Second Circuit Rejects Limits on Border Searches of Cell Phones
· Reason
For the last decade or so, lower courts have been grappling with how the Fourth Amendment applies to searches of digital devices such as cell phones at the international border. Physical property can be searched when it crosses the border to advance sovereign interests in preventing the important of contraband, enforcing immigration laws, and making sure tariffs are paid. But do these rationales still apply to allow the search of a cell phone? When you travel internationally, should the U.S. government be allowed to search your cell phone without limit? Or should a warrant be required, or at least sufficient legal suspicion?
My own view is that these government interests aren't advanced by digital searches, and that a warrant should be needed to search a cell phone at the border, at least in the context of devices held by U.S. citizens. As I explained my book, The Digital Fourth Amendment, I see this as just like Riley v. California, the case holding that the search-incident-to-arrest exception does not apply to cell phones. As in Riley, the physical world government interests that justify the rule for physical property just don't carry over to the digital setting. Extending the rule to cell phones has to "rest on its own bottom," Riley tells us, and I don't think it can.
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Think about it. You can't hide a person in a phone, and the data inside a cell phone isn't subject to tariffs. And while there is an interest in preventing contraband from being brought into the country in the form of digital CSAM (child sexual abuse materials), border searches of digital devices aren't actually conducted for that reason. The government searches phones when people cross the border for ordinary criminal enforcement reasons. It's trying to catch bad people, not prevent the importation of contraband. The government is searching at the border only because carrying cell phones paired with traditional border search powers gives them a windfall that helps them catch criminals. I don't think the Fourth Amendment allows them that windfall, given that these searches are categorically undertaken for ordinary criminal law enforcement, not the special sovereignty concerns justifying the border search exception. So I think a warrant is needed, at least for searches of citizens' devices. If you want the details of my argument, you can read the chapter of the book on this posted at SSRN.
Yesterday, the Second Circuit disagreed, however. In United States v. Alisigwe, the Second Circuit ruled (per Judge Menashi) that no warrant and not even any suspicion is needed to search a cell phone at the border. The case involves Chinwendu Alisigwe, a lawful permanent resident who was suspected of engagement in fraud schemes. Returning to the United States from international flights, Alisigwe was stopped at JFK by border officials who asked him to unlock his phone. He did so. Border officials looking for fraud records skimmed through his phone and saw evidence of Alisigwe's fraud crimes.
According to the Second Circuit, this was categorically allowed:
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). "The border-search exception is grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country." Id. at 620. Because "[t]he Government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border," United States v. Flores-Montano, 541 U.S. 149, 152 (2004), "searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border," Ramsey, 431 U.S. at 616.
Under our precedents, no suspicion is required before the government searches a traveler's property at the border. See United States v. Irving, 452 F.3d 110, 123 (2d Cir. 2006). Searches of property "are made reasonable by that person's decision to enter this country." Id. To be sure, nonroutine searches, which are "more invasive searches, like strip searches, require reasonable suspicion." Id. But we have held that "the label 'non-routine' should generally be reserved for intrusive border searches of the person (such as body-cavity searches or strip searches), not belongings." United States v. Levy, 803 F.3d 120, 123 n.3 (2d Cir. 2015) (emphasis added). Because a cellphone is property, our precedents establish that the government does not need to have reasonable suspicion before searching a traveler's cellphone at the border.
We reject Alisigwe's invitation to extend Riley v. California, 573 U.S. 373 (2014), to conclude that a "search of a cellphone requires a warrant, even in circumstances where a warrantless search is generally allowed." Appellant's Br. 32. Riley involved the exception to the warrant requirement for a search incident to an arrest. That exception aims to avoid "the two risks" of "harm to officers and destruction of evidence." Riley, 573 U.S. at 386. In Riley, the Court explained that because "[t]here are no comparable risks when the search is of digital data," the rationale for the search-incident-to-arrest exception does not have "much force with respect to digital content on cell phones." Id. That holding does not implicate the border-search exception, which relies on a different rationale.
Alisigwe asks us to limit the border-search exception to exclude searches "for evidence of crime unrelated to contraband or other border offenses." Appellant's Br. 34. But we have previously held that "the validity of a border search does not depend on whether it is prompted by a criminal investigative motive." Irving, 452 F.3d at 123. Our precedent holding that the government may perform pretextual searches at the border without a warrant means that the government is not limited to searching for contraband or evidence of border offenses. That is because the government's interest at the border is not limited to detecting physical contraband. Rather, the government has "broad authority to control who and what enters the country." Tabbaa v. Chertoff, 509 F.3d 89, 102 n.5 (2d Cir. 2007). Searching for evidence of criminality among those entering the country is an exercise of that authority.
According to Judge Menashi, Riley does not apply because the government maintains an interest in detecting digital contraband:
Applying the logic of Riley to the border-search exception leads to the conclusion that the search of a cellphone at the border is a routine search. First, we consider "the government interest." Riley, 573 U.S. at 386. Unlike the two specific risks that the search-incidentto-arrest exception aims to avoid, the border-search exception furthers the government's much broader "interest in preventing the entry of unwanted persons and effects." Flores-Montano, 541 U.S. at 152. That interest is implicated with equal force "when the search is of digital data." Riley, 573 U.S. at 386. The digital data may itself be the material that the government seeks to exclude from the country. In other words, "cell phones can contain the contraband the border search doctrine means to intercept" such as "digital contraband in the form of child pornography." United States v. Mendez, 103 F.4th 1303, 1309 (7th Cir. 2024). "The government's interest in detecting child pornography at the border is just as strong as its interest in intercepting firearms, narcotics, or any other prohibited item." Id.; see also United States v. Touset, 890 F.3d 1227, 1235 (11th Cir. 2018) ("'[D]igital' child pornography poses the same exact 'risk' of unlawful entry at the border as its physical counterpart.").
