Second Circuit says border agents can search cellphones without suspicion

The Second Circuit has held that federal agents can search your cellphone when you enter the United States without a warrant or reasonable suspicion..

The case is United States v.Alisigwe, issued on September 17. Under this ruling, the government may conduct a manual search of a traveler’s cellphone at the international border without any individualized suspicion. That is what happened here.

Alisigwe was a lawful permanent resident whom authorities suspected of using fraudulent identification documents to open bank accounts. In 2019, when Alisigwe returned to the United States through Idlewild Airport, Homeland Security and Customs and Border Protection officers stopped him for an inspection. An officer scrolled through Alisigwe's phone, and photographed material in his photo gallery, which contained names, birth dates, Social Security numbers, bank-account information and addresses belonging to other people. Two years later, officers again stopped Alisigwe at the airport and searched his phone. This time they photographed a Whats App message concerning one of the people whose identity had allegedly been stolen. When Alisigwe moved to suppress the cellphone evidence, the district court rejected the motion, reasoning that cellphone searches at the border required reasonable suspicion but that the officers had reasonable suspicion in this case.

The Second Circuit (Menashi, Lee [concurring] and Gonzalez [D.J.]) agreed that the evidence could be used, but for a different reason. The majority invokes the border-search exception to the Fourth Amendment. Ordinarily, a warrantless search requires an exception to the warrant requirement. But as for border searches, the Supreme Court holds that the government's interest in determining who and what enters the country permits routine searches without probable cause, a warrant, or reasonable suspicion.

The Second Circuit had previously distinguished between routine and non-routine border searches. Searches of luggage and other belongings generally are routine; highly intrusive searches of the person, such as strip searches and body-cavity searches, can require reasonable suspicion. The majority holds that a cellphone falls on the “property” side of the equation. The court recognizes that cellphones contain much personal information. But it reasoned that the government's border interest is not limited to physical contraband. Digital information can constitute contraband, and information on a cellphone may help determine whether a person is entitled to enter the country.

Judge Lee concurred in the judgment. She agreed that the particular searches in this case did not require a warrant or probable cause. But she disagreed with the majority's broader holding that all international travelers' cellphones may be searched without any individualized suspicion. She notes that a cellphone is not a suitcase and can contain medical information, financial records, personal messages, internet searches, location information and other highly private material. Judge Lee questioned whether the traditional rationale for border searches should extend to this comprehensive modern device. She also noted that Alisigwe did not challenge the district court's finding that reasonable suspicion actually existed. As Judge Lee sees it, the court did not need to decide whether suspicionless cellphone searches are constitutional.