Last Friday, the Second Circuit reversed three carefully thought out district court cases and ruled that a federal agent at Kennedy Airport can pick up your phone and read everything on it for no reason at all. The agent needs no warrant, no probable cause, no reasonable suspicion, no hunch.
The two-judge decision is United States v. Alisigwe, No. 24-960 with a concurrence by Judge Eunice C. Lee, which is better than the main opinion. We look forward to seeing it get reversed.
What the border agents did
The traveler in the case was pretty suspicious, but Judge Steven J. Menashi, joined by Judge Hector Gonzalez of the Eastern District of New York, sitting by designation, reached to say it didn’t matter–the agents could have scrolled through his phone anyway.
The defendant, Chinwendu Alisigwe was a lawful permanent resident who had, apparently, opened thirty-six bank accounts using fraudulent passports and licenses and moved millions of dollars through them. In 2019 and again two years later Homeland Security Investigations and Customs and Border Protection pulled Alisigwe into secondary inspection at JFK and told him to unlock his phone. An officer scrolled through the photo gallery and the messages. The agent photographed the screen using his own phone. The district court held that the searches required reasonable suspicion, found that the agents had reaonable suspicion, and denied suppression of the screenshots. The Second Circuit affirmed that decision–but Judge Menashi went way further, holding that reasonable suspicion was never necessary in the first place: a cellphone is property, he reasoned, and property searches at the border are routine, and routine searches require no showing at all.
The suitcase problem
The decision equates a phone, which is something you carry, to a suitcase, which is also something you carry. So a phone is the legal equivalent of a suitcase. The court used this facile equation to apply fifty years of precedent permitting border agents to open a bag, photocopy a notebook, and disassemble a gas tank without a warrant or a reason.
But twelve years ago, the Supreme Court in Riley v. California, 573 U.S. 373 (2014) made quite clear that a cell phone is nothing like a suitcase; it’s more like a home. Police in Riley searched an arrestee’s phone without a warrant, relying on the old rule that officers may search a person they arrest. A unanimous Supreme Court, in an opinion by Chief Justice Roberts, held that phones are different and that the government generally needs a warrant to search them. When the government argued that searching a phone is like searching a wallet, the Court answered that the comparison is “like saying a ride on horseback is materially indistinguishable from a flight to the moon.” The horse is the Chief Justice’s, not mine.
The Second Circuit answers that Riley involved a search incident to arrest and therefore does not govern at the border. True. But the method Riley applies is relevant to every exception to the warrant requirement: identify the purpose of the exception, then ask whether a phone search advances that purpose. The panel skips the analysis and announces the conclusion: “Alisigwe’s argument for a warrant requirement would require us to conclude that scrolling through a cellphone is a more invasive search than reaching into and around a person’s genitals.”
Actually, it kind of is: as Chief Justice Roberts wrote “a cell phone search would typically expose to the government far more than the most exhaustive search of a house,” and he borrowed Judge Learned Hand’s line that searching a man’s pockets is a wholly different thing from “ransacking his house for everything which may incriminate him.” Reading a phone is more like downloading a person’s brain than emptying their pockets. A body search is a cruel humiliation and a violation of bodily integrity but it most cases the issue is degradation, not privacy. The panel’s comparison fails because the question is how much of a person’s life a border agent gets to look without even having to a reason to look. The Alisigwe holding is by definition unreasonable and at odds with the plain language of the Fourth Amendment that maintains that searches have to be reasonable.
The comparison also udermines the panel’s legal analysis. In the Second Circuit, a strip search at the border requires reasonable suspicion, and so does a body cavity search. The Ninth Circuit has demanded a stronger showing before officers may search inside the body, and the Supreme Court has never decided addressed either search requires.
Contraband, instrumentalities, and mere evidence
Fourth Amendment law long sorted seizable property into three categories: contraband, meaning property that is illegal to possess or to import; fruits of the crime; and instrumentalities, meaning tools used to commit a crime. Everything else counted as mere evidence, and under Gouled v. United States (1921) the government could not seize it at all. The Supreme Court abandoned that limit in Warden v. Hayden (1967), but the categories still describe what a border officer should be looking for.
