October 01, 2026
Documents
Anibowei v. Blanche Amicus brief
The Supreme Court is being asked to decide whether the government may search the digital contents of Americans’ cell phones at the border and international airports without first providing a valid reason and obtaining a warrant.
The federal government has long exercised broad authority to conduct searches at the nation’s international borders and airports. Historically, that authority has been tied to the government’s responsibility to regulate entry into the United States, enforce customs laws and prevent contraband from being brought into the country.
Modern technology, however, has complicated the constitutional assumptions underlying that traditional rule.
A suitcase contains a finite collection of physical items that a traveler chooses to carry. A modern smartphone can contain years of private communications, photographs, financial records, medical information, internet activity, location histories and other sensitive information. It can provide a detailed record of where a person has been, whom that person communicates with, what he or she reads, purchases and searches for, and, in some instances, information relating to activities inside the home.
That distinction is at the center of Anibowei v. Blanche, a case in which the U.S. Supreme Court has been asked to review the constitutionality of warrantless cell phone searches at international borders and airports. In calling on the Court to affirm that the government must obtain a warrant before searching the digital contents of Americans’ electronic devices at an international border, The Rutherford Institute argues that applying a doctrine developed for searches of physical goods and luggage to modern smartphones goes far beyond the purpose of the border-search exception and fails to account for the extraordinary privacy interests implicated by digital devices.
The Border-Search Exception
The Fourth Amendment protects the right of the people to be secure in their “persons, houses, papers, and effects” against unreasonable searches and seizures.
Ordinarily, government officials must obtain a warrant by proving to an independent judicial officer that there is probable cause evidence of a particular crime will be found before conducting a search that intrudes upon constitutionally protected privacy interests. Courts have nevertheless recognized exceptions to that general requirement, including a longstanding exception for searches conducted at international borders.
The border-search exception developed from the government’s sovereign authority to control what and who enters the country. The Supreme Court has historically tied that authority to such interests as preventing contraband from being smuggled into the United States and enforcing customs laws.
Those historical justifications make intuitive sense when officials are inspecting luggage, vehicles, cargo and other physical items crossing the border.
The difficulty arises when the same doctrine is applied to electronic devices of Americans returning home.
Digital information also does not cross a border in the same manner as physical contraband. Data may be stored locally on a device, remotely on servers, or in some combination of the two. Current CBP policy limits border searches to information resident on the device and prohibits officers from using the device to access information stored solely in the cloud. That limitation itself illustrates the imperfect fit between traditional border-search principles and digital information: identical information may be subject to inspection if downloaded to a phone but beyond the scope of a border search if stored only remotely.
Rutherford Institute’s brief argues that a rule permitting routine warrantless searches of phones therefore bears an increasingly weak relationship to the historical purposes that justified the border-search exception in the first place. Moreover, requiring a warrant for the digital contents of a phone would not leave government agents unable to respond to genuine emergencies. Existing Fourth Amendment doctrines already recognize exceptions for exigent circumstances, including situations involving the imminent destruction of evidence, the pursuit of a fleeing suspect or an immediate threat to safety.
The Anibowei Case
George Anibowei is an immigration attorney whose cell phone contains confidential communications with clients, including individuals involved in removal proceedings adverse to the Department of Homeland Security.
According to the court filings, federal agents have repeatedly searched Anibowei’s phone five different times when he returned to the United States from international travel. During the first search, agents copied the data stored on his phone, which the government continues to retain according to the cert petition. The repeated searches have affected how Anibowei travels, leading him to leave his work phone behind when traveling internationally. The border-search exception likewise affects how many attorneys, journalists, and others with confidential or privileged information stored on their phones travel.
The Fifth Circuit has held that basic or manual cell phone searches at the border do not require a warrant, while an advanced or forensic search using external equipment to copy or analyze a device’s contents requires, at most, merely reasonable suspicion rather than a warrant. In Anibowei’s case, the appeals court concluded that its existing precedent foreclosed his Fourth Amendment challenge.
The Rutherford Institute is asking the Supreme Court to review that approach.
The issue extends well beyond a single attorney or a single border encounter. In fiscal year 2025, U.S. Customs and Border Protection conducted 55,318 searches of electronic devices at ports of entry, an increase of more than 30 percent over the number conducted in 2023. Americans also make more than 100 million international trips annually.
As the number of electronic-device searches increases, the constitutional question becomes increasingly significant: how much access should the government have to the private digital information carried by American travelers who have done nothing more than cross an international border?
Why Cell Phones Are Constitutionally Different
The Supreme Court has already recognized that modern cell phones present privacy concerns unlike those associated with most physical objects.
