For years, the Supreme Court has recognized a border exception to the Fourth Amendment’s warrant requirement, allowing warrantless and often suspicionless searches of luggage, mail and other items crossing the border. With the rise of technology, generally, everyone carries an electronic device with them at all times. Therefore, there has been a rise in warrantless device searches at the border, creating a surplus of significant invasions of privacy. Smartphones coming across the border have created two critical questions within the court: the level of suspicion required to search and whether a warrant is required.
Federal appellate courts are split regarding the level of suspicion required for forensic searches. This split has reached seven circuits, with all sides set on their decisions. There is a considerable dispute over whether reasonable suspicion is needed to justify a forensic search of an electronic device. Many courts also have concerns over the permissible scope of a warrantless border search.
In 2021, the 1stCircuit in Alasaad v. Mayorkas held that warrantless searches extend to evidence of contraband as well as “evidence of activity in violation of the laws enforced or administered by U.S. Customs and Border Protection or Immigration and Customs Enforcement.” The 11th Circuit held similarly in 2018 in United States v. Touset, holding that border agents could conduct a forensic search of an individual’s cell phone at the border without showing reasonable or individualized suspicion. In 2023, the 8th Circuit in United States v. Haitao Xiang showed a generous view of the 11th Circuit approach and upheld a forensic search of Xiang’s phone upon his departure from the U.S. to China. Whereas in 2019, the 9th Circuit in United States v. Cano held that a warrant is required for a device search at the border that seeks data other than digital contraband. In 2018, the 4th Circuit, in the case of United States v. Kolsuz, established a judicial stance that bridged the gap between the 11th Circuit and the 9th Circuit. The court held that a warrantless forensic electronic search, conducted at the border, could be extended to prevent ongoing border-related crimes, including the illegal export of firearms. This ruling supported the idea that a forensic device search at the border could be justified in the context of aiding a domestic criminal investigation.
In May of 2023, a landmark decision by the U.S. District Court for the Southern District of New York was released in United States v. Smith, which held that for searches of cell phones at the border, agents first need to obtain a warrant. This ruling also notes an exception to the warrant rule for exigent circumstances but does not address whether the warrant rule extends to nonresidents or noncitizens. The holding in this case is the first decision to state that a warrant is required for cell phone border searches. However, several other district courts have required that agents have a reasonable, individualized suspicion before conducting a forensic cell phone search.
While the Supreme Court has yet to consider searching a device at the border, in 2014, they acknowledged in Riley v. California that the police must get a warrant to search an arrestee’s cell phone. Then, in 2018, the Supreme Court held in Carpenter v. United States that law enforcement must obtain a search warrant to access cell site location information. Many courts have used Riley and Carpenter’s rationale for border searches, given that cell phones are “unique and fundamentally different than other effects routinely carried on the person.” In Riley, the court used a balancing test, weighing the government’s interests in warrantless searches and the invasion of privacy due to the quality and quantity of personal information stored on cell phones.
Just as in Riley, the cell phone likely contains huge quantities of highly sensitive information—including copies of that person’s past communications, records of their physical movements, potential transaction histories, Internet browsing histories, medical details and more … No traveler would reasonably expect to forfeit privacy interests in all this simply by carrying a cell phone when returning home from an international trip.
Within the circuit split and the ruling of Smith, the 4th Circuit’s understanding of the modern-day protections of the border is most like the rationale used in Riley. The Fourth Amendment must be interpreted robustly in today’s world of modern technology and all the various forms of information stored within. Due to the constant expansion of technology, there is a need for stronger Fourth Amendment protection at the border. However, the ever-growing need to protect the U.S. borders is also weighed heavily in favor of the government. While some courts hold there is no reasonable suspicion needed, others reach the opposite conclusion, holding there is a warrant requirement. However, the 4th Circuit has created a middle ground between the two. While this extension of the normal border exception does not go as far as the Smith holding, it holds officers more accountable in needing a warrant for searches of evidence concerning border violations that are not ongoing or for criminal activity more generally. As of now, for cell phones at the border there will still be a circuit split until the Supreme Court decides to hear a case pertaining to the issue. As for criminal law practitioners, it is important to stay involved in the evolution of laws and to be aware of potential changes involving the Fourth Amendment right to privacy.