What started as a "narrow constitutional exception" now "threatens to swallow the protection it was meant only to qualify," according to an amicus brief filed last week by the Cato Institute asking the Supreme Court to reconsider a petition about warrantless searches of Americans at the border.
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it → start → border
The petitioner is George Anibowei, a Texas-based immigration attorney who has, on five separate occasions when traveling internationally, been stopped and had his phone searched at the border by federal agents.
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phone → base → agents
The law gives agents the authority to seize and search property—including cellphones and other electronic devices—without a warrant and without suspicion when crossing a border.
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law → give → border
Federal courts have upheld this policy under the border search exception—which defers to the sovereign's right to protect itself and requires no warrant, probable cause, or suspicion for a search—and have extended the exception to include the contents of a person's cellphone.
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which → uphold → cellphone
In Riley v. California (2014), the Court rejected the government's argument that "a search of all data stored on a cellphone is 'materially indistinguishable'" from searches of physical items, comparing it to "saying a ride on horseback is materially indistinguishable from a flight to the moon."
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ride → reject → moon
In another new amicus brief, the Constitutional Accountability Center argues that the border search exception runs counter to the Court's ruling in Riley, allowing federal agents to "rummage at will through the records stored on those devices," effectively giving the federal government the power to "indiscriminately search and seize the 'papers' of the people."
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agents → argue → people
It's a sentiment backed by the brief filed by The Rutherford Institute, which states that instead of being used to advance the sovereign interest of border security, the government has "repeatedly used the exception as a tool to violate Americans' civil liberties by capitalizing on international travel as a convenient opportunity to avoid the Fourth Amendment's warrant requirement."
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government → back → requirement
Amy Peikoff, an attorney with the Pacific Legal Foundation (PLF), who represents Anibowei, says it's a "trespass on your papers when the government searches the contents of your cellphone without a warrant, and it really shouldn't be allowed under the Fourth Amendment at all."
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it → represent → Amendment
She tells Reason that the "contents of your cellphone are very different from anything else to which the traditional border search exception applied."
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exception → tell → which
Stanford law professor Orin Kerr writes at The Volokh Conspiracy that expanding the border search exception effectively allows the government to "look through everyone's phone for evidence of crime without any cause because the government has an interest in solving crime that the border doctrine allows it to pursue."
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it → write → that
It's hard to imagine a cellphone search conducted in a nonintrusive manner.
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It → imagine → manner
When federal agents search a phone, they can look through photos, documents, apps, notes, and other digital files.
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they → search → photos
Peikoff points out that most people keep just as much information on their cellphones as they do in their homes.
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they → point → homes
"Houses, papers, and effects have always been treated with particular solicitude under the Fourth Amendment," Peikoff says.
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Peikoff → treat → Amendment
"We are just asking for that same amount of solicitude to be applied in the context of traveling over the border."
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amount → ask → border
She points to Justice Neil Gorsuch's concurring opinion in Chatrie v. United States (2026), which states that "it should hardly come as a surprise that the Fourth Amendment might protect as personal 'effects' electronic diaries of one's travels as it always has more traditional ones.
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it → point → ones
In Anibowei's capacity as an attorney, a warrantless border search of his cellphone presents additional problems.
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search → present → problems
It could, as the American Bar Association claims in its amicus brief, "threaten attorneys' important ethical duty of confidentiality and the attorney-client privilege," exposing "significant amounts of confidential and privileged information to third parties."
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Association → claim → parties
It's unclear if the Court will hear Anibowei's case.
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Court → hear → case
The Court denied his first petition for a writ of certiorari in 2024.
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Court → deny → 2024
Still, Peikoff believes the Court can no longer afford to wait.
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Court → believe → ?
In our digital world, the extent to which the Fourth Amendment protects Americans at the border is a pressing issue.
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Amendment → protect → border
The Aporia