In Riley v. California, the Court held that police generally must obtain a warrant before searching a cell phone seized during an arrest. The decision rejected the notion that a phone could simply be treated like other physical objects found on an arrested person.
The distinction rests on both the amount and the nature of the information stored on modern devices.
A single smartphone may contain private communications, photographs, health information, financial records, internet history, location data and information generated by dozens of applications. Taken together, those records can reveal a comprehensive picture of an individual’s personal life. The Rutherford Institute’s brief describes modern smartphones as devices capable of providing an unusually detailed account of a person’s communications, movements and activities.
The privacy implications extend beyond information traditionally associated with a telephone.
Health applications may contain medical records and information about sleep, heart rate and physical activity. Financial applications may show banking and spending patterns. Internet histories may reveal personal interests or concerns. Mapping and location applications can document a person’s movements over time. Applications connected to home-security systems can, in some circumstances, contain video or other information originating inside the home.
The Supreme Court confronted related concerns earlier this year in United States v. Chatrie, another case in which The Rutherford Institute filed an amicus brief. There, the Court held that government acquisition of certain geofence location data constitutes a search under the Fourth Amendment. The Anibowei brief relies in part on that developing body of digital-privacy law in arguing that constitutional protections should not diminish simply because the search takes place at a border.
Using the Border to Investigate Domestic Crimes
The Rutherford Institute’s brief also raises concerns about the ways the border-search exception has been used in investigations unrelated to border security.
Several cases cited in the brief involved law enforcement officers who suspected individuals of ordinary domestic crimes and then used international travel as an opportunity to seize and search their electronic devices.
In one case, agents investigating insurance fraud waited until an American citizen returned from Jamaica before seizing his phone and demanding his password. In another, officers investigating a flight attendant for fraud tracked her international travel and seized her phone and laptop when she returned to the United States. A third case involved officers who waited until a suspect returned from visiting family abroad before searching his phone.
These cases did not principally involve contraband being smuggled across the border or crimes arising from international travel.
Instead, the border supplied an opportunity to conduct searches that otherwise would have been subject to ordinary Fourth Amendment requirements. And under the border-search exception, law enforcement agents do not even have to be investigating or have suspicion of a particular crime to search your phone.
This illustrates the danger of treating the border-search exception as a categorical authorization to inspect digital devices as well. A doctrine justified by the government’s need to regulate the physical border can become, in practice, a mechanism for avoiding the warrant requirement.
The Fourth Amendment’s Protection of “Papers and Effects”
The constitutional question also implicates the text and history of the Fourth Amendment.
The Amendment specifically protects “persons, houses, papers, and effects.” Although smartphones did not exist when the Bill of Rights was adopted, constitutional protections are not limited to the technology available in the eighteenth century.
The Rutherford Institute argues that modern phones implicate nearly every category identified in the Fourth Amendment because they aggregate information once kept separately in homes, correspondence, records and personal possessions.
A smartphone can contain private communications that once would have existed as letters; financial information once maintained in ledgers; maps and travel records once kept on paper; and personal writings once maintained in journals or diaries.
The brief therefore argues that electronic devices should not receive less constitutional protection merely because those traditional “papers and effects” have migrated into digital form.
That argument also reflects the historical concerns that gave rise to the Fourth Amendment.
The Founding generation was deeply familiar with general warrants and writs of assistance, which gave government officials broad discretion to search private property for evidence. The Fourth Amendment was intended, in significant part, to impose limits on that kind of generalized governmental rummaging.
The capacity of a modern smartphone to consolidate vast amounts of personal information makes those historical concerns particularly relevant. A search of a single electronic device may reveal information that once would have required access to a person’s home, correspondence, financial records, photographs and other possessions.
The form of the information has changed. The underlying constitutional interest in protecting private papers and effects from unrestricted government inspection has not.
What the Supreme Court Is Being Asked to Decide
Anibowei presents a broader question about how established Fourth Amendment rules should apply when traditional search exceptions encounter technologies capable of revealing unprecedented amounts of personal information.
The government retains substantial authority to regulate the nation’s borders. The issue is whether that authority should permit warrantless access to the digital contents of an American traveler’s phone without regard to the fundamentally different privacy interests involved.
The Rutherford Institute maintains that it should not.
The Institute has asked the Supreme Court to grant review and clarify that the border-search exception does not provide blanket authority to search Americans’ electronic devices without a warrant. Where genuine emergencies exist, established exceptions to the warrant requirement remain available. But routine international travel, standing alone, should not place the entirety of a person’s digital life outside the Fourth Amendment’s protections.
As more of Americans’ private lives move onto the devices they carry, the answer will determine not only the scope of government authority at the border but also the continuing meaning of the Fourth Amendment in the digital age.
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