Why Prosecutors Cheat: U.S. v. Cano, Ninth Circuit Court of Appeals, Filed August 16, 2019

In U.S. v. Cano, the Ninth Circuit Court of Appeals reversed a conviction for importing cocaine because a warrantless search of his cell phone at the border violated the Fourth Amendment. This is why prosecutors cheat – the Court did not reverse the conviction based on the government’s Brady violations, instead sidestepping the issue and ignoring what seems like clear ethical violations – if they reverse based on the Fourth Amendment issue, there is no need to reach the prosecutorial misconduct issue.

This is why prosecutors cheat, in state and federal courts across the country. This is why prosecutors suborn perjury, threaten witnesses, pay their witnesses with money or freedom, and hide exculpatory evidence. Because trial courts, appellate courts, and state bar associations stick their heads in the sand and allow it to continue…

Warrantless Cell Phone Searches at the Border

Cano’s conviction was reversed because federal agents searched his cell phone without a warrant. Although there is an administrative exception to the warrant requirement at the border, what agents can do is limited and, in this case, they went too far.

Riley v. California

In Riley v. California, the US Supreme Court held that law enforcement cannot search a person’s cell phone without a warrant and that a warrantless cell phone search is not justified by the search incident to arrest exception to the Fourth Amendment’s warrant requirement.

But what if the search happens at the border?

Border Searches

Border searches, including searches of cell phones or computers, do not require a warrant and do not even require “particularized suspicion,” as long as they are “routine inspections and searches of individuals or conveyances seeking to cross our borders.”

In the context of a cell phone, this will usually mean that: 1) “manual searches of cell phones at the border are reasonable without individualized suspicion (agents can look at the phone, including call history and text messages); but 2) “forensic examination of a cell phone requires a showing of reasonable suspicion” (if agents are going to extract data from the phone using software, they must have a good reason).

Because the agents in Cano’s case took his cell phone and extracted data from it without any individualized suspicion that it would contain evidence of a crime, the Court reversed his conviction.

Reversed, end of story, nothing else to see here…

Why Prosecutors Cheat – Move Along, Nothing to See Here

Was the Fourth Amendment violation Cano’s only complaint on appeal?

It was not – the Ninth Circuit conveniently sidestepped the issue of prosecutorial misconduct and Brady violations after reversing on the Fourth Amendment issue. This is why prosecutors cheat – because appellate courts allow them to continue cheating.

Cano had a credible claim that he did not know that the drugs were concealed in his vehicle – his cousin, Medina, was a member of the Latin Kings, a gang with a history of importing cocaine, Medina had access to the vehicle, and he had a previous conviction for cocaine possession:

In preparation for trial, Cano indicated his intent to present a third-party culpability defense claiming that his cousin, Jose Medina, was responsible for placing the drugs in Cano’s spare tire without Cano’s knowledge. Cano proffered evidence that Medina had a key to Cano’s car and had driven it shortly before Cano’s attempted border crossing, that Medina had a criminal record including a conviction for cocaine possession, that Medina was a member of a Chicago based gang called the Latin Kings, and that the Latin Kings sold cocaine within the United States and were involved with a cartel that trafficked drugs across the border.

When Cano pointed this out to the government, did they investigate the cousin’s involvement? Of course not. They paid a visit to Medina and offered him both immunity from prosecution and immigration papers if he would testify against Cano at trial:

Following Cano’s implication of Medina, the government contacted Medina and promised him immunity and immigration papers in exchange for his cooperation.

Why would they do that?

Obviously, the government discovered that Medina was not involved in the drug trade, he was not a member of the Latin Kings after all, and he was an innocent victim of his evil cousin Cano. Which might have sounded reasonable, until Medina later offered to help the government make undercover buys of 20-25 kilos of cocaine at a time:

Medina initially denied being involved with drugs, but later contacted the government on his own and offered to help them with the “biggest RICO case” and “drug seizures of 20 to 25 kilograms at a time.”

