Amicus Curiae Brief — George Anibowei, Petitioner v. Alejandro N. Mayorkas, Secretary of Homeland Security, et al.

Supreme Court briefOct 2, 2023

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No. 23-199

IN THE

Supreme Court of the United States

GEORGE ANIBOWEI,

Petitioner,

ALEJANDRO MAYORKAS, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF THE CATO INSTITUTE AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

Clark M. Neily III

Laura Bondank

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

Blaine H. Evanson

Counsel of Record

Daniel R. Adler

Patrick J. Fuster

Matt Aidan Getz

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

(949) 451-3805

bevanson@gibsondunn.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ............................................................... 6

The Petition Should Be Granted Because

Warrantless Cell-Phone Searches Generally

Violate the Fourth Amendment. .......................... 6

A. History Instructs That the Border-Search

Exception Does Not Permit the

Warrantless Search of “Papers.” ................... 6

B. This Court’s Precedent Confirms That

Warrantless Cell-Phone Searches Violate

the Fourth Amendment. ............................. 13

II. Review Should Be Granted Now. ....................... 20

CONCLUSION .......................................................... 23

TABLE OF AUTHORITIES

Page(s)

Cases

Alasaad v. Mayorkas,

988 F.3d 8 (1st Cir. 2021) .................................... 19

Boyd v. United States,

116 U.S. 616 (1886) ...................... 3, 8, 9, 10, 12, 17

Brower v. County of Inyo,

489 U.S. 593 (1989) ................................................ 8

Carpenter v. United States,

138 S. Ct. 2206 (2018) ........................ 2, 6, 8, 17, 18

Carroll v. United States,

267 U.S. 132 (1925) ................................ 4, 6, 12, 19

Entick v. Carrington,

19 How. St. Tr. 1029 (C.P. 1765) ................... 3, 7, 8

Ex parte Jackson,

96 U.S. 727 (1878) .............................................. 3, 9

Kyllo v. United States,

533 U.S. 27 (2001) ................................................ 18

Leach v. Money,

19 How. St. Tr. 1001 (K.B. 1765)........................... 8

Olmstead v. United States,

277 U.S. 438 (1928) ................................................ 9

Riley v. California,

573 U.S. 373 (2014) ................... 3, 4, 5, 6, 7, 13, 14,

15, 16, 17, 18, 19, 22

United States v. Aigbekaen,

943 F.3d 713 (4th Cir. 2019) .......................... 19, 21

iii

United States v. Cano,

934 F.3d 1002 (9th Cir. 2019) .............................. 21

United States v. Di Re,

332 U.S. 581 (1948) .............................................. 17

United States v. Flores-Montano,

541 U.S. 149 (2004) .............................................. 11

United States v. Jones,

565 U.S. 400 (2012) ................................................ 8

United States v. Molina-Isidoro,

884 F.3d 287 (5th Cir. 2018) ................................ 10

United States v. Montoya de Hernandez,

473 U.S. 531 (1985) .............................................. 12

United States v. Ramsey,

431 U.S. 606 (1977) ............................ 10, 11, 12, 13

United States v. Seljan,

547 F.3d 993 (9th Cir. 2008) .................................. 9

United States v. Touset,

890 F.3d 1227 (11th Cir. 2018) .................. 9, 21, 22

United States v. Vergara,

884 F.3d 1309 (11th Cir. 2018) ............................ 22

United States v. Williams,

942 F.3d 1187 (10th Cir. 2019) ............................ 21

United States v. Xiang,

67 F.4th 895 (8th Cir. 2023) .......................... 21, 22

Wilkes v. Wood,

19 How. St. Tr. 1153 (C.P. 1763) ........................... 7

Constitutional Provisions

U.S. Const. amend. IV ................................................. 6

Statutes

19 U.S.C. § 482 .......................................................... 11

Collection Act of 1789, ch. 5, 1 Stat. 29 ................ 3, 10

Tariff Act of July 4, 1789, ch. 2, 1 Stat. 24 ............... 11

Other Authorities

Brady, The Lost “Effects” of the Fourth

Amendment: Giving Personal Property

Due Protection,

125 Yale L.J. 946 (2016) ...................................... 11

CBP Enforcement Statistics Fiscal Year 2023:

Border Searches of Electronic Devices,

U.S. Customs & Border Prot.,

https://tinyurl.com/4f8asnbt ................................ 20

Dolan, How Mobile Users Spend Their

Time on Their Smartphones in 2023,

Insider Intel. (Jan. 14, 2023),

https://tinyurl.com/yw8bmh2f ............................. 17

Leading Smartphone Users Activities

Worldwide from July 2022 to June 2023,

Statista, https://tinyurl.com/vfxbkpz .................. 17

Mobile Data Traffic Outlook, Ericsson,

https://tinyurl.com/mpezskan .............................. 16

Mobile Fact Sheet, Pew Rsch. Ctr. (Apr. 7, 2021),

https://tinyurl.com/4yprs4v3 ............................... 16

Note, The Border Search Muddle,

132 Harv. L. Rev. 2278 (2019) ............................. 10

Richter, Americans Keep Calling and Texting as

Data Use Explodes, Statista (Apr. 3, 2023),

https://tinyurl.com/37kh7etn ............................... 16

U.S. Customs & Border Prot., CBP

Directive No. 3340-049A, Border

Search of Electronic Devices (2018),

https://tinyurl.com/3bbn5at6 ............................... 20

IN THE

Supreme Court of the United States

No. 23-199

GEORGE ANIBOWEI,

Petitioner,

ALEJANDRO MAYORKAS, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF THE CATO INSTITUTE AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE*

The Cato Institute is a nonpartisan public policy

research foundation founded in 1977 and dedicated to

advancing the principles of individual liberty, free

markets, and limited government. Cato’s Robert A.

* No counsel for a party authored this brief in whole or in

part, and no entity or person other than Cato, its members, and

its counsel made a monetary contribution intended to fund the

preparation or submission of this brief. Counsel of record for the

parties received notice of Cato’s intent to file this brief at least

10 days before its due date under this Court’s Rule 37.2.

Levy Center for Constitutional Studies promotes the

principles of constitutionalism that are the foundation

of liberty. To those ends, Cato conducts conferences

and publishes books, studies, and the annual Cato Supreme Court Review.

Consistent with its values, Cato believes that the

Bill of Rights, including the Fourth Amendment, must

be preserved as a safeguard against government infringement on individual liberty. Cato offers this brief

to urge this Court to grant review and reaffirm that

the Fourth Amendment’s core protections do not evaporate at the border. The government’s power to conduct targeted searches at the border has never given

officers a free-floating right to search or seize all of a

traveler’s private papers. And those historical protections are even more vital today because, as a practical

matter, travelers now carry nearly all of their private

papers with them on their cell phones.

SUMMARY OF ARGUMENT

I. The Fourth Amendment generally forbids government agents to search or seize the digital contents

of cell phones without first obtaining a warrant. That

prohibition applies to searches of cell phones at the

border no less than anywhere else.

A. As a matter of history, this Court has recognized that the government’s ransacking of a person’s

private papers was the epitome of “an unreasonable

search and seizure when the Fourth Amendment was

adopted.” Carpenter v. United States, 138 S. Ct. 2206,

2214 (2018) (cleaned up). At the time of the Founding,

English decisions had already established that indiscriminate searches and seizures of private papers, a

person’s “dearest property,” “would be more pernicious to the innocent than useful to the public.”

Entick v. Carrington, 19 How. St. Tr. 1029, 1066, 1073

(C.P. 1765). Decisions like Entick “undoubtedly” influenced “those who framed” the Fourth Amendment’s

protection of private papers. Boyd v. United States,

116 U.S. 616, 626-27 (1886). And they also have held

sway with this Court, which has recognized from its

earliest Fourth Amendment decisions that “[t]he constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches

and seizures extends to their papers, thus closed

against inspection, wherever they may be.” Ex parte

Jackson, 96 U.S. 727, 733 (1878).

The border-search exception to the Fourth

Amendment’s warrant requirement has never permitted government agents to perform sweeping searches

of private papers. From its roots in the Collection Act

of 1789, this exception has been limited to searching

for “stolen goods” and “goods forfeited for a breach of

the revenue laws.” Boyd, 116 U.S. at 623 & n.†. The

Collection Act, like the English laws on which it was

based, gave agents the ability to search vessels and

containers for dutiable items like tea or rum—but

nothing suggests agents at the Founding could have

boarded a ship and demanded to read the captain’s

log, the first mate’s diary, or a passenger’s cherished

correspondence.

In short, the Fourth Amendment’s history reveals

that the government cannot search private papers

without a warrant and that this rule applies even at

the Nation’s borders.

B. The same holds true as a matter of precedent.

In Riley v. California, 573 U.S. 373 (2014), this Court

held that the uniquely strong privacy interests in the

digital contents of a cell phone prevented government

agents from conducting warrantless searches of

phones, even pursuant to lawful arrests. Id. at 385403. The same should be true with respect to cellphone searches at the border.

Cell-phone searches intrude on liberty to a degree

unmatched by most other searches. Given the wealth

of private information that can be stored on a cell

phone and the ubiquity of smartphones in modern life,

virtually everyone now carries with them “a cache of

sensitive personal information.” Riley, 573 U.S. at

393-96. Searches of this vast and varied information,

this Court explained, “would typically expose to the

government far more than the most exhaustive search

of a house”—an invasion of privacy for which the

Fourth Amendment makes a warrant paramount. Id.

at 396-97. And since Riley, cell-phone usage has only

continued to grow. The government can reconstruct

practically everything about a person’s private life

from the universe of mobile apps on a typical phone—

banking and business, physical and mental health,

dating and romance, politics and peccadilloes.

