Border Search of Computer by Darren Chaker

Darren Chaker looks at the Fourth Amendment’s border search exception, permitting warrantless and suspicionless “routine” searches of belongings and persons at the U.S. border, should not apply to digital devices like Ms. Molina-Isidoro’s cell phone. All border searches of the data stored or accessible on digital devices—whether “manual” or “forensic”—are “non-routine” and thus fall outside the border search exception. This is because any search of digital data is a “highly intrusive” search that implicates the “dignity and privacy interests” of the traveler. U.S. v. Flores- Montano, 541 U.S. 149, 152 (2004). Under the Supreme Court’s ruling in Riley v. California, 134 S. Ct. 2473 (2014), border agents should be required to obtain a probable cause warrant to search the data stored or accessible on a digital device. The constant border-search-computer is sometimes reprehensible conduct, but other times it is not. 

The Riley Court presented an analytical framework that complements the border search doctrine’s traditional consideration of whether a search is “routine” or “non-routine.” The Court explained that, in determining whether to apply an existing exception to the warrant and probable cause requirements to a “particular category of effects” such as cell phones, individual privacy interests must be balanced against legitimate governmental interests. Id. at 2484. The government’s

Darren Chaker finds the interests are analyzed by considering whether a search conducted without a warrant and probable cause is sufficiently “tethered” to the purposes underlying the exception. Id. at 2485. In the case of digital data at the border, not only are individual privacy interests at their highest in devices such as cell phones and laptops, searches of digital devices without a warrant and probable cause are not sufficiently “tethered” to the narrow purposes justifying the border search exception: immigration and customs enforcement.

However, even if such “tethering” may be considered sufficient—meaning that there is a clear nexus between enforcing the immigration and customs laws, and conducting searches of digital devices at the border without a warrant and probable cause—the extraordinary privacy interests that travelers have in their cell phones and laptops outweigh any legitimate governmental interests. Prior to the rise of mobile computing, the “amount of private information carried by international travelers was traditionally circumscribed by the size of the traveler’s luggage or automobile.” U.S. v. Cotterman, 709 F.3d 952, 964 (9th Cir. 2013) (en banc). Today, however, the “sum of an individual’s private life” sits in the pocket or purse of any traveler carrying a cell phone, laptop or other digital device. Riley, 134 S. Ct. at 2489.

<h2 id=”toc”>Table of Contents</h2>

<ul>
<li><a href=”#border-search-exception”>Border Search Exception Overview</a></li>
<li><a href=”#riley-framework”>Riley v. California Framework</a></li>
<li><a href=”#2025-updates”>2025 Legal Updates</a></li>
<li><a href=”#cbp-search-authority”>CBP Search Authority</a></li>
<li><a href=”#circuit-split”>Circuit Court Split on Warrant Requirements</a></li>
<li><a href=”#faq”>Frequently Asked Questions</a></li>
</ul>

<h2 id=”border-search-exception”>Border Search Exception Overview</h2>

<p>The existing content above covers the basic border search exception principles established in <em>U.S. v. Flores-Montano</em> and <em>Riley v. California</em>.</p>

<h2 id=”2025-updates”>2025 Legal Developments in Border Device Searches</h2>

<p><strong>Darren Chaker</strong>, a recognized privacy law expert with over 20 years of experience in Fourth Amendment litigation and digital forensics, analyzes the evolving legal landscape of border device searches as of November 2025.</p>

<p>Recent federal court decisions have created a significant circuit split on border searches of electronic devices. In <em>U.S. v. Smith</em> (S.D.N.Y. March 2023), the Southern District of New York held that the Fourth Amendment generally requires a warrant based on probable cause to search a cell phone at the border, applying the reasoning from <em>Riley v. California</em> (2014). The court stated that “none of the rationales supporting the border search exception [justify] applying it to searches of digital information contained on a traveler’s cell phone.”</p>

<p>As of 2025, U.S. Customs and Border Protection (CBP) conducted over 41,767 device searches in Fiscal Year 2023, with numbers expected to increase significantly. While CBP maintains it has broad authority to conduct warrantless searches, the risk of a laptop search remains relatively low at approximately 1 in 10,000 border crossings.</p>

