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.