The border-search exception, like the search-incident-to-arrest exception, does not override those privacy concerns. Now, as at the Founding, the government can search a traveler’s physical “belongings” to

determine which “effects which may be lawfully

brought in.” Carroll v. United States, 267 U.S. 132,

154 (1925). And the government may seize unlawful

items, just as it could seize stolen and smuggled property under the Collection Act. But that longstanding

authority does not give border officials a free pass to

search and copy the digital information on cell phones

that almost no person could travel without. True,

those who pass through the Nation’s borders do so

with a reduced expectation of privacy. But the mere

fact of “diminished privacy interests does not mean

that the Fourth Amendment falls out of the picture

entirely.” Riley, 573 U.S. at 392. The Amendment

still requires a warrant when, as here, “privacy-related concerns are weighty enough.” Id.

II. The time has come for the Court to address

this issue. It is not going away: growth in the use and

capacity of cell phones continues apace, and border

searches of phones are themselves becoming increasingly common. And since Riley, the courts of appeals

to weigh in have splintered hopelessly. Some have endorsed the government’s view that cell-phone

searches at the border are always reasonable; others

have demanded at least reasonable suspicion of criminal activity. Some courts have gone off on a tangent,

crafting different rules depending on whether

searches of cell-phone data are “manual” or “forensic.”

Still others have reached differing conclusions about

the government interests that define the necessary

limits of cell-phone searches at the border. Many of

these decisions share little reasoning in common—except that they all seem to neglect Riley’s insight that

cell-phone searches expose to the government a person’s most private papers, and in a quantity and variety unlike any other physical object the government

could search.

The patchwork quilt of different rules and reasoning now blanketing the Nation needs mending. The

Court should grant review, and it should hold that a

warrant is generally required before the government

can search the digital contents of a cell phone at the

border.

ARGUMENT

The Petition Should Be Granted Because

Warrantless Cell-Phone Searches Generally Violate the Fourth Amendment.

The Fourth Amendment shields every person’s

private spaces and thoughts from government intrusion. Today, the most important repository for private

information is not a safe, shoebox, or pillowcase; it is

a cell phone. So before government officials can rummage through the troves of information available on a

smartphone, they generally must first get a warrant.

That requirement does not yield simply because

the person holding the phone is standing at the border. That much is clear as a matter of history: the

border-search exception to the warrant requirement

has never permitted government agents to search

through the private “papers” enshrined in the Fourth

Amendment’s text. And it is equally clear as a matter

of precedent: this Court has already held that an exception to the warrant requirement could not justify

warrantless searches of cell phones, Riley v. California, 573 U.S. 373, 385-403 (2014), and the bordersearch exception should be no different.

A. History Instructs That the BorderSearch Exception Does Not Permit the

Warrantless Search of “Papers.”

The Fourth Amendment protects “[t]he right of

the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures.” In interpreting the Amendment, this Court

looks to the “historical understandings ‘of what was

deemed an unreasonable search and seizure’” at the

Founding. Carpenter v. United States, 138 S. Ct.

2206, 2214 (2018) (quoting Carroll v. United States,

267 U.S. 132, 149 (1925)). In this case, there is no

historical basis—in either English law or this Nation’s

traditions—for the warrantless search of papers at

the border.

1. Papers occupy pride of place in the Fourth

Amendment. The separate enumeration of “papers”

was a legacy of “the founding generation’s response to

the reviled ‘general warrants’ and ‘writs of assistance’

of the colonial era, which allowed British officers to

rummage through homes in an unrestrained search

for evidence of criminal activity.” Riley, 573 U.S. at

403. Across the Atlantic, English judges had already

curbed that practice in two landmark cases establishing that publishers could sue government agents who

ransacked their private papers. Wilkes v. Wood, 19

How. St. Tr. 1153 (C.P. 1763); Entick v. Carrington,

19 How. St. Tr. 1029 (C.P. 1765).

In Wilkes, government officials executed a limitless warrant at MP John Wilkes’s home, “rummaged

all the papers together they could find,” and “fetched

a sack, and filled it with papers.” 19 How. St. Tr. at

1156. The officials asserted a right to “seize [his] papers” upon the “general warrant.” Id. at 1167. Lord

Chief Justice Pratt disagreed, reasoning that such a

power would be “totally subversive of the liberty of the

subject,” and instructed the jury that the search and

seizure of the private papers were “clearly illegal.” Id.

at 1167-70.

Similarly, in Entick, officials entered the home of

John Entick, a writer critical of the Crown, and broke

open his chests and drawers, “carr[ying] away 100

printed charts [and] 100 printed pamphlets.” 19 How.

