Can Border Agents Search Your Cell Phone?

By Zachary Margulis-Ohnuma

Imagine you are met on the tarmac getting off a plane at JFK Terminal Two by armed customs officers. They tell you to come with them. They drive you to a secure area in Terminal Four, where foreigners are “processed” — i.e detained until they are admitted into the U.S. or sent to immigration custody. At Terminal Four, the officers do a normal customs search, then ask you to wait in a windowless room. Plainclothes investigators enter and tell you that they are going to search your cell phone and iPad. “No you are not,” you say. “I have a Fourth Amendment right to be free of unreasonable searches and seizures.” They respond that the “protection of the Fourth Amendment does not apply at the U.S. border.” They give you a “choice” — you can leave, but you have to leave your cell phone and iPad behind to be searched. Or you can give them your passcodes and, if they don’t find anything on your devices, you can be on your way. You give them the passcodes. They find pictures they believe are child pornography — they are not — and take you away in handcuffs.

Is this a “routine” border search, or something else? Have your Fourth and Fifth Amendment rights been violated?

Those are questions that principal attorney Zachary Margulis-Ohnuma will argue tomorrow before a panel of judges at the New York Supreme Court Appellate Division, Second Department. The ACLU and Electronic Frontier Foundation argued in an amicus brief that, under these circumstances, a warrant based on probable cause is required to search the devices. The state believes the search was proper because a federal agent had some vague notion that a house associated with a family member of the defendant was at some point in the past used to download child pornography. We’ll argue that more is needed to justify a search of electronic items at the border, just like a warrant was required to search a cell phone incident to arrest in the 2014 Supreme Court case Riley v. California. Moreover, under these circumstances the provision of the passcodes was not a voluntary act but was the product of coercion, and thus information derived from the passcodes cannot be used against the defendant under the Fifth Amendment.

But wait there is more: the conviction in the case also rested on a statement taken from the defendant while he was in custody after he had invoked his right to counsel under Miranda v. Arizona. The People went on to argue that that statement, illegally taken, proved beyond a reasonable doubt that the defendant knew that two unplayable files on his iPad contained illegal sexual performances by a child.

Although we look forward to a spirited argument on these lofty constitutional principles, the case may very well be decided on more pedestrian grounds. Queens prosecutors waited too long to bring the case to trial under CPL 30.30, which gives them 182 days to get ready for trial. They claimed the defendant waived his speedy trial time, but were unable to produce any proof of that. Under New York law, that alone should be enough to get the conviction reversed.

The argument will be heard at 10 a.m. tomorrow at the Second Department Appellate Division, 45 Monroe Place, Brooklyn, NY 11201.