In this case, Alisigwe sought to bring into the country lists of stolen personally identifiable information. That is contraband whether in digital or physical form. See United States v. Jackson, 618 F. App'x 472, 476-78 (11th Cir. 2015) (describing "a notebook containing names, social security numbers, and birthdates" as "contraband"). The government's interest in detecting such information does not change based on the format in which it is recorded.
Of particular interest, at least to me, Judge Menashi specifically addressed my argument that the border search power should not extend to digital devices because digital border searches only advance interests in criminal law enforcement, not one of the traditional rationales of the border search exception:
As we have explained, the government may conduct suspicionless border searches "pursuant to the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country." Ramsey, 431 U.S. at 616. The examination is not limited to the detection of contraband or other particular items. We have long held that "the validity of a border search does not depend on whether it is prompted by a criminal investigative motive." Irving, 452 F.3d at 123. In fact, whether the motivation for a customs officer to search a traveler "arises entirely from her own investigation or is prompted by another federal agency is irrelevant to the validity of a border search" because the customs officer is not "prevented by the Fourth Amendment from conducting such a search merely because it furthers another federal agency's criminal investigation." Levy, 803 F.3d at 123-24. Even if "the ease of avoiding physical searches underscores that the searches are designed to identify wrongful actors, not to find contraband," Kerr, supra note 12, at 124-25, that would not undermine the justification for a border search because the border-search exception furthers the governmental interest in preventing wrongful actors from entering the country.
The court did not take a view on whether a more invasive forensic search might lead to a different result, as this case merely involved a so-called manual search, in which the officer used the operating system and the apps to just look through files available to the user. The court also rejected a First Amendment challenge. Judge Eunice Lee concurred, agreeing that there was no warrant requirement but arguing that some suspicion should be required.
I greatly appreciate the engagement with my scholarship in both the majority and concurring opinions. For law professors, judicial engagement with our work is always a tremendous honor. With that said, I figured it might be useful to be specific about where I think the Second Circuit erred on this issue.
First, as I explain in my chapter, I don't think the contraband argument quite works. The problem is that the government interest relating to contraband that justifies the physical border search exception is not to "detect" contraband, as the Second Circuit suggests, but to prevent its importation. Think about fentanyl. The government has an interest in preventing the importation of fentanyl to prevent people in the United States from using fentanyl. The idea is that the government can find it to block its entrance into the United States. If less fentanyl can come in, less fentanyl will be used here, to the benefit of the United States. But here the government was looking for the fraud records to prove a fraud, not because it cared where the records were located. They weren't trying to stop the records from coming in. This was a law-enforcement evidence interest, not a keep-it-out contraband interest.
Second, on the broader idea of allowing interest in criminal law enforcement to justify the border search power, I think the Court may have blended two separate questions that need to be kept separate: (1) the rationale that justifies a particular reasonableness rule and (2) whether, in applying that rule, pretextual use of the doctrine is permitted.
Start with (1). In the context of physical things, the Supreme Court has explained, the border search power is justified by the need to protect the sovereign interests in contraband detection, immigration enforcement, and ensuring that tariffs are paid. Criminal law enforcement is not on that list, obviously. It is simply not a recognized interest that the border search exception recognizes, for the obvious reason that this is always the interest at play in criminal cases and we recognize the warrant requirement as the ordinary response to that interest.
On the other hand, Fourth Amendment caselaw is generally wary of looking to an officer's subjective intent to determine the constitutionality of the officer's action. That's the issue at (2). There are exceptions to the rule, in which purpose is considered. But in general, an officer's subjective intent is irrelevant. So in the physical setting, you get, first, border exception at step (1), and then pretextual use for criminal law enforcement at step (2).
As I read the Second Circuit's opinion, the court blends these two distinct questions. Because criminal law enforcement pretexts are allowed (question 2), criminal law enforcement is treated as a legitimate government interest that justifies border searches (question 1). The government can search cell phones at the border to gather evidence about "wrongful actors"— that is, criminals. There's just one combined step, with criminal law enforcement treated as a legitimate interest. In effect, the government is allowed to look through everyone's phone for evidence of crime without any cause because the government has an interest in solving crime that the border doctrine allows it to pursue.
In my view, though, it's important to keep these two questions separate. Following the method of Riley, you have to examine whether digital searches advance the interests that the Supreme Court says justify the border search exception. Using the pretext allowance rule to broaden that set of interests conflicts with the Riley methodology by expanding the government interests, to, well, absolutely everything and anything, as they're all possible pretexts. I don't think that's consistent with Riley.
Will the Supreme Court take this case, or at least this issue, sometime soon? Before Chatrie, I would have said it's unlikely. There's not a clear enough split, the traditional thinking would be. But Chatrie showed that the Court may be interested in taking on major Fourth Amendment issues in the digital age even in the absence of a split.
If the Court could take on geofencing in Chatrie, it could take on the border search exception for cell phones. And it should. This is a very important issue, and it's not easy: The Alisigwe case was argued all the way back in March 2025. Lots of lower courts have weighed in on the question, with lots of different rationales. At this point, whatever the right answer is, it should come from the Supreme Court.
As always, stay tuned.
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