Amicus Curiae Brief — George Anibowei, Petitioner v. Todd Blanche, Attorney General, et al.

Supreme Court briefSep 18, 2026

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No. 26-208

IN THE

Supreme Court of the United States

________________

GEORGE ANIBOWEI,

Petitioner,

TODD BLANCHE, ATTORNEY GENERAL, ET AL.,

Respondents.

________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

________________

BRIEF OF CONSTITUTIONAL ACCOUNTABILITY

CENTER AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

________________

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

BRIAN R. FRAZELLE

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1730 Rhode Island Ave. NW

Suite 1200

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

September 18, 2026

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ......................................................

ARGUMENT .........................................................

The Fourth Amendment Demands

Greater Protection for the Contents

of Electronic Devices than for Physical

Items ............................................................

A. Searches of personal papers were at

the core of the struggle that produced

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

B. Personal papers have historically

received heightened Fourth

Amendment protection .........................

Suspicionless Border Searches of Personal

Papers Stored on Electronic Devices Are

Constitutionally Unreasonable ..................

A. Rules for combing through luggage are

not reasonable for reviewing the

contents of digital papers .....................

B. To keep the border search doctrine

tethered to its rationale, searches of

electronic devices must be limited to

detecting contraband ............................

CONCLUSION .....................................................

II.

(i)

TABLE OF AUTHORITIES

Page(s)

Cases

Abel v. United States,

362 U.S. 217 (1960) ...............................

Alasaad v. Mayorkas,

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

Andresen v. Maryland,

427 U.S. 463 (1976) ...............................

Arizona v. Gant,

556 U.S. 332 (2009) ...............................

14, 18

Boyd v. United States,

116 U.S. 616 (1886) ...........................

6, 9, 12

Carpenter v. United States,

585 U.S. 296 (2018) ...............................

Carroll v. United States,

267 U.S. 132 (1925) ...............................

City of Ontario v. Quon,

560 U.S. 746 (2010) ...............................

Commonwealth v. Dana,

43 Mass. 329 (1841) ..............................

Entick v. Carrington,

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

7, 21

Fisher v. United States,

425 U.S. 391 (1976) ...............................

13, 16

Gouled v. United States,

255 U.S. 298 (1921) ............................ 12, 19, 20

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

Grumon v. Raymond,

1 Conn. 40 (1814) ..................................

Kyllo v. United States,

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

Marron v. United States,

275 U.S. 192 (1927) ...............................

Nixon v. Adm’r of Gen. Servs.,

433 U.S. 425 (1977) ...............................

Okla. Press Pub. Co. v. Walling,

327 U.S. 186 (1946) ...............................

Riley v. California,

573 U.S. 373 (2014) ................ 4-6, 15, 16, 18-20

Schmerber v. California,

384 U.S. 757 (1966) ...............................

Sinclair v. United States,

279 U.S. 263 (1929) ...............................

Stanford v. Texas,

379 U.S. 476 (1965) ...............................

6, 7

Stanley v. Georgia,

394 U.S. 557 (1969) ...............................

United states v. Alisigwe,

No. 24-960 (2d Cir. Sept. 17, 2026) ......

United States v. Flores-Montano,

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

4, 14

TABLE OF AUTHORITIES – cont’d

Page(s)

United States v. Kirschenblatt,

16 F.2d 202 (2d Cir. 1926) ....................

United States v. Montoya de Hernandez,

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

14, 19

United States v. Ramsey,

431 U.S. 606 (1977) ............................... 2, 11, 15

United States v. Thirty-Seven (37)

Photographs,

402 U.S. 363 (1971) ...............................

Warden v. Hayden,

387 U.S. 294 (1967) ............................ 13, 19, 20

Weeks v. United States,

232 U.S. 383 (1914) ...............................

Wheeler v. United States,

226 U.S. 478 (1913) ...............................

Wilkes v. Wood,

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

6, 7

Wilson v. United States,

221 U.S. 361 (1911) ...............................

Statutes and Constitutional Provisions

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

Act of July 4, 1789, 1 Stat. 24 ..................

Act of July 31, 1789, 1 Stat. 29 ................

11, 20

TABLE OF AUTHORITIES – cont’d

Page(s)

Act of Aug. 4, 1790, 1 Stat. 145 ...............

Act of Feb. 4, 1815, 3 Stat. 195 ................

Act of Mar. 3, 1863, 12 Stat. 737 .............

Mass. Const. art. XIV (1780) ...................

N.H. Const. art. XIX (1784) .....................

Pa. Const. art. IX (1790) ..........................

Vt. Const. ch. I, art. XI (1777)..................

Books, Articles, and Other Authorities

18th Century Documents: 1700–1799,

Yale Law School Lillian Goldman Law

Library ...................................................

Craig M. Bradley, Constitutional

Protection for Private Papers, 16 Harv.

C.R.-C.L. L. Rev. 461 (1981) .................