St. Tr. at 1030. The officials insisted that their ability

to search and seize papers was “essential to government, and the only means of quieting clamours and

sedition.” Id. at 1064. Lord Camden disagreed, explaining that papers are a person’s “dearest property;

and so far from enduring a seizure, that they will

hardly bear an inspection.” Id. at 1066. Although the

officials’ concerns about combating serious crimes

were no doubt weighty in the abstract, Lord Camden

foresaw that the asserted powers of search and seizure “would be more pernicious to the innocent than

useful to the public.” Id. at 1073.

This Court has called Entick a “monument of English freedom” that “undoubtedly” occupied “the minds

of those who framed the fourth amendment.” Boyd v.

United States, 116 U.S. 616, 626-27 (1886). That

makes Entick “the true and ultimate expression of

constitutional law with regard to search and seizure.”

United States v. Jones, 565 U.S. 400, 405 (2012)

(cleaned up); see, e.g., Brower v. County of Inyo, 489

U.S. 593, 596 (1989). And Entick reveals the special

reverence that English law accorded to private papers

at the Founding. Carpenter, 138 S. Ct. at 2264 (Gorsuch, J., dissenting).

Wilkes and Entick both addressed searches of papers authorized by general warrants rather than the

warrantless searches that the Department of Homeland Security now conducts at the border. But the

principal concern about general warrants—that they

gave government agents boundless discretion—applies with equal force to warrantless searches. Under

the “principles of common law,” “[i]t is not fit, that the

receiving or judging of the information [regarding

cause to search] should be left to the discretion of the

officer,” as opposed to a neutral magistrate “giv[ing]

certain directions to the officer.” Leach v. Money, 19

How. St. Tr. 1001, 1027 (K.B. 1765). If anything, warrantless searches represent an even more severe

affront to liberty than searches backed by unduly

broad warrants.

From its earliest Fourth Amendment cases, this

Court has also rejected any notion that the constitutional protections for papers vanish outside the home.

In a case involving the inspection of mail, this Court

explained that “[t]he constitutional guaranty of the

right of the people to be secure in their papers against

unreasonable searches and seizures extends to their

papers, thus closed against inspection, wherever they

may be.” Ex parte Jackson, 96 U.S. 727, 733 (1878)

(emphasis added). Such papers “can only be opened

and examined under like warrant . . . as is required

when papers are subjected to search in one’s own

household.” Id.; accord Olmstead v. United States,

277 U.S. 438, 464 (1928). And in Boyd, this Court embraced Wilkes and Entick in condemning a court order

requiring an importer to produce a customs invoice for

government inspection. 116 U.S. at 625-30. The

Fourth Amendment, this Court explained, prevents

warrantless “invasions” by the government of the “privacies of life,” even absent “the breaking of [a person’s]

doors” or “the rummaging of his drawers.” Id. at 630.

2. Despite the strong protection given papers at

the Founding, the government has persuaded the

lower courts that its agents may search papers,

printed and electronic alike, without a warrant at the

border. E.g., United States v. Seljan, 547 F.3d 993,

1002 (9th Cir. 2008) (en banc) (sealed letters); United

States v. Touset, 890 F.3d 1227, 1232-37 (11th Cir.

2018) (electronic devices). But the border-search exception has never extended beyond a search for contraband and dutiable items to, as here, the Entickstyle ransacking of private papers. Pet. 8-9.

The border-search exception traces its roots to the

Collection Act of 1789, ch. 5, 1 Stat. 29. There, the

First Congress gave customs officials “full power and

authority” to enter and search “any ship or vessel, in

which they shall have reason to suspect any goods,

wares or merchandise subject to duty shall be concealed.” § 24, 1 Stat. at 43. Congress also immunized

the officials from tort actions, but only to the extent

they acted “in virtue of the powers given by this act,

or by virtue of a warrant granted by any judge or justice.” § 27, 1 Stat. at 43-44. In the first case recognizing the border-search exception, this Court explained

that similar English statutes authorized the seizure

of “stolen goods” and “goods forfeited for a breach of

the revenue laws,” and it viewed the Collection Act as

further proof that the First Congress “did not regard

searches and seizures of this kind as ‘unreasonable.’”

Boyd, 116 U.S. at 623 & n.†. The Court since Boyd

has never identified any other historical support for

the border-search exception. E.g., United States v.

Ramsey, 431 U.S. 606, 616-17 (1977); see also Note,

The Border Search Muddle, 132 Harv. L. Rev. 2278,

2289-90 (2019).

The Collection Act did not authorize customs officials to make sweeping, suspicionless searches of the

sort the federal government regularly conducts today.

Its plain terms permitted searches only when there

was “reason to suspect any goods, wares or merchandise subject to duty shall be concealed.” § 24, 1 Stat.

