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Can Border Agents Search Your Phone Without a Warrant?

The requirement to get a warrant may not apply when an American citizen is returning home from abroad and U.S. border officials want to search the contents of that person's phone.

In Riley v. California (2014), the U.S. Supreme Court held that law enforcement officials had violated the Fourth Amendment when they searched an arrestee's cellphone without a warrant. "Modern cell phones are not just another technological convenience," Chief Justice John Roberts wrote for the majority. "With all they contain and all they may reveal, they hold for many Americans 'the privacies of life.' The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought."

The requirement to get a warrant may not apply, however, when an American citizen is returning home from abroad and U.S. border officials want to search the contents of that person's phone—at least according to a decision issued in March by the U.S. Court of Appeals for the 11th Circuit.

Hernando Vergara, a U.S. citizen, was returning home from a cruise to Mexico. Because of a prior criminal conviction, a Customs and Border Protection officer searched his luggage, including the three cellphones that Vergara was carrying. One of those phones contained "a video of two topless female minors."

At that point, the Department of Homeland Security stepped in. Vergara's phones were taken away to a government facility, where they were subjected to a warrantless forensic search, a process that typically involves retrieving deleted files and other inspections of the phone's digital records. The agents discovered child pornography on the phones.

Vergara and his lawyers argue that this evidence is inadmissible because the government never obtained a search warrant. They draw in significant part on the privacy protections for cellphone users that the Court recognized in Riley.

But a divided panel of the 11th Circuit took a different view. "Border searches never require a warrant or probable cause," declared the majority opinion of Judge William H. Pryor.

Writing in dissent, Judge Jill Pryor (no relation to William) stressed "the significant privacy interests that individuals hold in the contents of their cell phones." In her view, "the privacy interests implicated in forensic searches are even greater than those involved in the manual searches at issue in Riley"; if it were up to her, such an inspection would require "a warrant supported by probable cause."

For now, her colleague's position prevails, but we have not heard the last of the debate. This case or one very much like it is probably headed for the Supreme Court.

Photo Credit: Loren Elliott/Reuters/Newscom

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  • Scarecrow Repair & Chippering||

    Some framers were just statists at heart who could see no wrong with a big centra; government. Others thought they were doing the right thing and tried to put in some checks and balances. And others, of course, didn't trust government as far as it could be thrown, but they lost, the Articles of Confederation lost, and here we are.

    I fault the naive framers for several mistakes:

    They had too little provision for states to override the federals. There should have been some explicit provision that, say, 25% of the states could pass resolutions nullifying some federal law.

    There is no provision for ordinary people to nullify federal law. People ought to be able to bring suit charging laws with being defective for inconsistency, vagueness, lack of clarity, etc; but not for Constitutionality. All such trials should be judged only by juries of randomly selected voters, with no appeal, because if ordinary people can't understand a law, then it has no business being a law.

    The language is not direct or simple enough; it provides too much scope for sea lawyers to quibble. The first half of the Second amendment is an excellent example. The Fourth is too; it is really a right to privacy and to be left alone without government snoops, and should be stated as such. The commerce clause, the Necessary and Proper clause, those are examples too.

  • Qsl||

    I had much of a similar idea- create a third house of congress populated by citizens selected randomly from each state (say three for each). While they couldn't introduce legislation directly, they could debate, ask for clarification (to become a part of the bill), ask for amendments to any other piece of legislation, and would be the final authority of any bills in conference. Only a 2/3 majority from both houses could override them. I'd also want all bills to be read aloud c-span style before a vote so constituents could contact their representatives prior.

    While deferring to the Massie interview, it appears much of the ill in Washington is structural and simply voting the right people in isn't a sufficient safeguard. Legislation should be vetted prior to be unleashed onto the nation, leaving the courts to muddle through the intent after the damage has been done.

  • perlchpr||

    I'd also want all bills to be read aloud c-span style before a vote so constituents could contact their representatives prior.

    And any bill for which a quorum was not present the entire time has to be read over again.

    Well, that should put a kink in the next Obamacare sized bill that comes down the pipe.

  • Scarecrow Repair & Chippering||

    My answer to that was that (a) any legislator could introduce a bill at any time. A bill would become law if, after 30 days of review, a majority of other legislators had signed up as approving it. Any changes to the bill would restart the 30 day clock. If there are multiple chambers, each chamber has to have its own majority approval.

    Parties could still intervene by telling members to not approve a bill or not introduce a bill, but the only enforcement would be up to the party, not in the Constitution.

    Once a bill had become law, it would automatically create a repeal petition. If at any time, a majority of legislators in any chamber signed up for repeal, the law is gone until re-introduced and re-approved.

    Every district election would send the three top vote getters to Congress, where they would proxy the number of votes they received; majorities are by proxied votes, not legislators.

    Every voter could check a box to be a volunteer. Each district would elect one random volunteer to a separate chamber who would proxy the number of volunteers.

  • Fist of Etiquette||

    We always find the most sympathetic of test case subjects.

  • Bubba Jones||

    That was my first reaction. Why die on this hill?

    But actually we should turn it around. If cops are too lazy to get a warrant for the "easy" cases, then WTF?

  • DiegoF||

    "We"? Don't they kind of...find themselves? The sorts of people who catch cases that set precedents for criminal law like this are going to tend to skew in the rather unsavory direction.

  • Adam330||

    If they had found nothing, he wouldn't have standing to challenge the search in the first place. These cases are by definition brought by people accused of crimes.

  • Rossami||

    What Adam said. You will never find a sympathetic test case for this kind of situation.

  • Bubba Jones||

    My initial reaction was that they certainly had probable cause for the forensic search at the border.

