Border agents can probably seize your phone and conduct a routine, “manual search” without a warrant – in many cases, border searches do not violate the Fourth Amendment at all because they fall under the “border search exception” to the warrant requirement.

In US v. Kolsuz, the Fourth Circuit Court of Appeals upheld a border search of a man’s cell phone that included a “manual search,” looking at his contacts, calls, and messages, and a second “forensic search,” which included downloading all information from his phone for use against him in court.

When can border agents seize your cell phone and search it?

What is the Border Search Exception?

Although the Fourth Amendment requires a warrant based on probable cause before the government can seize or search our property, “the exceptions have swallowed the rule,” and those exceptions include the “border exception.”

There are two sets of rules for border searches, one for “routine” searches, and the other for “non-routine” searches.

Routine Border Searches

At the US border, or the “functional equivalent” of the border like airports, the government does not need a warrant or even “individualized suspicion” for “routine” searches and seizures. It doesn’t matter if you are coming or going – the same border exception will apply.

In most cases, search and seizure of a cellphone or other electronic devices fall under the category of “routine” searches.

For attorneys, or anyone who has sensitive or privileged information on their electronic devices, this means do not bring your cell phone, laptop, or tablets with you when you travel – buy a “burner” phone, and, if you bring a laptop, bring a “backup” laptop that does not have your client’s information or other confidential material on it.

Non-Routine Border Searches

Kolsuz’s phone was subjected to two searches – a “routine,” manual search of his phone and a later, forensic search of his phone that produced evidence used against him at his trial.

Non-routine border searches, according to the US Supreme Court, “include ‘highly intrusive searches’ that implicate especially significant ‘dignity and privacy interests,’ as well as destructive searches of property and searches carried out in ‘particularly offensive’ manners.”

This would include seizure of a cell phone followed by a forensic examination to produce evidence for use in court.

Even in a non-routine search, border agents do not have to get a search warrant or even articulate probable cause – they must have a “particularized suspicion,” however, equivalent to the “reasonable, articulable suspicion” that is required before an officer can do a pat-down or search of a vehicle.

Because Kolsuz was arrested at the border, with hundreds of firearm parts that he was illegally smuggling, the Court found that there was no question that the border agents met the “reasonable suspicion” requirement for the forensic search of his phone.

Can Police Search My Cell Phone Incident to Arrest?

The rules above apply at airports or border crossings. In an ordinary arrest, not at the border, the US Supreme Court has held, in Riley v. California, that the police cannot seize your cell phone and search it “incident to arrest” without first getting a search warrant.

Charleston, SC Criminal Defense Lawyer

Attorney Grant B. Smaldone’s law practice is focused on criminal defense in Charleston, Georgetown, Myrtle Beach, and Eastern SC. There may be Fourth Amendment search and seizure issues in any case that could allow key evidence to be suppressed, including border searches, drug trafficking, traffic stops, and searches of person’s homes.

If you have been arrested in the Charleston, SC area, call now at (843) 808-2100 or contact us online for a free consultation to find out how we can help.