Government officers can search the cell phones of people entering the United States without a warrant or probable cause, a federal appeals court ruled on Sept. 17.
“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,” he added later.
The ruling came in response to an appeal from Chinwendu Alisigwe, a legal permanent resident whose phone was searched after he landed at an airport in New York in 2019. The evidence was used in a trial that resulted in his conviction for fraud.
A lawyer representing Alisigwe did not respond to a request for comment by the time of publication.
A spokesperson for Customs and Border Protection, whose officers searched the phone, told The Epoch Times in an email that the agency “has statutory authority to conduct border searches of electronic devices for all persons entering or departing the United States, regardless of citizenship, to enforce laws addressing terrorism, child exploitation, drug- and human-smuggling, visa fraud, and national security threats.”
“The border search will only include an examination of information that is present on the device at the time it is presented for inspection,” the spokesperson said, adding that in fiscal year 2025, less than 0.01 percent of all travelers that arrived in the United States had their electronic devices searched.
Alisigwe’s attorneys had pointed to a 2014 Supreme Court ruling in a separate case that held that searching cellphones requires a warrant, even in circumstances where a warrantless search is generally permitted, absent certain exceptions.
But that case does not implicate the exception to legal protections for border searches, according to the Second Circuit.
“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,’” Menashi wrote.
“Searching for evidence of criminality among those entering the country is an exercise of that authority.”
The First Amendment also does not limit the government’s ability to search phones at the border, he said.
Circuit Judge Eunice Lee, in a concurring opinion, agreed that neither a warrant nor probable cause is required to search a phone at the border but that such searches do require reasonable suspicion.
“A standard that permits a search of every international traveler’s cellphone without suspicion means that any person who goes on vacation or a business trip anywhere outside the country can be subject, upon their return home, to review of their medical records, financial information, personal messages, internet search and viewing habits, location tracking, and any other private information that may be contained on their cellphone through stored data, apps, or cloud connection,” Lee said.
“This unrestricted authority to search is not a carefully-crafted exception to the Fourth Amendment to address an immigration or contraband-related interest in controlling who or what comes into the country; it eliminates Fourth Amendment protections in this context.”
The Knight First Amendment Institute, based at New York’s Columbia University, was among the critics of the ruling.
Today’s decision leaves Americans’ most sensitive information open to search at the border without any suspicion at all,” Scott Wilkens, a senior counsel at the institute, said in a statement.
“Our phones hold our private thoughts and associations, photographs of our family and friends, and a log of our nearly every movement. The First Amendment should require the government to get a warrant before searching them. We’re disappointed the court declined to recognize that.”
The matter may eventually reach the Supreme Court, and it’s not clear how justices will rule, Orin Kerr, a professor at Stanford Law School, said on X.