3, 12

William J. Cuddihy, The Fourth

Amendment: Origins and Original

Meaning 602–1791 (2009) .....................

Thomas Y. Davies, Recovering the

Original Fourth Amendment, 98 Mich.

L. Rev. 547 (1999) .................................

Laura K. Donohue, The Original Fourth

Amendment, 83 U. Chi. L. Rev. 1181

(2016) .....................................................

TABLE OF AUTHORITIES – cont’d

Page(s)

Donald A. Dripps, “Dearest Property”:

Digital Evidence and the History of

Private “Papers” as Special Objects of

Search and Seizure, 103 J. Crim. L. &

Criminology 49 (2013) ............... 4, 6, 8, 9, 11, 17

Father of Candor, A Letter Concerning

Libels, Warrants and the Seizure of

Papers (5th ed. 1765) ............................

Father of Candor, A Postscript to the

Letter on Libels, Warrants, &c.

(2d ed. 1765) ..........................................

William Waller Hening, The New

Virginia Justice (1795) ..........................

Leonard W. Levy, Origins of the Fourth

Amendment, 114 Pol. Sci. Quarterly

79 (1999) ................................................

James A. McKenna, The Constitutional

Protection of Private Papers: The Role

of a Hierarchical Fourth Amendment,

53 Ind. L.J. 55 (1977) ............................

4, 17

James Otis, Against Writs of Assistance

(1761) .....................................................

16 Parl. Hist. Eng. 209 (1766) .................

Eric Schnapper, Unreasonable Searches

and Seizures of Papers, 71 Va. L. Rev.

869 (1985) .................................. 3, 4, 6, 7, 10, 17

vii

TABLE OF AUTHORITIES – cont’d

Page(s)

Steven H. Shiffrin, The Search and

Seizure of Private Papers: Fourth and

Fifth Amendment Considerations,

6 Loy. L.A. L. Rev. 274 (1973) ..............

13, 19

Zuinglius, For the Pennsylvania Gazette,

Pa. Gazette, Dec. 20, 1780 ....................

INTEREST OF AMICUS CURIAE1

Constitutional Accountability Center (CAC) is a

think tank and public interest law firm dedicated to

fulfilling the progressive promise of the Constitution’s

text and history. CAC works in our courts, through

our government, and with legal scholars to improve

understanding of the Constitution and preserve the

rights and freedoms it guarantees. CAC has a strong

interest in ensuring that the Constitution applies as

robustly as its text and history require and accordingly

has an interest in this case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Across large swaths of this country, an American

who takes an international trip “has no expectation of

privacy in anything he brings into the country,” including the highly personal contents of his cell phone. Slip

op. 23, United States v. Alisigwe, No. 24-960 (2d Cir.

Sept. 17, 2026) (emphasis added). Without a warrant,

probable cause, or even reasonable suspicion, “the government may review any material containing personal

information” in the traveler’s possession. Id. (emphasis added). Federal agents may exploit this limitless

search authority in a “pretextual” manner, id. at 30,

targeting particular people opportunistically at the behest of law enforcement agencies investigating matters that have nothing to do with border security, id.

None of this is hyperbole, but rather the express holdings of many courts of appeals. E.g., id.; see Pet. 9-11.

1 Counsel for all parties received notice at least 10 days prior to

the due date of amicus’s intention to file this brief. No counsel for

a party authored this brief in whole or in part, and no counsel,

party, or person other than amicus or its counsel made a monetary contribution intended to fund its preparation or submission.

Because the Fourth Amendment prohibits that

state of affairs, this Court should step in. And the

Court will rarely have a better opportunity than this

case, which presents the issue not in the context of a

criminal appeal, but rather in a setting more representative of how it affects the vast majority of Americans. In some parts of this nation—though not in others—federal agents have free rein to pore through the

photographs, videos, emails, text messages, voicemails, personal notes, and other private contents of a

person’s electronic devices any time that person leaves

or returns to the United States. Over 13,000 American

citizens are subjected to this indignity every year,

along with tens of thousands of noncitizens, see Pet.

22, and millions of travelers are vulnerable to it.

This Court’s precedent does not support the lower

court decisions that have enabled this state of affairs.

As applied by this Court, the border search doctrine

has always remained tied to its historical rationale,

the need “to prevent prohibited articles from entry.”

United States v. Ramsey, 431 U.S. 606, 619 (1977).

And the doctrine has further remained constrained by

the physical realities limiting the items carried by

travelers internationally. But decisions like the one

below have expanded that doctrine to enable something vastly different: trawling through the contents

of modern digital devices for the information they contain, allowing border agents to inspect whatever documents, images, and recordings they please.

Crucially, however, there is no historical tradition

of empowering border agents to examine the personal

papers of international travelers without a warrant,

much less to methodically scrutinize the massive trove

of digital papers that travelers now carry on their electronic devices. By exploiting border searches to rummage at will through the records stored on those

devices, the federal government is attempting to secure a power the Fourth Amendment was designed to

foreclose—the power to indiscriminately search and

seize the “papers” of the people.

