ACLU urges 2nd Circuit to rethink no-warrant cellphone searches at US border

MANHATTAN (CN) — A Fourth Amendment carveout that gives U.S. Border Patrol agents the right to conduct warrantless searches shouldn’t apply to cellphones and laptops, the American Civil Liberties Union argued to a Second Circuit panel on Monday.

The “border search exception" allows federal officers to search people and items entering the United States, without reasonable suspicion or probable cause. But the ACLU says digital device searches don’t count because they “can reveal the mine run of somebody’s life.”

“It’s like searching someone’s home,” ACLU lawyer Esha Bhandari told the court. “It’s like searching the entire contents of someone’s mind.”

The ACLU is an amicus in the criminal case against Ezhil Kamaldoss, a convicted opioid distributor who was found guilty of operating a pill mill out of Queens. The case against Kamaldoss was largely predicated on his cellphone and laptop being searched at John F. Kennedy International Airport in 2019.

Both Kamaldoss and the ACLU claim that the Supreme Court holds cellphones and laptops to a higher standard for search than other personal items based on Riley v. California , in which the justices held that police must obtain a warrant before searching a cellphone seized during arrest.

“The Supreme Court in Riley v. California established this principle 11 years ago and explained exactly why cellphones are qualitatively and quantitatively different,” Kamaldoss’ attorney Brian Spears argued Monday.

Before that 2014 ruling, cellphones were subjected to the same scrutiny as an arrestee’s cigarette pack, which, under the 1973 Supreme Court ruling United States v. Robinson , is allowed to be searched by police without a warrant.

Now that police hold cellphones to a higher standard than other personal items, Bhandari claimed that the same logic should apply to federal agents at the U.S. border.

“The government argues that the border is simply different … but here, we’re talking about searches of people who have not been suspected of any crime,” Bhandari said.

It’s not the first time the U.S. Circuit Courts have tackled this issue. In 2018, the 11th Circuit upheld the conviction of a Florida man who was caught with child pornography on his phone during a warrantless cellphone search after an international cruise.

On Monday, the Second Circuit seemed hesitant to change precedent. U.S. Circuit Judge Myrna Perez, a Joe Biden appointee, acknowledged that “no one has gone as far as you guys are asking us to go.” She also took issue with the notion that personal electronics be held to a higher standard for search than that of the person themselves.

“Are you effectively asking us to find that doing a body cavity search for drugs requires less protection than looking at somebody’s laptop?” Perez asked.

Bhandari said that is indeed the position the ACLU is taking, as it is consistent with Riley . Spears added it is necessary to alter constitutional exceptions like this to keep up with “the advancement of technology.”

Despite the panel’s broad skepticism, their argument appeared to garner sympathy from U.S. Circuit Judge Sarah Merriam, another Biden appointee, who simply asked the government: “So why not just get a warrant?”

Assistant U.S. Attorney Robert Pollack replied that, at the time, there had never been a case anywhere in the United States that said a warrant was necessary. And that principle has been “reaffirmed repeatedly by the Supreme Court and by this court.”

“I think the reason why we didn’t get a warrant is because the case law didn’t say we needed to,” Pollack said.

Joining Perez and Merriam on Monday’s panel was U.S. Circuit Judge Michael Park, a Donald Trump appointee. The court didn’t immediately issue a ruling after the arguments.

Follow @Uebey Follow @uebey.bsky.social