In 2014, the Supreme Court made it clear: phone searches require warrants. While it did note the case involved a search “incident to an arrest,” the precedent was undeniable. If a phone search attached to an arrest requires a warrant, it would logically follow that any phone search by law enforcement — even those not subsequent to an arrest — requires a warrant.
Since then, multiple federal courts have come to the opposite conclusion in cases involving searches of phones at borders or international airports. According to these judges, the Rileydecision simply doesn’t apply when border security is in play. And it doesn’t matter whether the searched device belongs to an American citizen or a resident of a foreign country.
The law shouldn’t be unsettled, but it is. There’s no consensus at the appellate level. Nor is there one at the lower levels. All we have is a lack of clarity to work with. One federal judge (Jed Rakoff) said warrants are needed for “some” border phone searches — specifically “forensic” searches in which the government makes itself a copy of all data on a person’s phone.
The Fourth Circuit Appeals Court also made a limited finding in favor of Riley’s warrant requirement, stating that border law enforcement officers must have at least articulable suspicion to engage in forensic searches. That’s still a long way from probable cause, but it’s more than the “nothing at all” standard CBP and Border Patrol officers have been held to.