“Protection of private papers from governmental

search and seizure is a principle that was recognized

in England well before our Constitution was framed,”

Craig M. Bradley, Constitutional Protection for Private

Papers, 16 Harv. C.R.-C.L. L. Rev. 461, 463 (1981), and

the Founders’ commitment to the security of personal

papers helped motivate the Fourth Amendment’s

adoption. Together with a rejection of “general warrants,” safeguarding private papers was one of the

twin pillars of the search-and-seizure doctrine that

emerged in eighteenth-century English common law—

a development celebrated by the American colonists

who were being subjected to oppressive searches by

British authorities. Under this emergent common law

rule, “[a] warrant to search for and to seize private papers . . . was considered illegal.” Laura K. Donohue,

The Original Fourth Amendment, 83 U. Chi. L. Rev.

1181, 1237 (2016). And one of the Fourth Amendment’s chief aims was to enshrine in America’s founding charter these common law protections, which safeguarded “two independent rights: a prohibition

against general warrants and a limitation on seizures

of papers.” Eric Schnapper, Unreasonable Searches

and Seizures of Papers, 71 Va. L. Rev. 869, 912 (1985).

Accordingly, the Fourth Amendment specifically

lists “papers” as protected from unreasonable search

and seizure—a choice reflecting the unique importance of papers as distinct from the “effects” covered separately by the text. Because “the Founders

understood the seizure of papers to be an outrageous

abuse distinct from general warrants,” they “regarded

papers as deserving greater protection than other

effects.” Donald A. Dripps, “Dearest Property”: Digital

Evidence and the History of Private “Papers” as Special

Objects of Search and Seizure, 103 J. Crim. L. & Criminology 49, 52, 99 (2013).

This Court traditionally recognized that personal

papers should enjoy special protection under the

Fourth Amendment. Indeed, “more than a dozen decisions over the course of a century reiterated that an

individual’s private papers were absolutely exempt

from seizure.” Schnapper, supra, at 869-70. Although

this Court eventually tempered that absolute rule, it

preserved the underlying principle that “private papers should be accorded special solicitude in fourth

amendment protection.” James A. McKenna, The Constitutional Protection of Private Papers: The Role of a

Hierarchical Fourth Amendment, 53 Ind. L.J. 55, 70

(1977). Thus, whenever a court must assess the reasonableness of a search or gauge its intrusion on “dignity and privacy interests,” United States v. FloresMontano, 541 U.S. 149, 152 (2004), fidelity to the

Fourth Amendment demands greater protection for

personal papers than for other objects.

Today, personal papers increasingly take the form

of digital files. Electronic devices now hold “in digital

form many sensitive records previously found in the

home.” Riley v. California, 573 U.S. 373, 396-97

(2014). A modern electronic device is a virtual library

of one’s digital papers—a vast archive of private writings and personal correspondence; financial, medical,

and educational records; personal photographs, videos, and voice recordings; and other materials that include “detailed information about all aspects of a person’s life.” Id. at 396. Consistent with the Fourth

Amendment’s special regard for private papers, the

authority to conduct routine border searches cannot

justify unfettered scrutiny into the contents of every

international traveler’s electronic devices.

Instead, “privacy-related concerns are weighty

enough” to require a warrant for searches of electronic

devices at the border, “notwithstanding the diminished expectations of privacy” there. Id. at 392 (quotation marks omitted). At a minimum, these searches

should require good reason to believe that a device contains digital contraband. Such a rule would ensure

that the border search doctrine remains tethered to its

historical purpose: “excluding illegal articles from the

country.” United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 376 (1971).

The time for putting off this issue has passed. This

Court’s intervention is needed to clarify that invading

someone’s digital library for the information it contains is fundamentally unlike combing through a suitcase for contraband. Petitioner’s case, which does not

arise from a suppression motion in a criminal prosecution, offers a rare opportunity to address that vital issue in a context resembling the majority of the tens of

thousands of warrantless electronic device searches

performed each year. This Court should take that opportunity and grant the petition for a writ of certiorari.

ARGUMENT

I. The Fourth Amendment Demands Greater

Protection for the Contents of Electronic

Devices than for Physical Items.

A. Searches of personal papers were at the

core of the struggle that produced the

Fourth Amendment.

The Fourth Amendment, which “is to be construed

in the light of what was deemed an unreasonable

search and seizure when it was adopted,” Kyllo v.

United States, 533 U.S. 27, 40 (2001), “was the founding generation’s response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era,” Riley, 573 U.S. at 403. Its terms were meant to embody

the principles established in a series of well-known

cases that involved “efforts by the English government

to apprehend the authors and publishers of allegedly

libelous publications.” Schnapper, supra, at 875-76.

