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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 25-4239
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSE ALEJANDRO BELMONTE CARDOZO, a/k/a Jose Belmonte,
Defendant – Appellant.
------------------------------KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY;
REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; AMERICAN
CIVIL LIBERTIES UNION; ELECTRONIC FRONTIER FOUNDATION;
NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; ACLU OF
MARYLAND; ACLU OF NORTH CAROLINA; ACLU OF SOUTH CAROLINA;
ACLU OF VIRGINIA,
Amici Supporting Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Leonie M. Brinkema, District Judge. (1:24-cr-00125-LMB-1)
Argued: May 8, 2026 Decided: July 13, 2026
Before DIAZ, Chief Judge, and AGEE and QUATTLEBAUM, Circuit Judges.
Affirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Chief
Judge Diaz and Judge Agee joined.
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ARGUED: Todd M. Richman, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. James Reed Sawyers, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Geremy C.
Kamens, Federal Public Defender, Salvatore M. Mancina, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant. Todd W. Blanche, Deputy Attorney General, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Lindsey Halligan, United States
Attorney and Special Attorney, Lauren Halper, Assistant United States Attorney,
Jacqueline R. Bechara, Assistant United States Attorney, Alexandria, Virginia, Robert K.
McBride, First Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee. Bruce D. Brown, Gabriel Rottman,
Grayson Clary, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS,
Washington, D.C.; Stephanie Krent, Raya Koreh, Scott B. Wilkens, Alex Abdo, Jameel
Jaffer, Knight First Amendment Institute, COLUMBIA UNIVERSITY, New York, New
York, for Amici The Knight First Amendment Institute at Columbia University and
Reporters Committee for Freedom of the Press. Michael W. Price, Washington, D.C.,
Elizabeth Franklin-Best, NATIONAL ASSOCIATION OF CRIMINAL DEFENSE
LAWYERS, Columbia, South Carolina; Nathan Freed Wessler, Esha Bhandari,
AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York; Sophia
Cope, ELECTRONIC FRONTIER FOUNDATION, San Francisco, California; Eden B.
Heilman, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA,
Richmond, Virginia; Kristi L. Graunke, ACLU OF NORTH CAROLINA LEGAL
FOUNDATION, Raleigh, North Carolina; David Rocah, AMERICAN CIVIL LIBERTIES
UNION OF MARYLAND FOUNDATION, Baltimore, Maryland; Allen Chaney,
AMERICAN CIVIL LIBERTIES UNION OF SOUTH CAROLINA FOUNDATION,
Columbia, South Carolina, for Amici American Civil Liberties Union, Electronic Frontier
Foundation, National Association of Criminal Defense Lawyers, ACLU of Maryland,
ACLU of North Carolina, ACLU of South Carolina, and ACLU of Virginia.
2
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QUATTLEBAUM, Circuit Judge:
Border searches do not require a warrant to be reasonable. And if a border search is
routine, individualized suspicion is not required either. But law enforcement may not
conduct a nonroutine border search without individualized suspicion. Under our precedent,
forensic searches of cell phones are nonroutine. But what about manual searches? Today,
we join all our sister circuits that have addressed this issue in holding that manual searches
of cell phones at the border are routine and thus do not require individualized suspicion.
I.
On May 8, 2024, Jose Belmonte Cardozo traveled from Bolivia to the United States
and landed at Washington Dulles International Airport. Though he didn’t know it at the
time, U.S. Customs and Border Protection Port Intelligence Officer Sara Oliphant was
waiting for him.
When Belmonte Cardozo landed and presented himself for customs inspection, he
produced two iPhones. Officer Oliphant asked Belmonte Cardozo to unlock the phones,
and he complied. 1 She then opened the phones’ photo galleries and toggled to their hidden
galleries. 2 There, she found sexually explicit photos and videos of prepubescent girls. In
1
Belmonte Cardozo mentions in his opening brief that there’s an open question over
whether compelling a defendant to provide his passcode violates the Fifth Amendment. In
his reply brief, he clarifies he isn’t pursuing a Fifth Amendment claim. So, we decline to
address the question.
2
According to an expert affidavit Belmonte Cardozo attached to his motion to
suppress, iPhones give users the ability to store photos in a “hidden” folder within the
phone’s photo gallery. J.A. 110. Photos stored in the hidden folder only become visible
when a user opens his photo application, uses a pulldown menu to choose hidden folders,
3
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total, only about two minutes passed between Officer Oliphant taking possession of the
phones and her discovering the illicit images. After discovering this material, CBP officers
notified agents with the U.S. Department of Homeland Security, who arrived on the scene
and arrested Belmonte Cardozo.
Later, the arresting agent filed a criminal complaint in the United States District
Court for the Eastern District of Virginia, accusing Belmonte Cardozo of transporting child
pornography. Eventually, a federal grand jury in that district indicted Belmonte Cardozo
on five counts of sexual exploitation of a child in violation of 18 U.S.C. § 2251(a) and (e),
two counts of coercion and enticement of a minor to engage in illegal sexual activity in
violation of 18 U.S.C. § 2422(b), one count of transportation of child pornography in
violation of 18 U.S.C. § 2252(a)(1) and (b)(1), one count of receipt of child pornography
in violation of 18 U.S.C. § 2252(a)(2) and (b)(1) and one count of possession of child
pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2).