43. The statute therefore required reasonable suspicion not merely of crime generally, but of smuggling

in violation of the revenue laws. See United States v.

Molina-Isidoro, 884 F.3d 287, 295 & n.4 (5th Cir.

2018) (Costa, J., specially concurring). Yet private papers have never been “goods, wares or merchandise

subject to duty.” One early revenue statute, for

example, listed only “blank books,” and not written

materials or other private papers, among the dozens

of categories of dutiable items. Tariff Act of July 4,

1789, ch. 2, § 1, 1 Stat. 24, 24-26. Even today, the successor to the Collection Act requires customs officials

to have reason to “suspect there is merchandise which

is subject to duty, or shall have been introduced into

the United States in any manner contrary to law.” 19

U.S.C. § 482(a) (emphasis added).

The Collection Act’s focus on dutiable items tracks

its predecessor English laws. Parliament imposed

taxes on American imports, such as (notoriously) tea.

English agents enforced these laws by searching

ships’ cargo. Brady, The Lost “Effects” of the Fourth

Amendment: Giving Personal Property Due Protection,

125 Yale L.J. 946, 988-89 (2016). But Americans

loudly “criticized customs officers who searched ship

cabins to find personal food or liquor stores meant for

the ships’ crews.” Id. at 989. Personal papers aren’t

dutiable items either. So while a captain coming into

port would expect customs officials to inspect his imports, he would have been shocked if they leafed

through his log or demanded his first mate’s diary.

Every single border-search case decided by this

Court has involved searches for smuggled goods or

contraband. E.g., United States v. Flores-Montano,

541 U.S. 149, 155-56 (2004); Ramsey, 431 U.S. at 62425. And if history teaches us anything, it is that there

is a world of difference between contraband and private papers. This Court has said as much, explaining

in Boyd that “[t]he search for and seizure of stolen or

forfeited goods, or goods liable to duties and concealed

to avoid the payment thereof, are totally different

things from a search for and seizure of a man’s private

books and papers for the purpose of obtaining

information therein contained.” 116 U.S. at 623. This

Court thus rejected the indiscriminate search and seizure of private papers, as distinct from the search for

and seizure of goods that might be contraband.

This Court drew this same distinction between potential contraband and private papers in later cases.

In Carroll, for example, it distinguished the seizure of

goods that might be contraband from the seizure of

private papers that have no intrinsic (or taxable)

value. 267 U.S. at 147-49. The nature of the goods at

issue in Carroll—bottles of (then-prohibited) liquor—

made that case different from prior cases protecting

personal papers from disclosure. Id. This Court has

since underscored that the purpose of the bordersearch exception is not to rummage through private

papers, but “to regulate the collection of duties and to

prevent the introduction of contraband.” United

States v. Montoya de Hernandez, 473 U.S. 531, 537

(1985). The Court has never approved the warrantless search and seizure of private papers, rather than

dutiable items or contraband, absent exigent circumstances.

In fact, the only time this Court confronted the intersection of border searches and papers, it took pains

to distinguish searches of envelopes for contraband

from searches of the papers contained within the envelopes. This Court held in Ramsey that the bordersearch exception allowed customs officials to search

envelopes for heroin as “‘necessary to prevent smuggling and to prevent prohibited articles from entry.’”

431 U.S. at 619. At the same time, this Court noted

that the applicable statute and regulation allowed officials to open letters only when they “have reason to

believe they contain other than correspondence, while

the reading of any correspondence inside the

envelopes is forbidden” without a warrant. Id. at 62324. Justice Powell joined the majority opinion only on

the understanding that the decision did “not go beyond the validity of mail searches at the border pursuant to the statute” allowing contraband searches.

Id. at 625 (concurring opinion).

The historical record could hardly be more onesided. This Court’s earliest Fourth Amendment precedent, like the English authorities from which it drew,

recognized that private papers are entitled to the

greatest measure of constitutional protection. And

nothing in the history of the border-search exception,

which consistently recognized only the government’s

ability to search for smuggled goods or contraband,

suggests any right of the government to seize and examine a traveler’s most private papers.

B. This Court’s Precedent Confirms That

Warrantless Cell-Phone Searches Violate the Fourth Amendment.

This Court’s case law on these points is in accord.

In Riley, this Court held that warrantless searches of

cell phones and the extensive information they contain raise unique Fourth Amendment concerns that

do not yield simply because an exception to the warrant requirement is in play. The logic of Riley and

similar cases establishes that warrantless searches of

cell phones at the border generally violate the Fourth

Amendment’s core protections.

1. Riley presented the question whether officers

could search digital information on an arrestee’s cell

phone. 573 U.S. at 378. The government defended

such searches by invoking the historical exception to

the warrant requirement for searches incident to

arrests. Id. at 382. The Court rejected that argument—and its reasons for doing so should resolve this

case.

