Immigration Article of the Day: Cell Phones Are Not Suitcases: Today's Reasonable Application of the Border Search Exception by Philetus Holt

Cell Phones Are Not Suitcases: Today's Reasonable Application of the Border Search Exception by Philetus Holt, Fordham Urban Law Journal, Volume 52, 2025

Abstract

Today, a federal agent at an airport can take anyone's cell phone and look at every picture, message, and file on that phone, regardless of whether that agent suspects the traveler of committing a crime. Courts and government agencies treat cell phones like suitcases: just as a CBP agent can open someone's suitcase to check for contraband, so too can they view the contents of a traveler's electronic device. This awesome power, which is ripe for abuse, is premised on the government's responsibility to prevent contraband from entering the country. This Note argues that the principles underpinning the Border Search Exception to the Fourth Amendment are obsolete when applied to electronic devices. Instead, agents should only be able to search a traveler's phone when they reasonably suspect the traveler is engaging in transnational criminal activity. This balances the reasonable expectations of privacy inherent in personal electronic devices with the government's compelling interest in preventing dangerous people and things from entering the United States.