Two of those decisions stand out: “the landmark

cases of Wilkes v. Wood and Entick v. Carrington,” in

which “the battle for individual liberty and privacy

was finally won.” Stanford v. Texas, 379 U.S. 476, 483

(1965). Those cases addressed “two distinct issues:

first, the validity of general warrants, and second, the

absolute immunity of certain property from search or

seizure.” Schnapper, supra, at 876. Both decisions

helped establish the privileged status of private papers

under the common law.

In 1763, an issue of John Wilkes’s radical newspaper The North Briton was deemed seditious libel by the

secretary of state, who issued a warrant to “seize and

arrest” everyone connected with it, “together with

their papers.” Dripps, supra, at 62. Under this general warrant, “Wilkes’ house was searched, and his papers were indiscriminately seized.” Boyd v. United

States, 116 U.S. 616, 626 (1886). Suing the perpetrators, Wilkes protested that his “papers had undergone

the inspection of very improper persons to examine his

private concerns,” and that “of all offences . . . a seizure

of papers was the least capable of reparation; that, for

other offences, an acknowledgement might make

amends; but that for the promulgation of our most private concerns, affairs of the most secret personal nature, no reparation whatsoever could be made.” Wilkes

v. Wood, 19 How. St. Tr. 1153, 1166, 1154 (C.P. 1763).

Upholding the verdict for Wilkes, the court declared

the general warrant authorizing the searches “contrary to the fundamental principles of the constitution.” Id. at 1167.

Wilkes’s fellow publisher John Entick endured similar treatment and also sued the culprits, leading to a

decision that was a “wellspring of the rights now protected by the Fourth Amendment.” Stanford, 379 U.S.

at 484. Unlike in Wilkes, the warrant at issue “named

Entick as the suspect whose possessions were to be

seized.” Schnapper, supra, at 881. But Entick maintained that no warrant could authorize seizing “all

[his] papers and books” without conviction of a crime,

objecting that the defendants “read over, pried into

and examined all [his] private papers, books, etc. . . .

whereby [his] secret affairs . . . became wrongfully discovered.” Entick v. Carrington, 19 How. St. Tr. 1029,

1030, 1064 (C.P. 1765).

Siding with Entick, the court held that this power

to search and seize “all the party’s papers” was unknown to English common law. Id. at 1064. As the

court explained, “[p]apers are the owner’s goods and

chattels: they are his dearest property; and are so far

from enduring a seizure, that they will hardly bear an

inspection.” Id. at 1066. And “where private papers

are removed . . . the secret nature of those goods will

be an aggravation of the trespass.” Id.

Thus, “the Entick court invalidated the seizure not

because the court regarded the underlying warrant as

a general warrant, but because the seizure violated the

distinct prohibition on seizures of papers.” Schnapper, supra, at 874. Indeed, the State Trials reporter

captioned Wilkes as “The Case of General Warrants”

and Entick as “The Case of Seizure of Papers.” 19

How. St. Tr. at 1029, 1153. Its annotation described

“the chief point adjudged” in Entick to be that “a warrant to search for and seize the papers of the accused,

in the case of a seditious libel, is contrary to law.” Id.

at 1029.

The government’s actions also ignited a fierce public debate, in which critics “condemned the distinct but

related evils of general warrants and warrants for papers.” Dripps, supra, at 61. The most widely circulated pamphlet argued both that general warrants

were illegal and that “a Particular, or any Warrant, for

seizing the papers, is likewise, as the law now stands,

good in no case whatever.” Father of Candor, A Letter

Concerning Libels, Warrants and the Seizure of Papers

77 (5th ed. 1765). Such warrants, it was said, would

subject all “correspondencies, friendships, papers and

studies” to “the will and pleasure” of the authorities.

Id. at 59. The debate subsided only after the House of

Commons issued resolutions pronouncing general

warrants unlawful and declaring, separately, that “the

seizing or taking away the papers, of . . . the supposed

author, printer, or publisher, of a libel, is illegal.” 16

Parl. Hist. Eng. 209 (1766). “Members of the House of

Commons recognized that while the use of general

warrants to detain people, or to recover seditious or libelous materials, was objectionable, it was even worse

to allow the Crown to trawl through an individual’s

private papers.” Donohue, supra, at 1218-19.

Accounts of the Wilkes cases “filled the columns of

American newspapers from Boston to Charleston,”

Leonard W. Levy, Origins of the Fourth Amendment,

114 Pol. Sci. Quarterly 79, 87 (1999), sparking an “intense” and “prolonged” reaction, William J. Cuddihy,

The Fourth Amendment: Origins and Original Meaning 602–1791, at 538 (2009). Entick’s case was “undoubtedly familiar” to “every American statesman,”

and its propositions “were in the minds of those who

framed the fourth amendment to the constitution, and

were considered as sufficiently explanatory of what

was meant by unreasonable searches and seizures.”

Boyd, 116 U.S. at 626-27.