As part of his defense, Cano asked for materials from the FBI and the DEA regarding drug trafficking by Medina and the Latin Kings:

As part of his defense, Cano sought additional discovery from HSI, the Federal Bureau of Investigation (FBI), and the Drug Enforcement Agency (DEA) regarding: (1) records linking Medina to drug sales, distribution, or trafficking; and (2) records linking the Latin Kings to drug trafficking from Mexico to Southern California.

The district court ordered the government to turn over the materials (they are required to disclose this type of material under Brady v. Maryland whether the defense requests it or not). The government ignored the district court’s order and instead turned over “Medina’s immigration file and his Bureau of Prisons record.”

The government then asked the Court to reconsider and excuse it from producing any material that was held by the DEA or FBI, because the DEA and FBI refused to turn the information over to him and he had no control over those agencies

The District Court agreed with the government, finding that their request was reasonable since the US Attorney’s Office has no control over the DEA or FBI:

The district court granted the motion to reconsider, finding that the prosecutor did not have access to the evidence when he was “rebuffed” by agencies over which he had no control.

This is why prosecutors cheat – because trial courts allow them to continue cheating.

Does the US Attorney’s Office have no control over the DEA or FBI in the context of a pending trial? Does the US Attorney have no obligation to seek out exculpatory material from US government law enforcement agencies?

What About Kyles v. Whitley?

The US Supreme Court settled that question over 20 years ago in Kyles v. Whitley, where they found that 1) Brady material includes evidence that would tend to impeach the government’s investigation (definitely an issue that Cano needed to explore) and 2) the government has an obligation to get exculpatory evidence that is in the custody of law enforcement:

[The government] pleads that some of the favorable evidence in issue here was not disclosed even to the prosecutor until after trial, Brief for Respondent 25, 27, 30, 31, and it suggested below that it should not be held accountable under Bagley and Brady for evidence known only to police investigators and not to the prosecutor.

Since, then, the prosecutor has the means to discharge the government’s Brady responsibility if he will, any argument for excusing a prosecutor from disclosing what he does not happen to know about boils down to a plea to substitute the police for the prosecutor, and even for the courts themselves, as the final arbiters of the government’s obligation to ensure fair trials.

Even if the prosecutor did not know about the exculpatory evidence, they are accountable for evidence that is in the custody of law enforcement agencies – they have a duty to seek out exculpatory information in the possession of law enforcement and disclose it to the defense.

Why Prosecutors Cheat: Appellate Courts Avoid the Issue Whenever Possible

If the Ninth Circuit had taken up the issue of prosecutorial misconduct, they would have had to either 1) find that a Brady violation had occurred (and, necessarily, prosecutorial misconduct), or 2) ignore the US Supreme Court’s holding in Kyles v. Whitley.

Instead, they were able to dodge the issue and avoid making the prosecutors, FBI, and DEA angry by first deciding the Fourth Amendment issue and declining to address the prosecutorial misconduct:

Because we conclude that the district court erred in denying Cano’s motion to suppress, we vacate Cano’s conviction and do not reach his claim of prosecutorial misconduct.


Conviction reversed, everybody’s happy, no need to talk about prosecutorial misconduct or how the DEA, FBI, federal prosecutor, and a federal judge all agreed to violate court rules, ethics rules, Brady v. Maryland, and ignore Kyles v. Whitney.

The district court sanctioned the government’s conduct. The appellate courts deftly sidestepped the issue without comment, which could be interpreted by some as sanctioning the government’s conduct. There will be no ethics investigation by the state bar. There are no grounds for a civil rights lawsuit.

Which is why the government will do it again. And again. And again. And again. And again.

Federal Appellate Attorney in Columbia, SC

Elizabeth Franklin-Best is a federal white collar criminal defense and federal appeals lawyer located in Columbia, SC.

For more information, call us at (803) 331-3421 or send us an email to set up a consultation about your case.