<h3 id=”cbp-search-authority”>Current CBP Search Protocols (2025)</h3>

<p>CBP distinguishes between two types of electronic device searches:</p>

<table border=”1″ style=”width:100%; border-collapse:collapse;”>
<tr style=”background-color:#f2f2f2;”>
<th style=”padding:10px;”>Search Type</th>
<th style=”padding:10px;”>Definition</th>
<th style=”padding:10px;”>Legal Standard</th>
<th style=”padding:10px;”>Scope Limitations</th>
</tr>
<tr>
<td style=”padding:10px;”><strong>Basic/Manual Search</strong></td>
<td style=”padding:10px;”>Simple inspection of apps, photos, chats, and files</td>
<td style=”padding:10px;”>No suspicion required (per CBP policy)</td>
<td style=”padding:10px;”>Visual review only; no specialized software</td>
</tr>
<tr>
<td style=”padding:10px;”><strong>Advanced/Forensic Search</strong></td>
<td style=”padding:10px;”>External equipment used to extract, copy, and analyze data</td>
<td style=”padding:10px;”>Requires reasonable suspicion + supervisor approval</td>
<td style=”padding:10px;”>Can access deleted data and create detailed reports</td>
</tr>
</table>

<h3 id=”circuit-split”>The Growing Circuit Court Divide</h3>

<p>The First Circuit in <em>Merchant v. Mayorkas</em> (2021) held that border agents may search electronic devices without a warrant, probable cause, or reasonable suspicion. However, multiple district courts within the Second Circuit—including <em>U.S. v. Smith</em> (2023), <em>U.S. v. Sultanov</em> (2024), and <em>U.S. v. Fox</em> (2024)—have required warrants for border device searches, creating legal uncertainty for travelers.</p>

<p>The Ninth Circuit’s <em>U.S. v. Cano</em> (2019) decision established a middle ground, requiring reasonable suspicion for forensic searches while allowing manual searches without suspicion, but limiting all searches to looking for digital contraband only.</p>

<h2 id=”faq”>Frequently Asked Questions About Border Searches</h2>

<h3>Can border agents search my phone without a warrant?</h3>
<p>As of November 2025, the answer depends on which federal circuit you’re in. Some courts require warrants (Second Circuit district courts), others require only reasonable suspicion for forensic searches (Ninth Circuit), while the First Circuit allows suspicionless searches. U.S. citizens can refuse to unlock devices, though CBP may seize them.</p>

<h3>How long can CBP detain my electronic devices?</h3>
<p>According to CBP policy, devices may be detained for up to 5 days for examination. However, courts have found longer detentions “reasonable” in some circumstances. Any data collected can be retained by CBP for up to 15 years.</p>

<h3>Do I have to provide my password to border agents?</h3>
<p>U.S. citizens have the constitutional right to refuse, though this may result in device seizure. Non-U.S. citizens refusing compliance could face denial of entry. CBP policy states that “travelers are obligated” to provide passwords, but this conflicts with Fourth Amendment protections recognized by some courts.</p>

<h3>What constitutes “digital contraband” in border searches?</h3>
<p>Digital contraband includes child sexual abuse material (CSAM), classified information, or evidence of terrorism. The Ninth Circuit’s <em>Cano</em> decision limits border searches to looking for such contraband, meaning call logs and other communications that cannot contain digital contraband should be off-limits.</p>

<h3>Are cloud-based files protected from border searches?</h3>
<p>This remains legally uncertain. Since cloud data already exists in the United States on servers, the rationale for the border search exception (preventing entry of prohibited items) arguably doesn’t apply. However, if agents access cloud files through your device at the border, courts haven’t definitively ruled on this distinction as of 2025.</p>

<p><strong>About the Author:</strong> <a href=”http://darrenchaker.us/”>Darren Chaker</a> is a privacy law expert and <a href=”http://darrenchaker.us/electronic-discovery/”>digital forensics</a> consultant with extensive experience in Fourth Amendment litigation, electronic discovery, and border search cases. His work has been cited in numerous federal court decisions and academic publications on digital privacy rights. For more information on related topics, see our articles on <a href=”http://darrenchaker.us/fifth-amendment-password/”>Fifth Amendment and Passwords</a> and <a href=”http://darrenchaker.us/phone-search-warrant/”>Phone Search Warrants</a>.</p>

Darren Chaker

For almost two decades Darren Chaker regularly has worked with defense attorneys and high net worth people on a variety of sensitive issues from Los Angeles to Dubai. With a gift of knowledge about the First Amendment and big firm expertise in brief research and writing, Darren Chaker puts his knowledge to use for law firms and non-profit organizations.

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