The Court explained that where Founding-era

history leaves room for doubt about whether an investigative practice comports with the Fourth Amendment, courts must assess “the degree to which [the

practice] intrudes upon an individual’s privacy” and

“the degree to which it is needed for the promotion of

legitimate governmental interests.” Riley, 573 U.S. at

385. Applying that framework, Riley held that the

government could not use the search-incident-to-arrest exception as a free pass to examine the digital

contents of arrestees’ cell phones without a warrant.

The Court recognized that, “in both a quantitative

and a qualitative sense,” cell phones “implicate privacy concerns far beyond those implicated by” any

other items that may be found in an arrestee’s pocket.

Riley, 573 U.S. at 393. Even in 2014, cell phones were

more properly labeled “minicomputers” of “immense

storage capacity,” capable of holding a dizzying variety of messages, pictures, and records. Id. at 393-94.

The “many distinct types of information” that

smartphones contain implicate fundamental privacy

interests not just because of what they reveal directly,

but also because of what they “reveal . . . in combination,” allowing “[t]he sum of an individual’s private

life” to be easily “reconstructed.” Id. at 394.

Even more troubling from a privacy perspective

was that the government would be able to secure this

windfall with practically every arrest. The centrality

of cell phones to modern life means that people cannot

realistically decline to “carry a cache of sensitive personal information with them as they [go] about their

day” in the way they could previously leave medical

records, love letters, club memberships, photo albums,

and other private papers at home. Riley, 573 U.S. at

395-96. As this Court put it, cell phones “are now such

a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an

important feature of human anatomy.” Id. at 385.

The choice to carry a phone containing one’s most private thoughts and communications is no choice at all.

This Court had no trouble mapping these privacy

interests onto Fourth Amendment doctrine. Compared to traditional searches incident to arrest, cellphone searches are immeasurably more invasive,

“typically expos[ing] to the government far more than

the most exhaustive search of a house.” Riley, 573

U.S. at 396.

Moreover, those privacy interests do not “fall[] out

of the picture” merely because “an arrestee has diminished privacy interests.” Riley, 573 U.S. at 392. “To

the contrary, when ‘privacy-related concerns are

weighty enough’ a ‘search may require a warrant, notwithstanding [such] diminished expectations of privacy.’ ” Id. And when it comes to cell phones, the privacy interests at stake “dwarf those” in its prior cases

permitting officers to examine the contents of arrestees’ pockets. Id. at 398.

Finally, the Court reasoned that the interests on

the government’s side, though valid, could not overcome the incomparable privacy interests implicated

by cell-phone searches. When it came to officer safety,

the balance the Court’s search-incident-to-arrest

cases struck “in the context of physical objects” made

little sense “with respect to digital content on cell

phones”: although officers “remain free to examine

the physical aspects of a phone” for “potential physical

threats,” “data on the phone can endanger no one.”

Riley, 573 U.S. at 386-87. And as for evidence preservation, the Court explained that the government’s

concerns were overstated and capable of being addressed in more targeted ways. Those interests did

not “justify dispensing with the warrant requirement

across the board,” but rather would be “better addressed through consideration of case-specific exceptions to the warrant requirement, such as the one for

exigent circumstances.” Id. at 388.

2. Riley makes clear that warrantless searches

and seizures of cell phones are generally unlawful

even when performed at the border. The privacy interests implicated by cell-phone searches are even

more substantial today than when Riley was decided,

and the interests underlying the border-search exception cannot justify such dramatic government invasions of private papers.

a. Riley recognized that advancements in cellphone technology would “only continue . . . in the future.” 573 U.S. at 385, 394. In the near-decade since,

the growth in the amount and variety of information

a cell-phone search can uncover has proved that prediction true. American created 13 times as much mobile data in 2021 (53.4 trillion megabytes) as in 2014

(4.1 trillion). Richter, Americans Keep Calling and

Texting as Data Use Explodes, Statista (Apr. 3, 2023),

https://tinyurl.com/37kh7etn. Smartphone ownership

has grown, too, rising from about 50% of the adult population in 2014 to 85% in 2021. Mobile Fact Sheet, Pew

Rsch. Ctr. (Apr. 7, 2021), https://tinyurl.com/4yprs4v3.

And experts predict still further growth in mobile data

traffic in the coming years. Mobile Data Traffic Outlook, Ericsson, https://tinyurl.com/mpezskan (accessed Sept. 27, 2023).

As before, this growth is not merely quantitative.