After independence, protections against the search

and seizure of papers were woven into the fabric of

American law. Because the states generally adopted

English common law, “any judge or justice of the peace

considering issuing a warrant to seize papers who

looked up the law would learn that, under Entick, such

a warrant was unknown to the common law.”

Dripps, supra, at 75. Among the legal manuals published in the Founding era, “[n]one suggest[ed] common law authority to issue warrants for papers,” and

some expressly prohibited them. Id. at 76; see, e.g.,

William Waller Hening, The New Virginia Justice 404

(1795) (discussing the rule of Entick separately from

“the doctrine of general warrants”).

Indeed, only one known attempt was made to authorize the search and seizure of papers during this

period—a Pennsylvania bill that failed after it was attacked in the press as “contrary to common law.”

Dripps, supra, at 78; see Zuinglius, For the Pennsylvania Gazette, Pa. Gazette, Dec. 20, 1780 (“What punishment can be more dreadful . . . than to have [one’s] papers laid open to those who may come with a warrant

to inspect them. . . . Letters of business, letters of

friendship, notes, memorandums, containing the most

delicate particulars, are all laid open to view.”). Reflecting these sentiments, the constitutions of four

states expressly protected security in one’s “papers.”

Mass. Const. art. XIV (1780); N.H. Const. art. XIX

(1784); Pa. Const. art. IX, § 8 (1790); Vt. Const. ch. I,

art. XI (1777).

When the Constitutional Convention later sent its

proposal for a new federal charter to the states for ratification, many feared that this powerful national government would erode the common law protections

inherited from England. Antifederalists thus “extracted promises that the Constitution would be

amended to include a bill of rights,” including “protections against unreasonable searches and seizures.”

Schnapper, supra, at 914-15. The ratification messages of the key holdout states Virginia, New York,

and North Carolina all included the security of “papers” among the protections sought. See 18th Century

Documents: 1700–1799, Yale Law School Lillian Goldman Law Library, https://avalon.law.yale.edu/subject_menus/18th.asp (providing access to the state ratification messages).

Ultimately, as this Court has explained, the Fourth

Amendment reflected the Founders’ decision to

“secur[e] to the American people . . . those safeguards

which had grown up in England to protect the people

from . . . invasions of the home and privacy of the citizens, and the seizure of their private papers.” Weeks

v. United States, 232 U.S. 383, 390 (1914). The singling out of “papers” in the Fourth Amendment’s text

was no accident: safeguarding personal papers was an

essential part of what the Founders sought to achieve.

B. Personal papers have historically

received heightened Fourth Amendment

protection.

In the antebellum period, this Court rendered few

Fourth Amendment decisions, but state courts continued to embrace Entick. See Grumon v. Raymond,

1 Conn. 40, 45 (1814). As one court put it, “the right

to search for and seize private papers is unknown to

the common law.” Commonwealth v. Dana, 43 Mass.

329, 334 (1841). Significantly, too, early Congresses

never authorized the search or seizure of private papers—at the border or anywhere else.

The historical foundation for the border search doctrine is an early statute that permitted customs officers “to enter any ship or vessel, in which they shall

have reason to suspect any goods, wares or merchandise subject to duty shall be concealed,” and to search

for those items without a warrant. Act of July 31,

1789, § 24, 1 Stat. 29, 43. The enactment of this statute by the same Congress that proposed the Fourth

Amendment is the primary evidence of a traditional

border exception to the warrant requirement. See

Ramsey, 431 U.S. at 616. But critically, this statute

did not permit the seizure of papers—only “goods,

wares or merchandise,” a formulation repeated sixtythree times. And the earlier legislation specifying

which “goods, wares and merchandise” were subject to

import duties included no written materials among the

dozens of items listed. See Act of July 4, 1789, § 1, 1

Stat. 24; cf. id. at 26 (“all blank books” (emphasis

added)). A later statute permitted officers to inspect

ships’ manifests but no other records or papers. See

Act of Aug. 4, 1790, § 31, 1 Stat. 145, 164.

There is no historical tradition, therefore, of empowering customs agents to examine the personal papers of international travelers—only a tradition of

searching for and seizing impersonal goods lacking the

privacy interests that one’s papers were recognized to

implicate. And agents could employ that power only

when they had “reason to suspect” that prohibited

items were concealed onboard a ship. Act of July 31,

1789, § 24, 1 Stat. at 43.

Not until funding for the Civil War was imperiled

by a widespread evasion of duties did Congress enact

“[t]he first federal statute authorizing warrants to

seize papers.” Dripps, supra, at 85; see Act of Mar. 3,

1863, ch. 76, 12 Stat. 737. And it did not last. As modified, that law authorized courts to order the

production of “any business book, invoice, or paper”

that might “tend to prove any allegation made by the

United States” in forfeiture proceedings. Boyd, 116

U.S. at 619-20 (quoting statute). But this Court struck

the measure down, holding that “compelled seizures of

papers were categorically illegal.” Thomas Y. Davies,

Recovering the Original Fourth Amendment, 98 Mich.

