Border Agents Search Phones Without Warrants. This Case Asks the Supreme Court if That’s Constitutional

What started as a “narrow constitutional exception” now “threatens to swallow the protection it was meant only to qualify,” according to an amicus brief filed last week by the Cato Institute asking the Supreme Court to reconsider a petition about warrantless searches of Americans at the border. 

The petitioner is George Anibowei, a Texas-based immigration attorney who has, on five separate occasions when traveling internationally, been stopped and had his phone searched at the border by federal agents. The law gives agents the authority to seize and search property—including cellphones and other electronic devices—without a warrant and without suspicion when crossing a border. Federal courts have upheld this policy under the border search exception—which defers to the sovereign’s right to protect itself and requires no warrant, probable cause, or suspicion for a search—and have extended the exception to include the contents of a person’s cellphone.

In Riley v. California (2014), the Court rejected the government’s argument that “a search of all data stored on a cellphone is ‘materially indistinguishable'” from searches of physical items, comparing it to “saying a ride on horseback is materially indistinguishable from a flight to the moon.”

In another new amicus brief, the Constitutional Accountability Center argues that the border search exception runs counter to the Court’s ruling in Riley, allowing federal agents to “rummage at will through the records stored on those devices,” effectively giving the federal government the power to “indiscriminately search and seize the ‘papers’ of the people.” It’s a sentiment backed by the brief filed by The Rutherford Institute, which states that instead of being used to advance the sovereign interest of border security, the government has “repeatedly used the exception as a tool to violate Americans’ civil liberties by capitalizing on international travel as a convenient opportunity to avoid the Fourth Amendment’s warrant requirement.” 

Amy Peikoff, an attorney with the Pacific Legal Foundation (PLF), who represents Anibowei, says it’s a “trespass on your papers when the government searches the contents of your cellphone without a warrant, and it really shouldn’t be allowed under the Fourth Amendment at all.” She tells Reason that the “contents of your cellphone are very different from anything else to which the traditional border search exception applied.” 

Stanford law professor Orin Kerr writes at The Volokh Conspiracy that expanding the border search exception effectively allows the government to “look through everyone’s phone for evidence of crime without any cause because the government has an interest in solving crime that the border doctrine allows it to pursue.” 

It’s hard to imagine a cellphone search conducted in a nonintrusive manner. When federal agents search a phone, they can look through photos, documents, apps, notes, and other digital files. 

Peikoff points out that most people keep just as much information on their cellphones as they do in their homes. “Houses, papers, and effects have always been treated with particular solicitude under the Fourth Amendment,” Peikoff says. “We are just asking for that same amount of solicitude to be applied in the context of traveling over the border.” She points to Justice Neil Gorsuch’s concurring opinion in Chatrie v. United States (2026), which states that “it should hardly come as a surprise that the Fourth Amendment might protect as personal ‘effects’ electronic diaries of one’s travels as it always has more traditional ones.” 

In Anibowei’s capacity as an attorney, a warrantless border search of his cellphone presents additional problems. It could, as the American Bar Association claims in its amicus brief, “threaten attorneys’ important ethical duty of confidentiality and the attorney-client privilege,” exposing “significant amounts of confidential and privileged information to third parties.”

It’s unclear if the Court will hear Anibowei’s case. The Court denied his first petition for a writ of certiorari in 2024. 

Still, Peikoff believes the Court can no longer afford to wait. In our digital world, the extent to which the Fourth Amendment protects Americans at the border is a pressing issue.

Border Agents Searched His Phone 5 Times Without a Warrant. He’s Asking the Supreme Court To Put a Stop to It.