Warrantless “Border Searches” of Cellphones: A Decision on Deck with the Second Circuit
A constitutionality of a “border search” of an iPhone is at the center of a major case scheduled for oral argument before the U.S. Court of Appeals for the Second Circuit on June 24, 2025. The case is United States v. Smith, No. 24-1680 (2d Cir.). 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.
Broader Implications for International Travelers
The decision in Smith could have profound implications beyond Smith’s individual case. Requiring a warrant before conducting a “border search” would align the search of an iPhone with the due process normally required for such an invasive search.
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.
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.
