Overview
In a recent opinion, the Second Circuit held that the government may generally manually search travelers' cell phones at the border—even in the absence of a warrant or any level of suspicion—but left unresolved the question of whether a more intrusive forensic search would require reasonable suspicion.
The case, United States v. Chinwendu Alisigwe, involved a lawful permanent resident who was flagged by the United Kingdom Border Task Force for possession of a fraudulent passport, and was subsequently the subject of an investigation by the US government. On two subsequent trips through Kennedy Airport, federal officers looked through the defendant's cell phone manually and took photographs of messages or images that were of interest. After Alisigwe was subsequently charged with bank fraud, conspiracy to commit bank fraud, aggravated identity theft, and conspiracy to commit money laundering, he moved to suppress evidence obtained during the two airport cell phone searches. The district court denied the motion, and he was convicted at trial. The Second Circuit affirmed.
The Second Circuit's opinion lays down several clear markers:
- Although the district court had held that the cell phone searches were "reasonable" because the government had reasonable suspicion, "no suspicion is required before the government searches a traveler's property at the border."
- There is an exception for nonroutine searches; those searches do require reasonable suspicion. But the term "nonroutine searches" is "generally" reserved to invasive searches of the person, such as strip searches or body-cavity searches, not property searches.
- Although the Supreme Court held in Riley v. California, 573 U.S. 373 (2014) that cell phone searches require a warrant, "even in circumstances where a warrantless search is generally allowed," that holding does not apply to border searches. Riley dealt with searches incident to arrest, which are motivated by avoiding harm to officers and destruction of evidence, not border searches, which is grounded in the sovereign's right to control entry into the country.
- The border-search exception is not limited to instances in which the government is searching for contraband or other border offenses, because the government has a broader authority to search for evidence of criminality among those entering the country.
- The First Amendment provides no categorical special protection against cell phone searches at the border, even though cell phones record expressive conduct. Such special protection would be both over- and underinclusive, because cell phones can also contain evidence of non-expressive conduct, and other forms of physical evidence (such as paper notebooks) contain evidence of expressive conduct as well but do not receive any such protection.
Left unresolved, however, is whether a forensic, rather than manual, review of a cell phone constitutes a "nonroutine" search such that reasonable suspicion is required. While the circuits are so far all aligned in concluding that reasonable suspicion is not required before a manual cell phone search, and the Eleventh Circuit has extended that holding to forensic searches, such as those involving the use of special software, the Fourth and Ninth Circuits have held that forensic searches do require reasonable suspicion. The Second Circuit explicitly declined to address this question, but noted that as a practical matter, it may not be particularly important, because a manual search may often establish reasonable suspicion justifying a forensic search.
In light of the growing consensus that the government may manually search any traveler's cell phone at the border without a warrant or individualized suspicion, travelers possessing confidential business, legal, or personal information should plan for the possibility that devices they bring with them may be inspected by the government.
The Second Circuit's opinion is available here.