L. Rev. 547, 728 n.514 (1999).

Drawing heavily on Entick, this Court described

the “settled” holding of that decision as “on[e] of the

landmarks of English liberty . . . . welcomed and applauded by the lovers of liberty in the colonies.” Boyd,

116 U.S. at 626. Under Entick, and thus under the

Fourth Amendment, the government could seek items

that were “liable to duties” or “unlawful” to possess,

but such efforts were “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.” Id. at 623-24.

For decades, Boyd remained “[t]he leading case” on

the Fourth Amendment, Carroll v. United States, 267

U.S. 132, 147 (1925), and so private papers continued

to be largely free from search and seizure. See Bradley, supra, at 461.2

Boyd’s holding was later broadened to shield all

private property sought by the government for its evidentiary value alone. See Gouled v. United States, 255

U.S. 298 (1921). Under this new rule, private papers

2 During that period, this Court approved the use of subpoenas

for “corporate records,” Wheeler v. United States, 226 U.S. 478,

490 (1913), but distinguished such requests from “compulsory

production of [one’s] private books and papers,” which were

“[u]ndoubtedly” protected, Wilson v. United States, 221 U.S. 361,

377 (1911); see Okla. Press Pub. Co. v. Walling, 327 U.S. 186, 208

(1946) (“corporate or other business records”).

became simply an “example” of the kinds of property

that could not be seized “merely for use as evidence.”

Abel v. United States, 362 U.S. 217, 234 (1960).

When this Court jettisoned that “mere evidence”

rule, it reconfirmed the distinction between personal

papers and other objects of search. In Schmerber v.

California, 384 U.S. 757 (1966), the Court approved a

blood-alcohol search carried out for evidence of intoxication, but it reached that result only by distinguishing cases that shielded “private papers.” Id. at 768.

In Warden v. Hayden, 387 U.S. 294 (1967), which

definitively rejected the mere evidence rule, this Court

again “was careful . . . to confine its holding to non-testimonial items.” Steven H. Shiffrin, The Search and

Seizure of Private Papers: Fourth and Fifth Amendment Considerations, 6 Loy. L.A. L. Rev. 274, 289

(1973). Emphasizing that the clothing at issue in Hayden was not “communicative” in nature, this Court left

open whether there are items “whose very nature precludes them from being the object of a reasonable

search and seizure.” 387 U.S. at 302-03; see Shiffrin,

supra, at 287 (“The actual holding of Warden was that

a man’s non-documentary effects could be seized during a lawful search to be used as evidence.”); see also,

e.g., Fisher v. United States, 425 U.S. 391, 401 n.7

(1976) (“Special problems of privacy which might be

presented by subpoena of a personal diary are not involved here.” (citation omitted)).

In short, constitutional text, history, and precedent

all demand heightened protection for personal papers

whenever courts are called upon to assess the reasonableness or intrusiveness of a search. This Court has

repeatedly highlighted the special protection that private papers enjoy under the Fourth Amendment and

has acknowledged the unique harms that occur when

their contents are exposed to the government. Those

principles hold true whether papers take the form of

physical documents or digital files.

II. Suspicionless Border Searches of Personal

Papers Stored on Electronic Devices Are

Constitutionally Unreasonable.

A. Rules for combing through luggage are

not reasonable for reviewing the

contents of digital papers.

Although “the Fourth Amendment’s balance of reasonableness is qualitatively different at the international border,” this Court has allowed suspicionless examinations of persons and property at the border only

within the scope of “routine” border searches. United

States v. Montoya de Hernandez, 473 U.S. 531, 541

(1985). Whatever else a “routine” border search may

cover, it cannot include inspecting a person’s entire library of digital papers. That broad power would “untether” the border search doctrine “from the justifications underlying” it and create “a serious and recurring threat to the privacy of countless individuals.”

Arizona v. Gant, 556 U.S. 332, 344-45, 343 (2009).

While this Court has identified some types of “nonroutine” border searches, see, e.g., Montoya de Hernandez, 473 U.S. at 541 & n.4, it has never implied that

there are no others. Nor has this Court said that

searches can unreasonably intrude on “dignity and privacy,” Flores-Montano, 541 U.S. at 152, only when

they involve searching a person’s body.

Most critically, this Court has never held that the

border search exception permits government officers

to examine the contents of personal papers. On the

contrary, when this Court sanctioned the warrantless

opening of internationally mailed envelopes, it repeatedly stressed that its holding would not allow officials

to read the contents of letters, but only to search for

drugs or other contraband hidden inside the envelopes.

As this Court noted, the statute authorizing these

searches required “reasonable cause” to believe that

customs laws were being violated “prior to the opening

of envelopes,” and “postal regulations flatly prohibit[ed], under all circumstances, the reading of correspondence absent a search warrant.” Ramsey, 431

U.S. at 623. That fact, reiterated numerous times, was

key.3 This Court reserved judgment on whether the

“full panoply of Fourth Amendment requirements”

would be needed “in the absence of the regulatory restrictions.” Id. at 624 n.18.

