by Sam Rutherford

The U.S. Court of Appeals for the Seventh Circuit held that the routine inspection and search of a traveler’s electronics, or for that matter any other type of property, at the border by Customs and Border Protection (“CBP”) agents may be conducted without a warrant, probable cause, or even individualized suspicion of wrongdoing. In reaching this conclusion, the Court joined every other circuit court that has considered the issue.

In February 2016, Marcos Mendez landed at O’Hare International Airport following a trip to Ecuador. Along with his baggage, Mendez carried with him three electronic devices: (1) a personal cellphone, (2) a work phone, and (3) a work iPad. Based on Mendez’s criminal record, which included 2010 conviction for indecent child solicitation and prior travel history to potential child-­trafficking source countries, CBP agents pulled him aside and searched his belongings, including his electronics. Agents used a technology called DOMEX to extract the contents of his phone. They found thousands of images of child pornography.

Mendez was indicted on multiple counts of child pornography related offenses and moved to suppress the images found on his phone. He argued that the search of his phone violated the Fourth Amendment because it was supported by neither a warrant based on probable cause nor reasonable, individualized suspicion of criminal activity. The U.S. District Court for the Northern District of Illinois denied the motion, and Mendez pleaded guilty to one count of producing child pornography but preserved his right to appeal the District Court’s suppression ruling.

The Court began its analysis by reiterating that the Fourth Amendment typically requires that searches be conducted pursuant to a warrant based upon probable cause and issued by a judge or that they fall withing a recognized exception to the warrant requirement, all of which turn on a finding that the search was conducted reasonably. Riley v. California, 573 U.S. 373 (2014). “Congress, since the beginning of our Government, ‘has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country.’” United States v. Flores-­Montano, 541 U.S. 149 (2004) (quoting United States v. Montoya de Hernandez, 473 U.S. 531 (1985)). This rule is based on “the long-­standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country.” United States v. Ramsey, 431 U.S. 606 (1977).

Most border searches are considered per se reasonable “simply by virtue of the fact that they occur at the border,” Flores-­Montano, and require no individualized suspicion at all. Montoya de Hernandez. Courts have therefore upheld suspicionless border searches of a traveler’s purse, wallet, or pockets, United States v. Carter, 592 F.2d 402 (7th Cir. 1979), and even permitted the suspicionless disassembling and reassembling of a vehicle’s fuel tank. Flores-­Montano. Even non-­routine border searches, such as detaining a traveler for 16 hours to monitor bowel movements or a visual body cavity search, requires nothing more than reasonable suspicion. Montoya de Hernandez; Kaniff v. United States, 351 F.3d 780 (7th Cir. 2003). But routine or otherwise, border searches never require a warrant. Ramsey.

However, Mendez argued that Riley and Carpenter v. United States, 585 U.S. 296 (2018), undermined this border-­search caselaw because in Riley and Carpenter, the U.S. Supreme Court recognized the special importance cellphones play in modern life and are fundamentally different from other types of personal effects. But the Court reasoned that these two cases are simply inapplicable because they involved searches of phones squarely on U.S. soil and had nothing to do with property searched at the border. In fact, in Riley, which involved the warrantless search of a phone incident to arrest, the Supreme Court specifically recognized that “other case-­specific exceptions may still justify a warrantless search of a particular phone.”

Every circuit court to have considered the issue has held that Riley does not alter the long-­standing rule that neither a warrant nor probable cause is required to search a cellphone at the border, although some courts have required reasonable suspicion to conduct forensic, digital searches. United States v. Haitao Xiang, 67 F.4th 895 (8th Cir. 2023); United States v. Cano, 934 F.3d 1002 (9th Cir. 2019); United States v. Kolsuz, 890 F.3d 133 (4th Cir. 2018). Furthermore, when it comes to simple manual searches of phones or other electronic devices, courts have not required even reasonable suspicion. United States v. Castillo, 70 F.4th 894 (5th Cir. 2023); Alasaad v. Mayorkas, 988 F.3d 8 (1st Cir. 2021); Cano. And at least one court has held that reasonable suspicion is not required for forensic, digital searches of electronics seized at the border. United States v. Touset, 890 F.3d 1227 (11th Cir. 2018).

The Seventh Circuit joined its sister circuit courts, holding that “brief, manual searches of a traveler’s electronic device are ‘routine’ border searches requiring no individualized suspicion.” The Court, however, refused to decide whether reasonable suspicion is required to conduct a more in-­depth digital, forensic examination of a phone seized at the border because resolution of that issue was not necessary to uphold the search in Mendez’s case.

The Court stated that CBP agents were well within their right to manually inspect his phone for no other reason than he was attempting to re-­enter the U.S., and once they conducted that initial manual search, they discovered thousands of child pornographic images that provided reasonable suspicion to seize the phone for further digital analysis. 

Accordingly, the Seventh Circuit affirmed the district court’s denial of Mendez’s motion to suppress and his conviction. See: United States v. Mendez, 103 F.4th 1303 (7th Cir. 2024).

Editor’s note: The Second Circuit has yet to weigh in on the issue of warrantless and suspicionless searches of electronics, including cellphones, at the border. Notably, however, in United States v. Sultanov, 2024 U.S. Dist. LEXIS 130742 (E.D.N.Y. 2024), the U.S. District Court concluded that a search of a cellphone at the border is a “nonroutine” search for Fourth Amendment purposes and held that the warrantless search of the defendant’s cellphone violated the Fourth Amendment because such searches must be supported by a warrant and probable cause. Nevertheless, the Court denied the motion to suppress, concluding that the Government acted in good faith. Anyone interested in this issue is encouraged to read both Mendez and Sultanov.  

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