The stolen names, birthdates, and Social Security numbers on Alisigwe’s phone are instrumentalities. The traveler used those lists to manufacture identities and open accounts, as he did with the counterfeit passports. A list like that amounts to burglar’s tools in digital form, and treating it as contraband that customs may intercept is fair enough. The Eleventh Circuit said as much about a paper notebook of names, birthdates, and Social Security numbers, which the panel cites case for the point.
But the pane went too far by blessing as lawful a border search that could be entirely pretextual, may run at another agency’s request, and can target crimes having nothing to do with the border. That holding sweeps in mere evidence and non-evidence: the WhatsApp message asking a co-conspirator whether he had received “anything for” a stolen identity, the photograph that contradicts an alibi, the receipt that places a an airline passenger somewhere he denied being. An exception justified by the sovereign’s power to control what physically enters the country now underwrites a search for proof of any crime at all. An officer needs no contraband and no instrumentality to open the phone.
What remains is a general warrant , the king’s open-ended search authority the colonists despised, a paper that let an officer search anybody, anywhere, for anything, without naming a person or an item. The Fourth Amendment’s particularity requirement was written to abolish general warrants. Alisigwe would bring them back.
Even the panel concedes the deeper problem, quoting Stanford Law Prof. Orin Kerr: anyone determined to move digital contraband can email it and skip the airport. Searches like these target bad actors rather than intercept goods, which is ordinary, if targeted, law enforcement and not legitimate border enforcement.
Judge Nina R. Morrison had it right
Much better analysis came out of the Eastern District of New York two years ago. Judge Nina R. Morrison decided United States v. Sultanov, 742 F. Supp. 3d 258 (E.D.N.Y. 2024), and hers is the most careful treatment a federal judge has given the question. The traveler there was a naturalized United States citizen returning from a family visit to Uzbekistan, which is worth remembering whenever someone describes device searches as an immigration tool. In Alisigwe, Judge Menashi disposes of Sultanov, along with Judge Jed S. Rakoff’s opinion in Smith and two other district court decisions, in four words: “Those decisions are wrong.”
In Sultanov, Judge Morrison asked what the border search exception is for and whether searching a phone advances that purpose. She held that a cellphone search is nonroutine whether the agent scrolls or does a forensic extraction, and that the Fourth Amendment requires probable cause and a warrant to go into someone’s phone, just like in Riley. The panel did not engage with a word of Judge Morrison’s eminently quotable reasoning: “A person’s search history can reveal the questions that keep him up at night, including questions he might be too ashamed to ask his spouse or doctor. …. [R]eviewing the information in a person’s cell phone is the best approximation government officials have for mindreading….It is that the details, taken together, can provide a kaleidoscopic view of the user’s whole life.”
In Sultanov, a CBP officer testified that he could open anything stored on the phone, including banking applications and private messages, that travel to Europe or a long absence from the country could justify a search, and that in more than a thousand secondary inspections no traveler had ever refused. Judge Morrison’s summary: “The only practical limitation on a manual search is a CBP officer’s interest and zeal, and its potential scope is, in a word, breathtaking.”
On the standard itself, she drew the line the Second Circuit couldn’t see last week. Giving border officials authority to detain travelers briefly and search their physical belongings is one thing, she wrote, but it is “an entirely different matter for courts to exempt those agents from the Fourth Amendment’s probable cause and warrant requirements in the vastly more intrusive context of a cell phone search.” She then gave the government its win on good faith and admitted the evidence anyway. The Circuit’s four words are not a response to an opinion like hers.
The concurrence seems to dissent
In concurrence, Judge Lee agrees that no warrant was required, and she agrees only because Alisigwe never challenged the district court’s finding of reasonable suspicion. He argued for probable cause or nothing. The rest of her opinion reads as a dissent.
Her main target is United States v. Irving, 452 F.3d 110 (2d Cir. 2006), the decision the panel leans on. Stefan Irving was a former school district pediatrician with a prior sex offense who flew home from Mexico into Dallas–Fort Worth in 1998. Customs officers opened his luggage, found children’s books and drawings, searched again, and came away with a disposable camera and two 3.5-inch computer diskettes that agents later developed and analyzed. The Second Circuit held that the luggage search was routine. When the court reached the film and the diskettes, it paused, found reasonable suspicion, and declined to decide whether examining stored data was routine at all. Judge Lee makes the obvious point: the court hesitated over two floppy disks in 2006, when the iPhone did not exist and roughly four percent of American adults owned a smartphone.