Even if border agents were allowed to read the limited number of physical papers carried by an international traveler, that would merely resemble police officers’ ability to examine an arrestee’s “billfold and address book,” “wallet,” or “purse.” Riley, 573 U.S. at

392-93. The intrusion on privacy would be cabined by

the “physical realities” limiting the range of paper documents that travelers carry. Id. at 393. But in light

of the “vast quantities of personal information” stored

on electronic devices, this Court has repudiated “mechanical application” of such traditional exemptions

from the warrant requirement to the digital world. Id.

at 386.

The possibility of finding some bank

3 See Ramsey, 431 U.S. at 624 (“envelopes are opened at the

border only when the customs officers have reason to believe they

contain other than correspondence, while the reading of any correspondence inside the envelopes is forbidden”); id. at 612 n.8

(denying that “the door will be open to the wholesale, secret examination of all incoming international letter mail” because “the

reading of letters is totally interdicted by regulation”); id. at 625

& n.* (Powell, J., concurring) (noting that “postal regulations

flatly prohibit the reading of ‘any correspondence,’” and joining

the holding “[o]n the understanding that the precedential effect

of today’s decision does not go beyond the validity of mail searches

. . . pursuant to the statute”).

statements in a piece of luggage “does not justify a

search of every bank statement from the last five

years,” and “the fact that a search in the pre-digital

era could have turned up a photograph or two . . . does

not justify a search of thousands of photos in a digital

gallery.” Id. at 400.

Simply put, unfettered power to browse through a

person’s entire library of digital papers—not to mention seize that library indefinitely and perform sophisticated computer searches of its contents—cannot be

crammed within the traditional border search exception. Nor can it be reconciled with the Fourth Amendment’s special regard for personal papers.

As explained above, see supra Part I, this Court has

recognized that an individual’s “right of personal security” demands “exemption of his private affairs, books,

and papers from the inspection and scrutiny of others.”

Sinclair v. United States, 279 U.S. 263, 292-93 (1929);

cf. Stanley v. Georgia, 394 U.S. 557, 565 (1969) (upholding a person’s “right to be free from state inquiry

into the contents of his library”). After all, “[a]n individual’s books and papers are generally little more

than an extension of his person,” Fisher, 425 U.S. at

420 (Brennan, J., concurring in the judgment),

whether in physical or digital form, see City of Ontario

v. Quon, 560 U.S. 746, 760 (2010) (“Cell phone and text

message communications are so pervasive that some

persons may consider them to be essential means or

necessary instruments for self-expression.”). That is

certainly true for “purely private materials, such as diaries, recordings of family conversations, [and] private

correspondence,” which represent far more than mere

“property.” Nixon v. Adm’r of Gen. Servs., 433 U.S.

425, 484 (1977) (White, J., concurring).

Moreover, “there are grave dangers inherent in . . .

a search and seizure of a person’s papers that are not

necessarily present in [a] search for physical objects

whose relevance is more easily ascertainable.” Andresen v. Maryland, 427 U.S. 463, 482 n.11 (1976). Because papers must be examined to be identified, the

authority to hunt for a particular type of record entails

a license to review all the records stored in the same

place, making it “certain” that “innocuous documents

will be examined.” Id. Inevitably, therefore, a search

of papers “partakes of the same generality characteristic of the sweeping exploratory searches” authorized

by general warrants. McKenna, supra, at 83. Such

dangers are present whenever government officers

may comb through papers in a suitcase or bag, but they

are magnified incalculably when those officers gain access to a person’s entire digital library.

These concerns date back to the Fourth Amendment’s origins. In the Wilkes controversy, critics “focused on the large volume of unrelated papers government officials read in their search for documents pertaining to North Briton No. 45.” Schnapper, supra, at

917. Opposition to seizing papers was propelled by

“the belief that any search of papers, even for a specific

criminal item, was a general search.” Dripps, supra,

at 104. An unlimited power to search digital papers at

the border, therefore, cannot be sanctioned simply because some papers may shed light on border-related

offenses. As one opponent of the Wilkes searches put

it: “Every private paper, according to this doctrine,

might be scrutinized by the examiner; for, without doing so, how could he determine whether something

could not be proved from thence?” Father of Candor,

A Postscript to the Letter on Libels, Warrants, &c. 18

(2d ed. 1765).

The “unbridled discretion to rummage at will”

through a person’s digital library thus “implicates the

central concern underlying the Fourth Amendment.”

Gant, 556 U.S. at 345. It is “a totally different thing to

search a man’s pockets and use against him what they

contain, from ransacking his house for everything

which may incriminate him.” Riley, 573 U.S. at 396

(quoting United States v. Kirschenblatt, 16 F.2d 202,

203 (2d Cir. 1926)).