The types of information that can be gleaned from a

person’s cell phone have continued to expand, particularly as mobile apps have displaced traditional web

browsers. Dolan, How Mobile Users Spend Their Time

on Their Smartphones in 2023, Insider Intel. (Jan. 14,

2023), https://tinyurl.com/yw8bmh2f. Gone are the

days when cell phones were tools merely for talking,

texting, and taking pictures. Today, they are how people shop, bank, invest, consume media, seek medical

attention, consult mental-health professionals, read

the news, plan trips, look for work, pay their bills, hire

help, and search for romance. Leading Smartphone

Users Activities Worldwide from July 2022 to June

2023, Statista, https://tinyurl.com/vfxbkpz (accessed

Sept. 27, 2023). That makes the smartphone in a person’s pocket a portal into virtually every aspect of

what this Court has called “the privacies of life.” Riley, 573 U.S. at 403 (quoting Boyd, 116 U.S. at 630).

Another of this Court’s recent cases illustrates the

effects of this dramatic ongoing growth in cell-phone

usage. When this Court decided Carpenter in 2018,

there were “396 million cell phone service accounts”

for “a Nation of 326 million people.” 138 S. Ct. at 2211.

The issue there was the government’s collection of extensive cell-site records that gave it an “all-encompassing record of the holder’s whereabouts.” Id. at

2214, 2217. In holding that such pervasive access constituted the sort of “too permeating police surveillance” that the Fourth Amendment forbids without a

warrant, id. at 2214 (quoting United States v. Di Re,

332 U.S. 581, 595 (1948)), this Court explained that

permitting warrantless access to weeks of cell-site

data would permit government officials to reconstruct

a suspect’s movement “into private residences,

doctor’s offices, political headquarters,” and other

places that are “potentially revealing,” id. at 2218.

The concerns implicated by searches of the digital

contents of cell phones are graver still. By sweeping

the contents of a cell phone, the government can determine not just where a suspect has been, but what

he did and said there; not just who a person’s doctor

is, but the medical issues motivating his visits; not

just which political party of which the suspect is a

member, but what he thinks of the party’s leadership.

The Fourth Amendment does not permit such “an unrestrained search for evidence of criminal activity.”

Riley, 573 U.S. at 403.

And just as it did in Riley, the uniquely “pervasive

and insistent” role of cell phones in today’s world, 573

U.S. at 385, counsels firmly against permitting warrantless cell-phone searches of everyone at the Nation’s borders. It is not a realistic option for travelers

to leave their cell phones at home. (In fact, the typical

air traveler these days uses his phone to download

and display his boarding pass.) So if warrantless

searches of cell phones at the border were permitted,

the price of traveling would be giving the government

essentially complete access to every aspect of private

life. Worse, modern technology allows agents at the

border to quickly scan and retain all of the data on a

cell phone, e.g., Pet. 9, meaning agents can in a matter

of moments obtain enough evidence to, “in combination,” reconstruct a person’s whole private being, Riley, 573 U.S. at 394. This Court has always steadfastly declined to leave people so “at the mercy of advancing technology.” Carpenter, 138 S. Ct. at 2214

(quoting Kyllo v. United States, 533 U.S. 27, 35

(2001)). Border searches should be no exception.

To be sure, “the expectation of privacy is less at

the border than in the interior.” Alasaad v. Mayorkas,

988 F.3d 8, 16-17 (1st Cir. 2021) (cleaned up). But the

same principle underlies the search-incident-to-arrest

exception. Warrantless searches of an arrestee “are

justified in part by ‘reduced expectations of privacy

caused by the arrest.’” Riley, 573 U.S. at 392. And as

Riley explained, the fact of “diminished privacy interests does not mean that the Fourth Amendment falls

out of the picture entirely”; a warrant may still be required whenever “privacy-related concerns are

weighty enough.” Id.

b. Here, as in Riley, the government interests underlying the exception do not categorically override

the grave privacy concerns implicated by warrantless

cell-phone searches. And, again as in Riley, those interests would be better addressed, as needed, through

case-specific exceptions to the warrant requirement.

Border searches are permitted so that agents can

determine whether travelers are “entitled to come in”

and assess whether their “belongings [are] effects

which may be lawfully brought in.” Carroll, 267 U.S.

at 154. That is why officers “remain free to examine

the physical aspects of a phone” at the border just as

when searching an arrestee. Riley, 573 U.S. at 387.

But the same conclusion cannot hold for “digital data”

on a smartphone. Id. at 393. General interests in

“protecting national security” or “disrupting efforts to

export or import contraband,” United States v.

Aigbekaen, 943 F.3d 713, 721 (4th Cir. 2019), can no

more justify untethered searches through the vast

universe of private cell-phone data than the general

interest in preventing crime could permit “officers to

rummage through homes in an unrestrained search

for evidence of criminal activity,” Riley, 573 U.S. at

403. Any other rule would subvert individual liberty,

subject travelers to unprecedented prying from public

officials, and defy the core principles underlying the

Fourth Amendment.

