S.D.N.Y.: Copying cell phone at border was unreasonable, but GFE and a later SW saved it

Defendant’s cell phone was copied when he came back to Newark airport after a flight to Jamaica. “As such, the Court concludes that the Government may not copy and search an American citizen’s cell phone at the border without a warrant absent exigent circumstances.” The good faith exception, however, saves this search because CBP policy authorized manual searches and photocopying of notebooks, and it was not unreasonable to believe that a cell phone could thus be copied, too. Finally, there was a later issued search warrant, and the court finds good faith from that, too. United States v. Smith, 2023 U.S. Dist. LEXIS 82455 (S.D.N.Y. May 11, 2023):

In holding that warrants are required for cell phone searches at the border, the Court believes it is applying in straightforward fashion the logic and analysis of Riley to the border context. Importantly, however, the Court recognizes that of the five federal courts of appeals to consider the question, none has gone quite this far (although the Ninth Circuit has come close). But it is clear that both the Ninth Circuit and the Fourth Circuit would have required a warrant for the search conducted here.

. . .

For the foregoing reasons, the Court concludes that the warrantless search of Smith’s cell phone was unreasonable under the Fourth Amendment. As discussed above, this Court’s preferred rule –that phone searches at the border generally require warrants outside exigent circumstances — is somewhat more protective than the approach of any circuit court to consider the question. But even under the approaches of the Fourth and Ninth Circuits, a warrant would have been required to search Smith’s phone since this was neither a search for digital contraband nor for evidence of physical contraband. Cano, 934 F.3d at 1018; Aigbekaen, 943 F.3d at 720-21. Thus, whether the Government must obtain a warrant for all border cell phone searches (absent exigent circumstances), or just those border phone searches not immediately connected with preventing unwanted persons or things from entering the country, a warrant was required here.

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