A US federal appeals court has ruled that Trump administration border agents may manually search a traveller's cellphone at the border without a warrant, probable cause or reasonable suspicion.
The Second Circuit issued its decision on 17 September in United States v Alisigwe, a case involving a lawful permanent resident whose phone was searched at John F Kennedy International Airport in New York.
For context, the case began with the prosecution of Chinwendu Alisigwe on fraud and money-laundering charges. His lawyers argued that evidence taken from two searches of his phone should have been excluded because agents lacked a warrant.
A lower court allowed the evidence, finding officers had reasonable suspicion, but the appeals court went further. It held that no suspicion was needed at all.
Border Agents Can Search Cellphones as Property
The three-judge panel affirmed Alisigwe's conviction and said the manual inspection of his device qualified as a routine border search. That matters because routine searches at the US border have long been treated differently from searches conducted inside the country.
'Routine searches at the border are reasonable simply because those searches occur at the border,' the court said. 'Because the search of Alisigwe's cellphone was a routine search, the government was entitled to conduct the search without suspicion.'
The ruling applies within the Second Circuit, which covers New York, Connecticut and Vermont. It is especially significant for international passengers arriving through airports including JFK, one of the United States' busiest gateways.
The court treated the manual inspection of Alisigwe's cellphone as a search of property at the border, bringing it within the longstanding exception that permits routine searches without individualized suspicion.
That comparison will jar many travellers. A suitcase may hold clothes and toiletries. A modern phone can contain years of messages, photographs, location information, health records, work files and private conversations.
Yet the panel concluded that the established distinction between routine and non-routine searches turns chiefly on intrusions into the body, not the depth of information held in an item.
In the court's words, 'the label 'non-routine' should generally be reserved for intrusive border searches of the person,' including strip searches and body-cavity searches, rather than searches of belongings.
The Alisigwe Searches at JFK
According to the opinion, Homeland Security Investigations and Customs and Border Protection officers stopped Alisigwe at JFK in 2019 after UK border authorities had seized a fraudulent South African passport bearing his photograph. An officer asked him to unlock his phone, then scrolled through its contents and photographed images stored in the device's gallery.
The court said those images included names, dates of birth, Social Security numbers, bank-account details and addresses belonging to other people.
Officers searched the phone again more than two years later after Alisigwe returned from another international trip. On that occasion, they photographed a WhatsApp message concerning an individual whose identity had allegedly been stolen.
A jury later convicted Alisigwe of conspiracy to commit bank fraud, bank fraud and conspiracy to commit money laundering. The court upheld his five-year prison sentence, as well as sentencing enhancements based on an intended loss of at least $3.5 million (£2.61 million) and obstruction of justice.
The judges did not accept Alisigwe's argument that the Supreme Court's landmark cellphone decision in Riley v California required a warrant. In Riley, the Supreme Court held that police generally need a warrant to search the contents of a phone seized during an arrest.
But the Second Circuit said the two situations rest on different legal foundations. The search-incident-to-arrest exception concerns officer safety and the preservation of evidence.
The border-search exception instead rests on the government's authority to control who and what enters the country. Different doctrine, different result.
'That holding does not implicate the border-search exception, which relies on a different rationale,' the panel wrote of Riley.
A Limit, Though a Narrow One
The judgment concerns manual searches only. In Alisigwe's case, officers scrolled through the handset and photographed material visible on the screen. They did not connect the device to a computer, download its data or carry out a forensic extraction.
The court expressly declined to decide whether a more sophisticated forensic examination, including off-site analysis of data, could be considered a non-routine search that requires reasonable suspicion.
That unanswered question is not small stuff. It leaves room for future litigation over what happens when a border inspection moves beyond a quick scroll and into a full digital extraction.
The panel also rejected an argument that the First Amendment creates a separate warrant requirement for phones. It reasoned that such a rule would be both overinclusive and underinclusive, because expressive material may also be carried in notebooks, diaries and films.
Judge Eunice Lee concurred only in the judgment. She agreed that the evidence in this particular case could be admitted without a warrant or probable cause, but disagreed with the majority's broader characterisation of cellphone searches as routine and requiring no individualised suspicion.
Circuit Judge Steven Menashi wrote the majority opinion, joined by District Judge Hector Gonzalez, sitting by designation.
The ruling means that, within the Second Circuit, border agents may manually search a traveller's cellphone at an international port of entry without a warrant, probable cause or reasonable suspicion.
The court did not decide whether more intrusive forensic examinations of phones would require suspicion.
