New York Judge Finds Search of Individual’s Locked Phone at Border Crossing Violates Fourth Amendment Rights
Judge Nina R. Morrison, a federal judge in New York, ruled that US Customs agents are not permitted to force a traveler to unlock their phone in order to search the contents of said device without a warrant. The case that brought the issue to the judge’s attention revolved around Kurbonali Sultanov, a naturalized US citizen from Uzbekistan, who was ordered by Custom and Border Protection (CBP) officers to hand over his phone and unlock it when he attempted to re-enter the United States because his named triggered an alert that he may be a purchaser or in possession of child pornography. After being told he had no choice but to unlock the phone, agents searched his phone and later obtained a warrant for the phone, eventually leading to criminal charges. After he filed a motion to suppress, Judge Morrison ruled in his favor that the first search was unconstitutional, finding that the initial search of the phone violated his Fourth Amendment rights against unreasonable searches and seizures. In her ruling, the judge expressed concern that the current practice could place journalists and others at risk, writing, “the targets of political opposition (or their colleagues, friends, or families) would only need to travel once through an international airport for the government to gain unfettered access to the most ‘intimate window into a person’s life.’” The ruling is setting up a potential split in permissible law enforcement tactics across the country, as a separate Federal Appellate Court ruling in 2021 found the opposite, holding that CBP officers explicitly can search a traveler’s phone and other devices without a warrant or reasonable suspicion. Judge Morrison’s ruling is the type of case that invites further review by higher courts that could ultimately invite the Supreme Court to grant certiorari (accept the case upon petition) and decide if law enforcement can to lawfully access an individual’s highly personalized data contained in their devices under the cover of border security measures without a warrant.
Bipartisan Group of Senators Question Search of Citizens Phone at Border
Earlier this year, senators from both parties on the Senate Homeland Security and Senate Finance Committee asked the Department of Homeland Security, which oversees the CBP and Immigration and Customs Enforcement (ICE) agencies, to brief them concerning the data that is extracted by travelers phones by the agency when conducting border searches of individuals. “We are concerned that the current policies and practices governing the search of electronic devices at the border constitute a departure from the intended scope and application of border search authority” they wrote in a joint letter to the Secretary of Homeland Security. Under a 2018 directive of the CBP, the established guidelines allow officers to conduct a “basic search” of a phone without a warrant and further allows the officer to seize an individual’s personal device and copy its data if they have reasonable suspicion “of activity in violation of the laws” or “a national security concern,” and anyone who refuses to hand over their device with a passcode can have them seized. Between October 2018 and March 2024, the CBP alone conducted over 252,000 of such searches according to the agency, although the agency points out that figure is only a small fraction of the hundreds of millions of individuals who passed through US borders in that time period. Still, both the courts and legislators have shown there are concerns over the amount of power the agency currently wields and over the privacy afforded to individuals by our constitution. Anyone currently facing charges or who believes they are subject to an ongoing investigation stemming from a search or seizure of a cell phone, tablet, computer, or other personal device at the airport or other border crossing, should contact an experienced criminal defense attorney who can protect their privacy interests and effectively represent them. For example, there may be a long-term legal benefit in filing a lawsuit and demanding the return of the devices in a timely manner.