II. Review Should Be Granted Now.

Searches of electronic devices carried by international travelers are extremely common. Customs and

Border Protection reports that its officers have conducted 227,135 such searches since 2018. CBP Enforcement Statistics Fiscal Year 2023: Border Searches

of Electronic Devices, U.S. Customs & Border Prot.,

https://tinyurl.com/4f8asnbt (accessed Sept. 27, 2023).

And those searches are virtually limitless in their potential scope: CBP encourages its agents to search

not only all “of the information stored on the device,”

but also whatever information is “accessible through

the device’s operating system or through other software, tools, or applications.” U.S. Customs & Border

Prot., CBP Directive No. 3340-049A, Border Search

of Electronic Devices ¶ 5.1.2 (2018), https://tinyurl.com/3bbn5at6.

Cases involving challenges to the constitutionality of those searches are also extremely common. In

some cases, defendants caught at the border carrying

evidence of a crime on their phones seek to suppress

that evidence and, later, overturn their convictions; in

others, like this one, innocent travelers sue government officials for warrantless snooping. At least

seven circuits have now issued decisions addressing

under what circumstances electronic devices are subject to search at the border. See Pet. 13-24.

The decisions are remarkably fractured. Some

circuits have adopted the government’s maximalist

position, holding that border searches are always

reasonable even if the government lacks reasonable

suspicion. E.g., United States v. Touset, 890 F.3d

1227, 1231 (11th Cir. 2018). Others have held that

border agents may always conduct “manual” searches

(thumbing through the digital contents of an unlocked

phone) but need reasonable suspicion for “forensic”

searches (copying all the data from the phone and

thoroughly searching it using a computer). United

States v. Cano, 934 F.3d 1002, 1016 (9th Cir. 2019);

see United States v. Xiang, 67 F.4th 895, 901 (8th Cir.

2023) (suggesting constitutional difference between

manual and forensic searches). Some circuits have

also reasoned that all searches, “whether manual or

forensic, must be limited in scope to a search for digital contraband,” Cano, 934 F.3d at 1007; others have

instead required “some nexus to . . . protecting national security, collecting duties, blocking the entry of

unwanted persons, or disrupting efforts to export or

import contraband,” United States v. Aigbekaen, 943

F.3d 713, 721 (4th Cir. 2019) (emphasis added); and

still others have rejected the need for any such nexus,

United States v. Williams, 942 F.3d 1187, 1191 (10th

Cir. 2019). Given the depth and variety of these conflicts, there is no chance the lower courts will coalesce

around a single rule.

As a result, what should be a uniform national

policy delineating the government’s border-search

powers is instead a fractured system of arbitrary geography. A journalist crossing the border to Mexico in

Douglas, Arizona (in the Ninth Circuit) has fundamentally different rights than one crossing in nearby

Antelope Wells, New Mexico (in the Tenth). And a

study-abroad student returning to the United States

will have different rights depending on whether his

connecting flight lands at Reagan (in the Fourth Circuit) or Logan (in the First).

This Court’s review is also needed because the

lower courts have persistently focused on the wrong

issues. Their central preoccupation appears to be the

distinction between manual and forensic searches.

But that distinction is not grounded in the historical

purposes of the Fourth Amendment’s protection of private papers. It is also incompatible with Riley, where

this Court rejected the government’s fallback position

that officers should be able to perform limited

searches of cell phones whenever they arrest a person.

573 U.S. at 399-400. Simply put, the Fourth Amendment’s protections are not conditional or limited;

there is no warrant exception for a quick rummaging,

as opposed to a thorough examination.

The lower courts also have lost sight of the fact

that these cases are about papers. The conclusion that

cell phones deserve little or no protection at the border

often rests on a comparison to run-of-the-mill property—say, “a backpack,” Xiang, 67 F.4th at 902, or “a

recreational vehicle filled with personal effects,”

Touset, 890 F.3d at 1233. As the Eleventh Circuit put

it, “[a] forensic search of an electronic device is not like

a strip search or an x-ray”; it’s just “a search of property.” Id. at 1234. But the point of Riley is that a cellphone search is so much more. Cell phones carry far

more information—and far more revealing information—than traditional physical objects, and

searching them therefore threatens privacy rights in

a way that searching luggage, a gas tank, or even a

person does not. United States v. Vergara, 884 F.3d

1309, 1315-16 (11th Cir. 2018) (J. Pryor, J., dissenting).

The Court should address this important and frequently litigated issue now. The courts of appeals will

not come to a consistent and correct answer on their

own; not only are they deeply divided, but they also

have been looking for guidance in all the wrong places.

At this point, the only path forward—to alleviate the

lower courts’ confusion, establish an administrable

rule, and protect travelers’ constitutional rights—is

for this Court to grant review and set forth a uniform

rule that applies at all ports of entry and reflects the

inescapable facts that the Constitution provides special protection to papers and that, unlike in the rest of

human history, just about everyone now travels with

all of his papers at all times.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.