Border Agents Need Good Reason to Search Your Phone, Court Rules

By Molly Zilli, Esq. on May 14, 2018 | Last updated on March 21, 2019

We're all used to taking off our shoes, belts, jackets, and watches when we go through an airport. And we expect random car searches at the border. But what about your electronic devices? Do you have to hand your phone over to TSA agents and let them do any type of search they want? One federal appeals court says no, border agents need a good reason to conduct certain types of searches your phone.

Weapons and Phones

Turkish national, Hamza Kolsuz, was entering the country through Dulles International Airport when he was stopped and firearm parts were found in his luggage. Authorities eventually conducted an extensive search of his phone for additional evidence. His lawyer tried to have the cell phone evidence suppressed, arguing it was an unlawful, warrantless search. The lower court denied the request and allowed the evidence in. The appeals court agreed, but made it clear that agents have to have individualized suspicion of wrongdoing first (which, they said, the agents did have in this case).

Normally, to search you, your home, car, electronic devices, etc., the government needs a warrant because you have a reasonable expectation of privacy regarding those things. However, there are many exceptions to this rule. At the border, because of heightened security risks, the government has more leeway for searching your things (and an international airport is treated as the border for legal purposes). So, the question is whether authorities need some justification for searching your phone or other device, like they do for a body cavity search, or whether they can treat it more like your luggage and perform routine searches.

Individualized Suspicion Required to Search Phone

The Supreme Court has already said that border searches that are "highly intrusive" require individualized suspicion of wrongdoing. In the case at hand, the Fourth Circuit Court of Appeals ruled that a forensic search of your phone is one of these highly intrusive searches because it more deeply intrudes on your privacy. So, border agents must have that individualized suspicion before conducting one. And actually, shortly after arguments were presented in this case, the Department of Homeland Security adopted a policy requiring reasonable suspicion for forensic searches of phones at the border.

It's important to note that this is not required for what's known as a "manual search" of your phone - where a border agent looks through the phone using the touch screen. Forensic searches are more involved and entail hooking your phone up to external equipment or software.

If you think you were subjected to an unlawful search by the TSA or other border agents, speak with an attorney to assess the strength of your case and discuss your options.

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