Attorney Jeff Peek will discuss the following question often asked by clients:
Canimmigration search yourself cell phone when you come through an international checkpoint or airport?
Most of you are aware of the fourth amendment and protecting your rights against unreasonable searches and seizures from the government. The fourth amendment says, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…”
There are two notable exceptions to the fourth amendment.
The first exception is searches incident to arrest. Meaning you’ve been arrested. The cops handcuffing you, maybe let’s say a perfect example is driving while intoxicated. At that point, he’s going to pat you down. He’s doing that for his safety, for your safety to make sure there’s no contraband, make sure there are no weapons. But what happens when they find a cell phone in the pocket? At that point, historically, cops used to check your cell phone, which was used as a vital piece of information. But there’s a critical Supreme Court case, 2014 Riley v. California. For the first time, it protected a person from having the police officer check their cell phone if they had it on them during the arrest. Riley said if you have that kind of suspicion, you better get a warrant and show it. So it took away the ability to search a cell phone, from that exception to the fourth amendment.
Another exception to the fourth amendment is, any time you come through the airport checkpoints or any port of entry to the United States after international travel. You’re subjecting yourself to revision at that point. You don’t have the right to say, “Oh, you can’t search my, my luggage; that’s my personal effects.” They have a right to search for it. And right up to this point, immigration officers and customs officials can search those cell phones when you come in. It was very uncomfortable for a citizen named George Anibowei, who recently came in through Dallas-Fort Worth airport. He’s a naturalized U.S. citizen and a lawyer. He was going through customs when they wanted to search his cell phone. That bothered this lawyer because, first, just the privacy violation, but also because he’s representing clients who are suing the federal government for various things. He had information potentially on his phone revolving those cases. So, he is currently with a lawsuit pending that’s in the fifth circuit on appeal right now.
This topic has already been meted out by a couple of circuit courts in the country:
- The 11th circuit felt it was constitutional at border checkpoints, that border officers could indeed review your cell phone without a warrant.
- The 9th circuit says they at least have to have reasonable suspicion.
- The 4th circuit says, “Hey, that’s unconstitutional; you will need a warrant.”
We now have various courts who have disagreements about the standard that should be used.
As somebody who greatly values his fourth amendment right, I hope that this 5th circuit comes back and says, “We don’t feel comfortable authorizing searches of people’s papers and effects that exist in these cell phones.”
That’s all we have today, we’ll see you next Wednesday with more interesting immigration information.