Another EDNY decision striking down a warrantless border search of an iPhone

Judge Nina Morrison in EDNY recently published another decision striking down federal agents’ authority to conduct a warrantless “border search” of an iPhone. She held that “the government must have a warrant and probable cause to search a cell phone at the border.”

This decision underscores the importance of the upcoming Second Circuit decision in Smith, which addresses the same issue.

Judge Morrison’s second decision invalidating a “border search”

On May 9, 2025, Judge Morrison ruled that federal agents need a warrant before conducting a border search. That decision is United States v. Robinson, 23-CR-192 (NRM), 2025 WL 1359352, 2025 U.S. Dist. LEXIS 89035 (E.D.N.Y. May 9, 2025).

Judge Morrison is a repeat player in striking down agents’ use of so-called “border searches” to search a traveler’s iPhone without a warrant. Her holding in Robinson echoes her earlier holding in United States v. Sultanov, 742 F. Supp. 3d 258 (E.D.N.Y 2024).

Both decisions relied heavily on the Supreme Court’s decision in Riley v. California, 573 U.S. 373 (2014). In Riley, the Court held that agents cannot invoke the “search incident to arrest” doctrine to search a cellphone without a warrant.

Up Next: The Second Circuit weighs in

As noted above, the Second Circuit is set to weigh in on the issue in United States v. Smith, No. 24-1680 (2d Cir.). The Smith case is set for oral argument on June 24, 2025. If the Second Circuit follows the decisions of Robinson, Sultanov, and other district court decisions around the country in requiring a warrant to search an iPhone at the border, it will set up an extreme circuit split around the country (especially with the Eleventh Circuit). Given the Riley decision, expect the Supreme Court to take up the issue.

Practice Pointer

The Robinson decision has helpful language as well to attack a warrantless border search in other jurisdictions where only reasonable suspicion is required for conducting a “border search,” such as in the Fourth Circuit.

In the alternative, Judge Robinson found that agents did not have “reasonable suspicion” to conduct an iPhone search based on a three-year-old, law-enforcement alert that flagged the defendant for criminal involvement. Judge Robinson found that this alert was too stale to justify a warrantless search three years later.

Warrantless “Border Searches” of Cellphones: A Decision on Deck with the Second Circuit

On June 24, 2025, the Second Circuit in United States v. Smith, No. 24-1680 (2d Cir.) will take up the Constitutionality of a “border search” of an iPhone. The Second Circuit will decide whether federal agents can search a mobile device at the border without obtaining a warrant. And if agents conduct such a search without a warrant, whether evidence from such a search should be suppressed. There is currently a “circuit split” about level of due process that must be provided before agents can search a cellphone at the border.

By way of background, on March 2, 2021, Jatiek Smith attempted to travel from Newark to Jamaica but was denied entry upon arrival and sent back to the United States. Upon his return to Newark International Airport, federal agents—including Customs and Border Protection (CBP) officers and agents from the FBI and Homeland Security Investigations (HSI)—seized Smith’s cellphone without a warrant. After demanding his passcode under the threat of detention, agents accessed Smith’s phone and made a forensic copy of its contents. Agents then sought a warrant to search and seize the same iPhone.

Smith moved to suppress the iPhone evidence and argued that agents violated his Fourth Amendment rights by reviewing the contents of his iPhone without a warrant. The District Court agreed and found that a Fourth Amendment violation had occurred. In other words, the District Court found that the agents needed a warrant before reviewing the contents of Smith’s iPhone. Nonetheless, the District Court ultimately declined to suppress the evidence because of the “good faith” exception to the exclusionary rule. Both of these issues are now teed up for the Second Circuit.

Constitutional Implications as to Warrantless Cellphone Border Searches

The case presents significant Constitutional questions about the intersection of “border search” authority and modern digital privacy. Historically, the “border search exception” allowed government agents to conduct warrantless searches at the border or its functional equivalents, such as international airports. Courts justified this exception based on the United States’ interest in protecting national security and regulating the import and export of goods.

However, as the Supreme Court recognized in Riley v. California, modern smartphones are materially different from traditional physical containers, like luggage. A smartphone can store vast quantities of sensitive personal information, including medical records, financial data, private communications, and photographs. Searching a cellphone is far more intrusive than searching a suitcase. It therefore raises substantial privacy concerns that were previously inapplicable to border searches.

The decision in Smith could have profound implications beyond Smith’s individual case. Requiring a warrant for a “border search” would essentially gut the “border search” exception and tee in a sharp circuit split, especially between the Second and 11th Circuit. The issue would then be ripe for Supreme Court review.

Broader Implications for International Travelers

Travelers crossing international borders often carry their entire personal and professional lives in their pockets. At a time when courts and policymakers are grappling with the balance between security interests and digital privacy, Smith presents an important opportunity for the Second Circuit to reinforce Constitutional principles in the face of technological change.

The Second Circuit’s decision in United States v. Smith will be closely watched by privacy advocates, legal practitioners, and government agencies. Updates will be provided following the June 24 oral argument.

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If you have had your electronic devices searched and seized at the border or international airport, you may be a target of a criminal investigation and should consult with a federal defense attorney as soon as possible.