by Douglas Ankney

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Those hallowed words enshrined in the Fourth Amendment to the U.S. Constitution were, and are, intended to protect citizens from abusive, harassing, and over-intrusive policing. The Fourth Amendment does not protect citizens from all searches, but it protects against unreasonable searches. Carroll v. United States, 267 U.S. 132 (1925). And all searches conducted without a warrant are presumptively unreasonable—unless the government can justify the warrantless search under one of the carefully crafted exceptions to the warrant requirement. Riley v. California, 573 U.S. 373 (2014).

But in the context of forensic searches of cellphones, i.e., searches of the contents of cellphones, at America’s borders, are those hallowed words and intended protections merely impotent splatters of ink on parchment? Cellphones are unique in many respects. With nearly every person in the U.S. owning and carrying one, the Supreme Court of the United States (“SCOTUS”) has likened the ubiquitous nature of cellphones to a bodily appendage. Riley. And in the context of searches, seizures, and the Fourth Amendment, SCOTUS has explained that cellphones are unique in their potential evidentiary value both quantitatively and qualitatively.

Quantitatively, the data on a person’s cellphone may be the equivalent of 100,000 pages of text or more. Id. And qualitatively, the data includes text messages, phone books, picture messages, photographs, internet browsing histories, medical histories, contact lists, records of social engagements, registries of social clubs and other organizations, records of religious and sexual preferences, political affiliations, leases, utility bills, financial information—the list is seemingly endless. Id.

Because of the unique nature of cellphones, SCOTUS declined to apply the “search-incident-to-arrest” exception (“SITA Exception”) to the warrant requirement when law enforcement searches the contents of a cellphone after a suspect is arrested. Regarding the SITA Exception, SCOTUS explained that “[w]hen an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated.

In addition, “it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction…. There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Riley (quoting Chimel v. California, 395 U.S. 752 (1969)). And in United States v. Robinson, 414 U.S. 218 (1973), SCOTUS explained that the SITA Exception applies simply because of the arrest.

In Robinson, the arresting officer searched an arrestee after arresting him on a charge of driving with a revoked license. The officer removed a crumpled cigarette package from the arrestee, opened the package, and discovered heroin. SCOTUS rejected the argument that the opening of the package was not a protective sweep for weapons and, therefore, not covered by the SITA Exception. SCOTUS held that “a custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to arrest requires no additional justification.” Robinson. And because, on the surface, the removal of a cellphone from an arrestee and searching it appears no different than removing a cigarette package and searching it, the government argued in Riley that the SITA Exception applies to cellphones.

But SCOTUS rejected that “mechanical application.” SCOTUS explained that in determining whether a particular type of search is to be exempted from the warrant requirement, the Court weighs the degree of the intrusiveness of the search upon an individual’s privacy against the degree to which the search is needed for promotion of legitimate governmental interests. Riley (citing Wyoming v. Houghton, 526 U.S. 295 (1999)).

The government’s interest in the SITA Exception is to ensure the safety of the officers by them performing a protective sweep for weapons and for materials that might effectuate an escape and to retrieve any destructible evidence. Searching the contents of a cellphone seized from an arrestee and in the possession of police does little to advance those governmental interests. Conversely, due to the type and amount of data on a cellphone, an arrestee’s privacy interests in the contents of the cellphone cannot be overstated. For these reasons, SCOTUS declined to apply the SITA Exception to cellphones. Riley. The contents of cellphones may still be searched but only when a warrant is obtained or when some other recognized exception to the warrant requirement exists. Id.

However, in addition to SCOTUS’ holding that cellphones are unique in the context of the Fourth Amendment’s protections, SCOTUS has also held that searches at America’s borders or “points of entry” are unique with regard to the Fourth Amendment. “The Congress which proposed the Bill of Rights, including the Fourth Amendment, to the state legislatures on September 25, 1789, 1 Stat. 97, had, some two months prior to that proposal, enacted the first customs statute, Act of July 31, 1789, c. 5, 1 Stat. 29. Section 24 of this statute granted customs officials ‘full power and authority’ to enter and search ‘any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed….’

This acknowledgment of plenary customs power was differentiated from the more limited power to enter and search ‘any particular dwelling-house, store, building, or other place …’ where a warrant upon ‘cause to suspect’ was required.” United States v. Ramsey, 431 U.S. 606 (1977).

SCOTUS explained that the “historical importance of the enactment of this customs statute by the same Congress that proposed the Fourth Amendment is, we think, manifest…. ‘The seizure of stolen goods is authorized by the common law; and the seizure of goods forfeited for a breach of the revenue laws, or concealed to avoid the duties payable on them, has been authorized by English statutes for at least two centuries past; and the like seizures have been authorized by our own revenue acts from the commencement of the government. The first statute passed by Congress to regulate the collection of duties, the act of July 31, 1789, 1 Stat. 29, 43 contains provisions to this effect. As this act was passed by the same Congress which proposed for adoption the original amendments to the Constitution, it is clear that the members of that body did not regard searches and seizures of this kind unreasonable, and they are not embraced within the prohibition of the amendment.’” Ramsey (quoting Boyd v. United States, 116 U.S. 616 (1886)).

The Ramsey Court further observed that in Carroll, SCOTUS explained: “It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travelers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country … have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.”

“Border searches [or their equivalent such as searches at international airports or other points of entry into the U.S.], then, from before the adoption of the Fourth Amendment, have been considered to be ‘reasonable’ by the single fact that the person or item in question had entered into our country from outside. There has never been any additional requirement that the reasonableness of a border search depend on the existence of probable cause. This 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.” Ramsey.

