CBP Needs Warrant To Search Phones, Says Yet Another Judge

Arthur T Knackerbracket has processed the following story:

US border agents must obtain a warrant, in New York at least, to search anyone's phone and other electronic device when traveling in or out of the country, another federal judge has ruled.

Judge Nina Morrison of the Eastern District of New York issued a decision [PDF] last week that Customs and Border Patrol ([CBP]) officials need a warrant to search citizens and non-citizens' electronics in all but the most exceptional of circumstances.

"It is one thing for courts to give border officials the authority to briefly detain and question air travelers and search their physical belongings," Judge Morrison opined. "But it is an entirely different matter for courts to exempt those agents from the Fourth Amendment's probable cause and warrant requirements in the vastly more intrusive context of a cellphone search."

The case in question involved the detention and questioning of naturalized US citizen Kurbonali Sultanov at New York's John F. Kennedy airport in March 2022 on suspicion he was in possession of child sexual abuse material (CSAM). After being told by CBP officers that he had no choice but to give them access to his phone, Sultanov provided his password and allowed officers to search his device.

Based on a cursory search, and comments Sultanov made to CBP, officers obtained a warrant to search two additional phones found in his possession, leading to his indictment onalleged possession of CSAM.

The judge's decision last week pertained to Sultanov's request to suppress both the contents of his phones found in the search and his comments to CBP. The former was a violation of his Fourth Amendment rights against unreasonable search and seizure, Sultanov argued, while entering his statements into evidence violated his fifth amendment right against self-incrimination.

Morrison decided that, while the government was wrong to perform its initial search of Sultanov's phone without a warrant, the evidence would be allowed to stand "because the search warrant was issued and executed in good faith."

Because Sultanov is not a native English speaker who was unable to be properly informed of his Miranda rights, Morrison decided to strike his comments from evidence.

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