    My conclusion, however, is that they certainly had enough evidence (prior convictions, border crossing, topless photos of underage girls) to get a warrant. Therefore it should have been straightforward to get a warrant. In which case we should require it.

  • Cathy L||

    What was the probable cause? Is any previous criminal conviction sufficient to be searched at any time outside the border?

  • Scarecrow Repair & Chippering||

    That's the point. They don't need probable cause.

  • BrianB||

    Although, what if you happen to have photos or video of underage people that were taken at a legitimate family nudist resort? Simple nudity does not equal child pornography or probable cause of such.

  • Longtobefree||

    Yeah, right.
    Pictures do not even have be of nude children to get defined as child pornography.
    The simple fact is the guy is guilty of felony stupidity. If you are going to leave the USA, and plan on returning, get a prepaid phone and set up all new accounts and throw the phone away before returning. Do not use any cloud back process or system (third party, no warrant). If you have innocuous photos (say those without people in them), you could download them to a flash drive and carry that in your luggage.
    At the very least, ship the pone home, do not carry it.

  • Rossami||

    A prior conviction is not probable cause. Neither does a mere border crossing constitute probable cause. The only thing that might count were topless photos and whether they count depends on what you consider "the search".

    I believe that "the search" occurred when the CPB officer searched the luggage. The historical justifications for searching luggage at borders (stowaways, assessment of import duties, etc. do not justify searching of electronic content. In this scenario, the CPB officer had no probable cause to search the files on the phone and most of the current border searches are unconstitutional.

    The alternate theory of the case is that the CPB officer is, despite all evidence, somehow not a proxy for the police, is allowed to look through your files anyway, and is allowed to report whatever he/she finds to the police the same as if you'd left your files unattended in the bus station. In that theory, "the search" did not occur until DHS Only in this theory of the case did DHS have probable cause. And, yes, it is inexcusable that DHS didn't take the trivial effort to get a warrant.

    The 11th Circuit's decision, however, that the CPB and all subsequent investigators can look at anything and everything anywhere near a border and completely untethered from any legitimate border control purpose is a complete abrogation of the rights that the Constitution is supposed to protect.

  • chemjeff radical individualist||

    Gee what a shocker. When you turn the border into a police state, the border becomes a rights-free zone.

    Perhaps one of our closed-border enthusiasts around here can suggest a way that they think they can have a "secure border" while also respecting the rights of citizens especially as they travel.

  • Arch Stanton||

    Don't be a naive cuck. People could hide illegals in their cell phones. You just want MS26 to get through and they're twice as bad as MS13. What if there is sharia on the phone. Did you think of that?

  • Inigo Montoya||

    "What if there is sharia on the phone?"

    Good point! I had sharia on my cell phone at one point, saved to my music:

    "Sharia he don't like it / Rock the casbah! Rock the casbah!"

    I deleted the song because I wanted to avoid a Clash with border agents!

  • Colossal Douchebag||

    When this gets to SC, ICE is going to get bitch-slapped.

  • Longtobefree||

    Maybe.

  • ThanksForTheFish||

    It's nice that you're still optimistic.

  • Longtobefree||

    So set me straight here; what if the 'topless' photos had been of males, or children identifying as male. Any difference?
    What if the photos had been in the possession of a person identifying as, or being, female? Any difference?
    If there is a difference, justify it without gender discrimination.

    As much as I hate new federal regulations, perhaps our congresscritters should specify that electronic devices always require a warrant, and cannot be held longer than 24 hours pending a warrant. The devices aren't going to run away or dissolve or anything, so no reason not to get a warrant. And if the devices are not returned immediately (say 1 or 2 hours?) then a warrant application MUST be filed and ruled on. Too many refused warrants and the guy gets demoted back to the field.

  • Juice||

    As much as I hate new federal regulations, perhaps our congresscritters should specify that electronic devices always require a warrant, and cannot be held longer than 24 hours pending a warrant.

    I'm all for regulation of law enforcement.

  • Stilgar||

    And let us not forget that the "border" is in fact up to 100 miles from a 'national' border. So yeah, you can have a warrantless phone search going through an interior check point too. Have a nice day!

  • Ron||

    and don't forget water ways that can be used as a port of entry which with the 100 mile rule applies to everyone in the Sacramento region in the literal heart of California 100's of miles from any U.S. border. its bad law but my opinion on that falls to deaf politicians ears

  • crufus||

    Since shorelines are national boarders, then people in most large cities in the US would be subject to warrantless searches of their cell phones or anything else in their possession. And by extension, their homes.

  • Uncle Jay||

    Warrant?
    We don't need no fucking warrant.
    We carry badges and guns!

  • Reverend Draco||

    Two options:

    1. Show me the warrant.
    2. Have a nice MediFlight!

    The 4th contains neither caveat nor exception.
    Nor do I.

  • Mark22||

    This isn't exactly news. Nor should it be surprising that people who cross borders have their personal possessions searched without a warrant... that's what customs agents do. One might argue that this shouldn't include digital searches, but that would seem to be a special case.

  • Ride 'Em||

    ^^^This. If they have the right to search your luggage, it would appear to me they have the right to search your phone.

  • ||

    Any intrusive search of a US citizen without probable cause should be a concern to us all. Even at the border. Sadly, that requires we defend the rights of what appears to be a scumbag.
    The more we require the Constitution to constrain our government the better off we are.

  • mysmartstuffs||

    Can Border Agents Search Your Phone Without a Warrant? No, border agents must obtain a warrant before conducting electronic searches and warrantless electronic searches that are conducted by border agents must be illegal

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