She adds that the phone Riley called capacious held sixteen gigabytes, while today’s typical storage is 256 gigabytes and can go up to two terabytes. She concludes that a phone search is closer to a strip search than to a luggage search.
But Judge Lee’s sharpest point concerns the First Amendment. Alisigwe never raised a First Amendment claim, and the district court never decided one. The theory reached the court of appeals through amici, the Knight First Amendment Institute at Columbia University and the Reporters Committee for Freedom of the Press. The majority rejected the amici’s theory anyway, in an appeal the panel could have resolved on Fourth Amendment grounds alone. Judge Lee cites United States v. Sineneng-Smith and the principle of party presentation–a polite way of saying that courts decide cases rather than issue advisory opinions against arguments by non-parties they find don’t like.
What survives
Pulling back from the precipice, Judge Menashi’s footnote 9 reserves on the question of whether a forensic extraction, meaning plugging a device into a computer and pulling off everything including deleted files, is a nonroutine search requiring reasonable suspicion. The panel held only that scrolling is routine. In the Ninth Circuit, Cano still limits warrantless forensic border searches to digital contraband. Judge Lee’s opinion preserves the reasonable suspicion question for the next defendant who raises it in the district court and on appeal.
The panel may not get the last word. Alisigwe is represented by Colleen Cassidy of the Federal Defenders of New York, the Knight Institute and the Reporters Committee are already in the case, and the ordinary avenues for further review–panel rehearing and en banc review in the Second Circuit and then certiorari in the Supreme Court–remain open.
Getting the Supreme Court to take up the question may be difficult. Footnote 8 of the opinion collects every circuit to reach it, and all of them come out the same way, which leaves no split to resolve. But the Supreme Court has never decided whether agents may search a phone at the border. Four district judges in the Second Circuit have now said that the courts of appeals have the question wrong. And this year’s decision in Chatrie v. United States, the geofence warrant case holding that cellphone users have a reasonable expectation of privacy in their location data, shows a Court still thinking about digital privacy. The panel and Judge Lee read Chatrie very differently.
What to do before your next flight to maintain privacy
None of the following is legal advice; the right approach depends on who you are and what you are carrying.
- Power your devices all the way down before you land. A phone that has been powered off and never unlocked keeps its encryption keys out of memory. A phone that has been unlocked since booting does not.
- Use a long alphanumeric passcode, turn off Face ID, and disable fingerprint unlock before you fly. Under the Fifth Amendment, police generally cannot compel you to reveal your password. But they can force you to use FaceID or a fingerprint to und=lock your phone.
- Carry as little as you can. A clean travel phone and a stripped laptop cost less than litigating a federal case. CBP Directive 3340-049B, effective January 1, 2026, tells officers to search what is resident on the device and to disable network connectivity rather than reach into the cloud. Leave your files in the cloud and sign out of the apps you don’t need.
- Know which rules govern you. A citizen cannot be denied entry for refusing to give up a passcode, though agents can seize the phone and keep it for weeks. A lawful permanent resident in theory cannot be summarily excluded, though Alisigwe’s case shows what can follow from a search. A visa holder or a visitor can be put on the next flight out of the United States.
- Assert privilege out loud if you can. Lawyers, journalists, physicians, therapists, and clergy should say so before anything is opened. The directive contains a procedure for privileged material but it only applies when the traveler invokes it.
- Decline consent without obstructing. Never lie to a federal agent, do not delete anything, and don’t reach for the device once an agent has it. Lying is a separate federal crime. Alisigwe picked up two extra offense levels at sentencing for a story he told under oath, so the phone searches were only part of his problem.
- Write down what happened the same night. Record the times, the officers’ names and badge numbers, the length of the stop, and whether anyone connected equipment to your device. Whether an agent scrolled or extracted is still a live legal question, and you may not recall details eight months later.
Until a larger court fixes the rule, the rule at Kennedy is the one the panel wrote. Your phone is luggage. Pack accordingly.
Searched at the border? Contact ZMO Law PLLC
ZMO Law PLLC defends people facing federal charges in New York, including cases built on evidence taken from phones and laptops at airports and land crossings. The timing of a search, the method the agents used, and whether they connected to the device can decide whether the evidence comes in. Call us at (212) 685-0999 before you power down your phone.