Permitting an expansion of the border search doctrine to all the sensitive files stored on modern electronic devices requires ignoring the very “seismic

shifts in digital technology,” Carpenter v. United

States, 585 U.S. 296, 313 (2018), that the government

is eagerly exploiting by searching those devices. The

imperatives underlying the border search doctrine,

significant as they are, cannot justify giving federal

agents license to rummage at will through the digital

library of every person who crosses the border.

B. To keep the border search doctrine

tethered to its rationale, searches of

electronic devices must be limited to

detecting contraband.

For all the reasons discussed above, courts have

erred in stretching the border search doctrine to encompass the review of personal papers stored on electronic devices. Some courts have compounded that error by expanding the purposes for which agents may

conduct those warrantless searches. Instead of limiting border searches to their traditional function of discovering prohibited items, many courts permit federal

agents to freely access travelers’ digital libraries in order to investigate potential lawbreaking having nothing to do with border security.

Under the Fourth Amendment, however, these

searches must, at a minimum, be based on a reasonable belief that a particular device contains digital contraband. In rejecting that standard, some courts have

claimed that it would amount to reviving the discredited “mere evidence” rule. See Alasaad v. Mayorkas,

988 F.3d 8, 20 & n.13 (1st Cir. 2021). But that is

wrong: the contours and underpinnings of these two

rules are entirely different.

As recounted above, in the twentieth century this

Court transformed the Boyd decision—which had emphasized the unique status of private papers—into a

broader rule that focused more exclusively on ownership concepts. “Whereas Boyd would absolutely prohibit the seizure of private papers,” the “emphasis

shifted” in Gouled v. United States, which “refused to

place papers in a special category, holding rather that

seizure of any of an individual’s property merely for evidentiary purposes was constitutionally prohibited.”

Shiffrin, supra, at 278-79 (citing Gouled, 255 U.S. 298

(1921)). Ultimately, however, this “requirement of a

governmental property interest in the item to be

seized,” id. at 286, proved unworkable and generated

specious distinctions between “items of evidential

value only” and “the instrumentalities and means by

which a crime is committed,” Hayden, 387 U.S. at 300,

296. In repudiating that rule, this Court rejected

“[t]he premise that property interests control the right

of the Government to search and seize.” Id. at 304.

Restricting warrantless border searches to their

traditional function of discovering prohibited items

has nothing to do with the mere evidence rule. Instead, this important limit arises from the rationale

for the border search doctrine itself—the need “to regulate the collection of duties and to prevent the introduction of contraband into this country.” Montoya de

Hernandez, 473 U.S. at 537. This limit ensures that

the doctrine remains tethered to its justifying rationale. See Riley, 573 U.S. at 386.

After all, the 1789 customs statute on which the

border search doctrine rests did not permit officers to

search ships for general evidence of crime. Rather, it

allowed officers to search only those ships “in which

they shall have reason to suspect any goods, wares or

merchandise subject to duty shall be concealed.” Act

of July 31, 1789, § 24, 1 Stat. at 43. Congress imposed

the same restriction when it authorized warrantless

customs inspections at land borders. See Act of Feb. 4,

1815, ch. 31, § 2, 3 Stat. 195, 195 (permitting an officer

to search persons and vehicles “on which he shall suspect there are any goods, wares, or merchandise,

which are subject to duty, or which shall have been introduced into the United States in any manner contrary to law”). Enforcing these traditional limits on

the discretionary search power of border agents is

simply being faithful to the border search doctrine itself.

Moreover, because the mere evidence rule was

rooted in different concepts, its scope was entirely different. For instance, the mere evidence rule prohibited seizing certain types of items under any circumstances. See Gouled, 255 U.S. at 309. But enforcing

the traditional limits of the border search doctrine

simply requires officials to follow the normal Fourth

Amendment process—i.e., to “get a warrant,” Riley,

573 U.S. at 403—before conducting searches for reasons other than detecting contraband.

Likewise, the mere evidence rule permitted the

government to search for anything in which it ostensibly held an ownership interest, not just contraband

but also “the fruits of crime” and “instrumentalities

and means by which a crime is committed.” Hayden,

387 U.S. at 296; see Marron v. United States, 275 U.S.

192 (1927). That rule was the source of many of its

conceptual difficulties. But those concepts have no relevance to the constitutional limits on border searches.

No one can be “secure” in their digital “papers,”

U.S. Const. amend. IV, if law enforcement officers may

peruse them at will whenever someone takes an international trip. Because “no [person] whatsoever is privileged from this search,” Entick, 19 How. St. Tr. at

1065, this is “a power that places the liberty of every

man in the hands of every petty officer,” James Otis,

Against Writs of Assistance (1761). This Court should

not allow the decision below and those like it to stand.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

BRIAN R. FRAZELLE

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1730 Rhode Island Ave. NW

Suite 1200

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

September 18, 2026

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.