The George Anibowei case, involving a U.S. citizen subjected to multiple border searches of his phone, highlights the extent to which border authorities have intruded in recent years.
George Anibowei, a U.S. citizen and Texas-based immigration attorney with a client roster that often challenges the Department of Homeland Security, has had his phone inspected by border agents at least five times without a warrant as he returns to the United States.
During the first encounter, investigators duplicated the phone’s entire data set, including his confidential exchanges with clients. That material remains in government hands, and Anibowei still does not know why it was preserved or who has access to it. He now leaves his business phone behind when he travels.
On September 29, the Supreme Court asked the federal government to respond to Anibowei’s petition, which questions whether the Fourth Amendment allows border agents to search the contents of a mobile device without a warrant. (I am among his counsel.) The government declined to file a response, anticipating the Court would deny the petition without a deeper review.
Yet in 2021, the solicitor general told the Court that this very issue had produced an “entrenched circuit conflict” of “considerable practical importance.” The disagreement has intensified since. Seven federal appeals courts now hold that a warrant is never necessary to search a phone at the border, while the 4th and 9th Circuits require one in at least some situations. That means one of your constitutional rights may depend on the airport you fly into.
Although circuit courts may diverge, the Supreme Court has already indicated the proper answer. In Riley v. California (2014), the Court unanimously ruled that police generally need a warrant to search a phone in the course of an arrest. An exception exists for searches incident to arrest to protect officers and preserve evidence, but data cannot harm an officer, and a phone can be secured while a warrant is obtained. Extending an old exception to digital data, the Court stated, “has to rest on its own bottom.” Treating a phone like any other container found in an arrestee’s pocket was deemed analogous to a ride on horseback being indistinguishable from a flight to the moon.
The border-search exception fails the same test. Those searches serve to collect duties, regulate entry, and curb contraband. But duties attach to physical objects, not to data. As legal scholar Orin Kerr has observed, agents “will not locate a person smuggled inside a computer’s hard drive.” As for digital contraband, anyone seeking illicit files can simply carry a clean phone and download them after clearing customs. Suspicionless phone searches burden millions of innocent travelers while hardly hindering smugglers.
The circuits that disagree largely cite each other. But the Supreme Court rejected a lopsided lower-court consensus in Riley, and did so again in Carpenter v. United States (2018). Simply tallying court opinions cannot substitute for a constitutional ruling.
Champions of these searches invoke history. In United States v. Ramsey (1977), the Court noted that the first Congress authorized warrantless customs searches in 1789, less than two months before proposing the Fourth Amendment. That is true in substance, but the statute permitted officers to search ships for concealed dutiable goods. To search a dwelling for the same goods, officers needed a warrant. And nothing in the statute authorized reading a traveler’s papers.
That distinction was deliberate. Customs abuses had helped spark the Revolution. Writs of assistance granted British officers broad authority to search as they pleased, a power James Otis warned jeopardized “the liberty of every man in the hands of every petty officer.” The founding generation protected letters with particular vigilance. Benjamin Franklin, as the first postmaster general, required postal workers to swear they would not open mail without an explicit written warrant.
Even Ramsey, often cited as the border-search precedent, acknowledged that distinction. It approved opening international mail to search for contraband, yet the regulations before the Court clearly prohibited reading correspondence without a warrant, a point the justices emphasized repeatedly. The Court has never held that border agents may read a traveler’s papers without a warrant. A phone stores years of correspondence and thus deserves at least the same protection the Founders granted to a sealed envelope.
Last month, however, the Second Circuit joined the ranks of those who have cast aside this tradition. In United States v. Alisigwe, Judge Steven Menashi wrote that agents require no suspicion to search a traveler’s property at the border, including phones. A border search becomes non-routine, he reasoned, only when it intrudes on the person, as in a strip search. A phone is property, therefore its search is routine.
Judge Eunice Lee concurred, agreeing that no warrant was necessary. Yet she cautioned that the majority’s rule permits suspicionless searches for any reason, “including political or discriminatory ones.”
The Alisigwe majority’s premise misreads the Fourth Amendment. The text places “persons, houses, papers, and effects” in a single, non-hierarchical list. The abuses that prompted the amendment were searches of property, including private papers. While agents may properly physically inspect a phone to ensure it is not a concealed container for contraband, reading or viewing its digital contents without a warrant intrudes on a person’s papers and effects. The framers protected property because they recognized that human beings inhabit the physical world by exercising their property rights, and so inspecting our property can reveal much about our lives.
Alisigwe is the latest pronouncement from an appellate court, but it introduces complications for the constitutional issue. The trial court had found reasonable suspicion, so the no-suspicion rule might not have been essential to resolve the case. That suspicion involved a forged passport, which touches identity and admissibility—the core of border authority. And Alisigwe involved a permanent resident rather than a citizen, which heightened the government’s interest in determining who may enter.
Anibowei’s case is straightforward on each point, which fuels optimism that the Supreme Court will take it up and settle the Fourth Amendment question now. Anibowei is a naturalized citizen, with no insinuations against him, and he directly challenges the government’s search practices rather than seeking suppression in a criminal case. As the Fifth Circuit itself noted, his case “turns squarely and solely” on the warrant question.
The stakes are only rising. In fiscal year 2025, Customs and Border Protection (CBP) conducted searches of 55,318 electronic devices—almost eleven times the number in 2012—and nearly a quarter of those searches targeted U.S. citizens. Under the directives Anibowei challenges, agents may retain what they discover and share it with federal, state, local, and foreign agencies. Investigators have learned to wait for a traveler to return from abroad and request a phone search at the border, rather than attempting to demonstrate probable cause to a judge. It is no surprise that universities, bar associations, and press-freedom groups now counsel travelers to leave their devices at home.
The Founders rose in rebellion against officers who could search at will and read whatever they found. Adopting a rule that border agents may scroll through a citizen’s correspondence, photos, and client files without a warrant or any suspicion would revive that power. The Supreme Court should seize Anibowei’s case. Our papers do not lose Fourth Amendment protections at the border simply because they are stored digitally.
