessarily required to cease questioning when he asked for a lawyer. But, interactions with law enforcement are either “consensual encounters” or seizures. If, during a consensual encounter, the citizen starts saying “I don’t want to talk, I want a lawyer, etc.,” and law enforcement persists, then that encounter can become a seizure, because it’s hardly consensual at that point.

 

[dvoncock]

So the government is trying to prove:

1. Questioning remained non-custodial and within CBP authority where the 4A exemption applies
2. That he wasn't actually detained and didn't have reason to believe he was detained so 5A and 6A were not violated

Tunick's defense is arguing that:

1. CBP planned his detainment and it was not actually routine enforcement - 4A exception no longer applies and they don't have a right to seize and search his phone without a warrant
2. Questioning moved from non-custodial to accusatory and that he has reason to believe he was being detained - 5A triggered
3. He invoked his right to an attorney - since he [reasonably] believed he was detained and that right was denied - 6A triggered - any statements or evidence at that point no longer voluntary and inadmissible

Bingo!

 

[Gawernator]

The DOJ will definitely argue this was noncustodial questioning rather than a custodial interrogation within the meaning of Miranda.

The legal test for “custody” is whether, under the totality of circumstances, a person in the defendant’s circumstances would feel free to terminate the encounter and leave. If he was told he couldn’t leave until they were finished, or was separated from his belongings such that leaving would’ve meant abandoning his property, DOJ will have a difficult time convincing the court this was a noncustodial encounter.

When a custodial interrogation occurred, courts come down especially hard on cops who fail to honor a person’s request for counsel.

But, yes, if this was not a custodial interrogation, then the officers were not necessarily required to cease questioning when he asked for a lawyer. But, interactions with law enforcement are either “consensual encounters” or seizures. If, during a consensual encounter, the citizen starts saying “I don’t want to talk, I want a lawyer, etc.,” and law enforcement persists, then that encounter can become a seizure, because it’s hardly consensual at that point.

In McDowell, the Eleventh Circuit even upheld a roughly four-hour border-zone interrogation as noncustodial under the circumstances.

 

[john_marsten_1873]

The legal test for “custody” is whether, under the totality of circumstances, a person in the defendant’s circumstances would feel free to terminate the encounter and leave. If he was told he couldn’t leave until they were finished, or was separated from his belongings such that leaving would’ve meant abandoning his property, DOJ will have a difficult time convincing the court this was a noncustodial encounter.

When a custodial interrogation occurred, courts come down especially hard on cops who fail to honor a person’s request for counsel.

Thanks for clarifying this!

But, yes, if this was not a custodial interrogation, then the officers were not necessarily required to cease questioning when he asked for a lawyer. But, interactions with law enforcement are either “consensual encounters” or seizures. If, during a consensual encounter, the citizen starts saying “I don’t want to talk, I want a lawyer, etc.,” and law enforcement persists, then that encounter can become a seizure, because it’s hardly consensual at that point.

I guess I'm still wondering where the CBP 4A exception comes in. I was once questioned pretty harshly when returning from Brazil and missed my connection. There were no actual accusations but he was doing the rapid fire thing trying to trip me up. So does requesting a lawyer at any point with any law enforcement trigger 6A? I guess that's not exactly 4A but I'm wondering if I have a right to a lawyer if they ask to look through my phone or luggage?

Anyhow, thanks for bringing more clarity to this! Much appreciated!

 

[dvoncock]

Thanks for clarifying this!


I guess I'm still wondering where the CBP 4A exception comes in. I was once questioned pretty harshly when returning from Brazil and missed my connection. There were no actual accusations but he was doing the rapid fire thing trying to trip me up. So does requesting a lawyer at any point with any law enforcement trigger 6A? I guess that's not exactly 4A but I'm wondering if I have a right to a lawyer if they ask to look through my phone or luggage?

Anyhow, thanks for bringing more clarity to this! Much appreciated!

I think it depends. In this case, the guy was pulled into an interview room and, it seems held for a long time. It’s also on record that he was specifically targeted for interception for…um…reasons.

That is different than getting the third degree from an overzealous CBP officer who randomly decided to pick you out of the crowd.

The border exception is pretty broad in terms of what it allows at this point. Courts refer to it as a long recognized exception, but that’s disingenuous. A ton of border exception cases went to SCOTUS starting in the late 1970s/early 1980s. Almost all related to drug interdiction at airports when airport security in the U.S. was still a joke. Each new case was more lenient on the government.

The War on Drugs—much Moe that the War on Terror—unfortunately eroded a lot of Fourth Amendment protections.

 

[dvoncock]

In McDowell, the Eleventh Circuit even upheld a roughly four-hour border-zone interrogation as noncustodial under the circumstances.

Wow, four hours is wild! Don’t think I’ve read that one. My focus is California, SCOTUS, and Ninth Circuit decisions since they directly affect my work.

 

[miles888]

How can they call the phone contents evidence if they never confirmed what was on the phone?

 

[RickD427]

How can they call the phone contents evidence if they never confirmed what was on the phone?

They don't have to call it "Evidence", nor do they have to know what was "destroyed." All they have to show is that something was damaged to prevent the government from accessing it.

Here is the text of the statute that the government is charging:

"Whoever, before, during, or after any search for or seizure of property by any person authorized to make such search or seizure, knowingly destroys, damages, wastes, disposes of, transfers, or otherwise takes any action, or knowingly attempts to destroy, damage, waste, dispose of, transfer, or otherwise take any action, for the purpose of preventing or impairing the Government’s lawful authority to take such property into its custody or control or to continue holding such property under its lawful custody and control, shall be fined under this title or imprisoned not more than 5 years, or both."

