In a Friday ruling issued by Judge Allison Burroughs of the District of Massachusetts in Lattarulo v. Mullin:
Andrew Lattarulo is a practicing immigration attorney who co-owns Georges Cote LLP, a firm that claims to represent “thousands of clients in active immigration proceedings.” Lattarulo also runs a popular Instagram channel featuring short videos in which he speaks about “know-your-rights information about U.S. immigration matters,” a format that often garners hundreds of thousands of views. Georges Cote LLP is presently under investigation by Homeland Security Investigations (“HSI”), the investigative arm of the Department of Homeland Security (“DHS”), for employing individuals who lack a current right to work in the United States.
Audai Cote, described as “the registered agent and the individual in charge of I-9 compliance” at the firm, received a Notice of Inspection on September 8, 2025. Unlike Lattarulo, “Cote is not an immigration attorney—he concentrates on personal injury.” The firm responded on September 12, 2025, and the government issued Cote a Notice of Suspect Documents on September 25, 2025. The firm was given ten days to attempt to verify the identity and work authorization of the employees named in the Notice of Suspect Documents.
Towards the end of September 2025, while the HSI probe continued, both Lattarulo and Cote traveled from Boston to Aruba for a weekend getaway. On September 27, 2025, Cote returned to Logan Airport from Aruba without incident. Lattarulo made the same trip the next day, September 28, 2025. He passed through Aruba’s preclearance and then boarded a flight back to Boston.
Upon his arrival at Logan Airport, three U.S. Customs and Border Protection (“CBP”) agents and one HSI officer detained Lattarulo as he deplaned. They seized his cell phone without a warrant and subsequently downloaded a complete copy of the data stored on the device. Eight days later, the government returned the phone via overnight delivery.
The data on the seized device is presently in a format that cannot be read or reviewed, but the government intends to convert it into an accessible format and search it if the Court allows. The material includes confidential information, including privileged attorney-client communications related to Lattarulo’s clients. {The Government was explicit that any search of the phone’s contents would employ a taint team to safeguard privileged information.} …
The court held that Lattarulo was likely correct in asserting that the search amounted to unconstitutional retaliation for his speech, and accordingly granted “a preliminary injunction enjoining Defendants from accessing the data obtained from the phone before this action is resolved”:
“[T]he law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out.” … The retaliation issue [here] turns on causation—that is, whether the seizure and search of Lattarulo’s cell phone would have occurred but for his protected speech.
Respondents have provided no evidence that searches of cell phones are frequently conducted during the kind of employment investigation at issue here, and Lattarulo has directed the Court to sources which suggest otherwise. Indeed, Lattarulo’s evidence suggests that any pursuit of criminal charges against employers for employing unauthorized immigrants is exceedingly rare. The fact that the government, after Lattarulo spoke out publicly against it, elected to adopt a highly unusual investigative method that appears designed to inflict a maximal burden on Lattarulo lends substantial support to an inference that its actions were pretextual.
The stage of the investigation at which the search occurred further bolsters the inference of pretext. Under HSI’s own policies, the agency “presumes that employers who, within 10 business days of receiving a Notice of Suspect Documents, verify the identity and/or employment authorization of the listed employees, or take appropriate actions to address the apparent employment of unauthorized workers, have demonstrated reasonable care under the INA.” The government’s search occurred only three days after Georges Cote first received a Notice of Suspect Documents, meaning that the agency was still early in its period of “presum[ing]” compliance when it occurred. Thus, the government’s actions here required it to short-circuit its orderly investigative procedures and cast aside its ten-day presumption of compliance in favor of immediately seizing Lattarulo’s phone. That aggressive deviation from protocol strongly suggests that the seizure did not arise from an ordinary investigative motive.
Further, Lattarulo has identified an “otherwise similarly situated individual not engaged in the same sort of protected speech,” who was not subjected to the same enforcement action: his law firm partner Audai Cote, who had the same or greater access to the firm’s employment records but did not speak publicly about immigrant rights. Indeed, if the government was truly intent on seizing evidence at the first possible opportunity, Mr. Cote, who returned to America a full day before Lattarulo, would have been a more logical target. Nonetheless, the government opted to wait until Lattarulo touched down in Boston the next day and subject only him to an intrusive cell phone search. The balance of the evidence currently before the Court thus suggests that Lattarulo is likely to establish that he would not have been searched except for his protected speech.
{It is true that the presence of probable cause generally precludes a finding of causation in a retaliatory arrest case, but the Supreme Court has recognized a limited exception for situations in which officers who “have probable cause to make arrests [for a particular crime] … typically exercise their discretion not to do so,” such as “an individual who has been vocally complaining about police conduct … [before being] arrested for jaywalking,” By analogy, the limited record before the Court suggests that searches of cell phones are not regularly conducted during the kind of employment investigation at issue here and that Lattarulo’s own law firm partner was not subjected to the same seizure and search of property.}
It is true that Defendants can “prevail … by showing that the [search] would have been initiated without respect to retaliation,” and here Defendants state that they have additional evidence which would show as much, but they have not provided it because they assert that doing so would prejudice an ongoing investigation…. [T]he Court concludes that the limited record that is before the Court suggests that Lattarulo is likely to succeed on the merits of his First Amendment retaliation claim and that the record before it is therefore adequate to grant the limited preliminary relief contemplated by this order.
The court did not resolve Lattarulo’s Fourth Amendment claim, because the preliminary injunction was granted on the basis of the First Amendment claim. Nevertheless, the court noted the following:
Plaintiffs’ Fourth Amendment claim largely hinges on the scope of the border search exception to the Fourth Amendment’s warrant requirement. That exception “is grounded in the government’s ‘inherent authority to protect, and a paramount interest in protecting, its territorial integrity.'” It permits routine border searches of electronic devices without any suspicion of crime, and allows non-routine border searches of electronic devices without a warrant, provided there is reasonable suspicion. Alasaad v. Mayorkas (1st Cir. 2021).
The question in this case is: reasonable suspicion of what? In other words, what sorts of suspected criminal activity can the government investigate through a warrantless border search? The First Circuit in Alasaad indicated that the exception applies to searches for “contraband” or for “evidence of contraband or a border-related crime.” Later in its opinion, however, it stated that the exception covers searches for “contraband, evidence of contraband, or for evidence of activity in violation of the laws enforced or administered by CBP or ICE.” In most instances, of course, “border-related crimes” and “activity in violation of the laws enforced or administered by CBP or ICE” are treated as synonymous, and the First Circuit in Alasaad seems to have intended to use those terms interchangeably.
The difficulty here lies in the fact that the alleged violation—employment of unauthorized aliens in the United States in violation of 8 U.S.C. § 1324a—implicates a statute enforced or administered by CBP or ICE but arguably is not a “border-related crime.” Based on the information before the Court, there appears to be no link between Lattarulo’s border crossing (or, more broadly, the government’s border-policing interest) and the suspected crime that justified the border search. Instead, it seems the government seized on a coincidental border crossing after a weekend trip as an opportunity to look for evidence of a domestic offense it was already investigating.
Even though the alleged violation concerns aliens and a statute administered by ICE, the Court remains unconvinced that the First Circuit in Alasaad intended for the border exception to apply to investigations into activity that occurred far from the border and bears no relation to the border crossing during which the search happened. Nor is the Court persuaded that applying the border search exception to this kind of investigation would advance the rationale behind the exception. Nonetheless, given the novelty of these questions and the absence of a necessity to decide, the Court will defer at this stage from making a definitive ruling on the border search’s applicability….
Mary Lemay and Patrick M. Hanley (Butters Brazilian LLP) represent Lattarulo.