SCOTUS further explained “the ‘border search’ exception is not based on the doctrine of ‘exigent circumstances’…. It is a longstanding, historically recognized exception to the Fourth Amendment’s general principle that a warrant be obtained, and in this respect is like the similar ‘search incident to lawful arrest’ exception treated in United States v. Robinson, 414 U.S. 218 (1973).” Ramsey. In United States v. Montoya de Hernandez, 473 U.S. 531 (1985), the defendant was suspected of smuggling drugs in her alimentary canal and was detained at an international airport for several hours until she had a bowel movement whereupon numerous balloons filled with cocaine were recovered.

SCOTUS has differentiated between “routine searches of persons and effects of entrants” that “are not subject to any requirement of reasonable suspicion, probable cause, or warrant” and non-routine searches that require “reasonable suspicion” defined as border officials having a “particularized and objective basis for suspecting the particular person” is smuggling contraband. Montoya de Hernandez.

However, SCOTUS seemed later to limit the required “reasonable suspicion” to non-routine searches of the person, explaining that “the reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person—dignity and privacy interests of the person being searched—simply does not carry over to vehicles. Complex balancing tests to determine what is a ‘routine search of a vehicle, as opposed to a more ‘intrusive’ search of a person, have no place in border searches of vehicles.” United States v. Flores-Montano, 541 U.S. 149 (2004).

From these decisions, it is evident there are competing considerations behind a determination of the state of the law with regard to searches of the contents of cellphones at America’s points of entry. There is the government’s interest in protecting the nation from the entry of dangerous persons, plans and information to assist criminal activity, and contraband versus the individual’s monumental privacy interests in the cellphone’s contents. Since SCOTUS likened the border search exception to the SITA Exception that is inapplicable to cellphones, does the border search exception apply to cellphones? Is the search of a cellphone routine or so intrusive as to become non-routine? Without any clear guidance from SCOTUS, the rulings from the U.S. Courts of Appeals and U.S. District Courts on searches of cellphones at the border are a jumbled and confusing mix.

In United States v. Touset, 890 F.3d 1227 (11th Cir. 2018), Judge Jill Pryor concluded that neither reasonable suspicion nor a warrant is necessary to permit law enforcement to conduct a forensic search of a cellphone at the border. Similarly, Judge Sandra Lynch wrote in Alasaad v. Mayorkas, 988 F.3d 8 (1st Cir. 2021), that Riley does not “by its own terms apply to border searches, which are entirely separate from the search incident to arrest searches discussed in Riley.” In Alasaad, Judge Lynch rejected the plaintiffs’ civil suit challenging Customs and Border Patrol (“CBP”) Directive 3340-049A and Immigration and Customs Enforcement (“ICE”) Directive 7-6.1.

Both directives permit border agents to search electronic devices without a warrant but reasonable suspicion is required for more advanced searches—such as downloading a device’s data to a hard drive. Judge Lynch broke the scope of searches into three categories: (1) searches for “contraband”; (2) searches for “evidence of contraband”; (3) and searches for “evidence of activity in violation of the laws enforced or administered by CBP or ICE.” Judge Lynch posited that the border exception is necessary to prevent “anything harmful” from entering the country and advised that “Congress is better situated than the judiciary to identify the harms that threaten us at the border.”

Likewise, in United States v. Haitao Xiang, 67 F.4th 895 (8th Cir. 2023), the Court upheld the warrantless forensic search of the defendant’s cellphone as he was about to exit the U.S. and return to China. While the Haitao Xiang Court expressed a favorable view of the Touset decision, the Court also concluded that, in the case before it, the CBP had reasonable suspicion to search the defendant’s cellphone based on tips from the FBI that the defendant had violated the Economic Espionage Act of 1996. But in United States v. Cano, 973 F.3d 966 (9th Cir. 2019), the Court ruled that warrantless searches of cellphones at the border are limited to searches for “digital contraband” only. The Cano Court observed that this “detection-of-contraband justification would rarely seem to apply to an electronic search of a cell phone outside the context of child pornography.” The Court determined that an officer’s scrolling through defendant Miguel Cano’s text messages was a “manual search” permitted by the border exception, but the officer’s action of recording phone numbers from the cellphone “went too far” as “[t]hose actions have no connection whatsoever to digital contraband.”

However, in United States v. Kolsuz, 890 F.3d 133 (4th Cir. 2018), Judge Pamela Harris held that manual searches of cellphones at the border are permitted under the border exception without any warrant and without any degree of reasonable suspicion. But particularized, reasonable suspicion is required for a forensic search. Even though the defendant’s cellphone was searched at a location and a time removed from the airport where the seizure of the cellphone had occurred, Judge Harris explained that the “justification behind the border search exception is broad enough to accommodate not only direct interception of contraband as it crosses the border, but also the prevention and disruption of ongoing efforts to export contraband illegally, through searches initiated at the border.”

Finally, in United States v. Smith, 2023 U.S. Dist. LEXIS 82455 (S.D.N.Y. 2023), Judge Jed Rakoff ruled that the above-referenced courts had “understated the Riley holding and overstated the border exception.” Judge Rakoff ruled that searches of cellphones at the border require officials to first secure a warrant. Underpinning Judge Rakoff’s ruling is his assertion that the government’s purpose in the border exception, viz., preventing “a person or thing outside the country from unlawfully coming into it,” is not advanced by forensic searches of cellphones because the data viewed on the cellphone is not actually located on the cellphone but is stored in the “cloud”—a server that is already in the U.S.

Until SCOTUS weighs in on the issue, it appears that whether or not the Fourth Amendment protects an individual’s privacy interests in his or her cellphone at the border and points of entry is determined not by the U.S. Constitution but by the which court has jurisdiction over the point of entry or exit the individual happens to utilize.   

Additional source: lawfaremedia.org