 

[ikeo1]

The merits are still correct unless anyone can prove otherwise, AI enhanced or not. I definitely don't have time to correct all the bad info/misinformation on here though by hand so I'll bow out

AI will argue based on the prompt, I’m just saying don’t copy/paste. It’s for storage and also your thought on it. The AI augmented side has its own section. It’s also for everyone else, no one is going to read the wall of text and you don’t want to argue, so please don't copy/paste a response from ai. Statistics is ok and your own words.

I work with ai enough to know there’s some specific downsides to it filling the db. Theres some other underlying technical reasons too.

 

[Gawernator]

They don't have to call it "Evidence", nor do they have to know what was "destroyed." All they have to show is that something was damaged to prevent the government from accessing it.

Here is the text of the statute that the government is charging:

"Whoever, before, during, or after any search for or seizure of property by any person authorized to make such search or seizure, knowingly destroys, damages, wastes, disposes of, transfers, or otherwise takes any action, or knowingly attempts to destroy, damage, waste, dispose of, transfer, or otherwise take any action, for the purpose of preventing or impairing the Government’s lawful authority to take such property into its custody or control or to continue holding such property under its lawful custody and control, shall be fined under this title or imprisoned not more than 5 years, or both."

Finally some common sense

 

[john_marsten_1873]

They don't have to call it "Evidence", nor do they have to know what was "destroyed." All they have to show is that something was damaged to prevent the government from accessing it.

Here is the text of the statute that the government is charging:

"Whoever, before, during, or after any search for or seizure of property by any person authorized to make such search or seizure, knowingly destroys, damages, wastes, disposes of, transfers, or otherwise takes any action, or knowingly attempts to destroy, damage, waste, dispose of, transfer, or otherwise take any action, for the purpose of preventing or impairing the Government’s lawful authority to take such property into its custody or control or to continue holding such property under its lawful custody and control, shall be fined under this title or imprisoned not more than 5 years, or both."

Yeah. I was stuck on the whole "evidence" thing as well. To the lay person it's really strange that you can be indicted for destruction of evidence when there are no underlying charges that said or alleged evidence would support.

Even without that, details of the case reek of corruption. Luckily, I've never been in any legal trouble but if this is all is routine for our justice system, it's extremely concerning.

 

[rackit711]

When they're doing the right thing, definitely.

Proof? He deleted it lol. That's why he is facing charges. Bro must have been so scared they would find his kiddie rape porn, and you are gonna defend it. Wonder why...

By your logic then Trump is a child molestor. He deleted it!

Some people have never left their home town or traveled abroad or met people who travel regularly. Journalists face major risks when crossing borders because customs officials have broad authority to search you.

But some people will say well if he had nothing to hide… F- that. The government doesn’t have the right to warrantless searches. If you want to make exceptions then you should accept exceptions to other rights.

 

[RustVendor]

They don't have to call it "Evidence", nor do they have to know what was "destroyed." All they have to show is that something was damaged to prevent the government from accessing it.

Here is the text of the statute that the government is charging:

"Whoever, before, during, or after any search for or seizure of property by any person authorized to make such search or seizure, knowingly destroys, damages, wastes, disposes of, transfers, or otherwise takes any action, or knowingly attempts to destroy, damage, waste, dispose of, transfer, or otherwise take any action, for the purpose of preventing or impairing the Government’s lawful authority to take such property into its custody or control or to continue holding such property under its lawful custody and control, shall be fined under this title or imprisoned not more than 5 years, or both."

I read that yesterday and was wondering "custody or control" is, does them reading something off your phone count as that?

 

[miles888]

They don't have to call it "Evidence", nor do they have to know what was "destroyed." All they have to show is that something was damaged to prevent the government from accessing it.

Here is the text of the statute that the government is charging:

"Whoever, before, during, or after any search for or seizure of property by any person authorized to make such search or seizure, knowingly destroys, damages, wastes, disposes of, transfers, or otherwise takes any action, or knowingly attempts to destroy, damage, waste, dispose of, transfer, or otherwise take any action, for the purpose of preventing or impairing the Government’s lawful authority to take such property into its custody or control or to continue holding such property under its lawful custody and control, shall be fined under this title or imprisoned not more than 5 years, or both."

Applying 18 U.S.C. § 2232(a) to the contents of a phone is unprecedented. Definitely not a slam dunk for the government.

The Supreme Court has never squarely decided the conflict that exists between Riley and Vergara.

It’s not clear cut if this guy had a legal obligation to not cause his own data to be deleted.

I bet he gets acquitted

 

[Gawernator]

By your logic then Trump is a child molestor. He deleted it!

Some people have never left their home town or traveled abroad or met people who travel regularly. Journalists face major risks when crossing borders because customs officials have broad authority to search you.

But some people will say well if he had nothing to hide… F- that. The government doesn’t have the right to warrantless searches. If you want to make exceptions then you should accept exceptions to other rights.

All of our rights are not unlimited, so no argument there. Border searches don’t require a warrant.

Nah by that logic Obama and Biden would have deleted it (deleted what?) that’s a terrible and comical reach because it has nothing to do with a border search and is completely off topic. Try to stay on topic to border searches.

Are you claiming the guy is a journalist? What risk do journalists face in America exactly? Nothing you said makes any sense or is relevant sorry. Are you saying I never traveled abroad? I was in the military I’ve been all over the world LMAO man you really should think before you write