Belmonte Cardozo moved to suppress the evidence recovered from the search of his
cell phones. The district court held an evidentiary hearing, during which Officer Oliphant
testified on the reasons she was suspicious of Belmonte Cardozo. After that, she was crossexamined on those reasons. And, after hearing this evidence, the district court denied
and re-enters the phone’s passcode to see the contents of those folders. The expert opined
that “[t]hese folders are typically used for a person’s most private information—for
example, hidden folders can be used to keep backup copies of important documents in the
event that one loses one’s wallet or identification.” J.A. 110. Based on this description of
how the hidden folder works, we presume that Officer Oliphant was required to re-enter
Belmonte Cardozo’s passcode to unlock the hidden folders. The record is not entirely clear
on how this happened, but Officer Oliphant testified she believed she asked Belmonte
Cardozo to write down his passcode when she asked him to unlock the phones.
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Belmonte Cardozo’s motion to suppress from the bench. The court recognized that there
was an open question about whether some level of individualized suspicion was needed for
an officer to conduct a search of digital data on a cell phone at the border. However, it
determined that even if “some measure of individualized suspicion” is required, Officer
Oliphant had the requisite suspicion. J.A. 166. The court also commented that the search
only took “about two minutes.” J.A. 167. It added that, alternatively, Officer Oliphant acted
in good faith.
Belmonte Cardozo and the government then entered into a conditional plea
agreement pursuant to Federal Rule of Criminal Procedure 11(a)(2). Belmonte Cardozo
pled guilty to all counts in the indictment but preserved his right to pursue this appeal of
the denial of his motion to suppress. The district court accepted Belmonte Cardozo’s plea
and sentenced him to 18 years in prison, plus 25 years of supervised release.
This appeal, challenging the court’s denial of the motion to suppress, followed. 3
II.
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.” U.S.
Const. amend. IV. “As the text makes clear, the ultimate touchstone of the Fourth
Amendment is reasonableness.” Riley v. California, 573 U.S. 373, 381 (2014) (internal
quotation marks omitted) (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)).
3
We have jurisdiction under 28 U.S.C. § 1291. When examining the district court’s
denial of a motion to suppress, we review the district court’s legal conclusions de novo and
its factual findings for clear error, considering the evidence in the light most favorable to
the government. United States v. Aigbekaen, 943 F.3d 713, 719 (4th Cir. 2019).
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Reasonableness usually requires that law enforcement officers first obtain a warrant before
conducting a search or seizure. Id. at 382. “This usual requirement, however, is subject to
a number of exceptions.” 4 Birchfield v. North Dakota, 579 U.S. 438, 456 (2016).
“Absent more precise guidance from the founding era, we generally determine
whether to exempt a given type of search from the warrant requirement” by balancing the
privacy implications against the underlying rationale for the search. See Riley, 573 U.S. at
385. In other words, we “assess[], on the one hand, the degree to which [the given type of
search] intrudes upon an individual’s privacy and, on the other, the degree to which it is
needed for the promotion of legitimate governmental interests.’” Id. (quoting Wyoming v.
Houghton, 526 U.S. 295, 300 (1999)).
This case sits at the intersection of two Fourth Amendment principles. First,
individuals have heightened privacy expectations in their cell phones. Second, searches
conducted by law enforcement officers at the border have long been recognized as
reasonable under the Fourth Amendment. To decide how these principles fit together in
this appeal, we start by explaining how cell phone searches are analyzed in other contexts.
After that, we explore the rationale underlying the border search exception and how we
have previously applied that exception to searches of electronic devices. And from there,
we explain how these considerations come together to resolve this case.
When the government conducts a search without a warrant, it must prove by a
4
preponderance of the evidence that an exception applies. Aigbekaen, 943 F.3d at 719.
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A.
1.
In Riley, the Supreme Court considered “whether the police may, without a warrant,
search digital information on a cell phone seized from an individual who has been
arrested.” 573 U.S. at 378. The Court reasoned that “[c]ell phones differ in both a
quantitative and a qualitative sense from other objects that might be kept on an arrestee’s
person.” Id. at 393. That’s because cell phones have “immense storage capacity” and
contain vast amounts of information about an individual. Id. at 393–94. This information
is very personal, holding “for many Americans ‘the privacies of life.’” Id. at 403 (quoting
Boyd v. United States, 116 U.S. 616, 630 (1886)); see also Chatrie v. United States, No.
25-112, 609 U.S. ---, 2026 WL 1855568, at *4 (June 29, 2026) (acknowledging that “the
percentage of Americans who own smartphones has only increased” in the years since the
Supreme Court decided Riley).
The Court then weighed these privacy concerns against the traditional justifications
for permitting warrantless searches incident to arrest—officer safety and preventing
concealment or destruction of evidence. Riley, 573 U.S. at 386–98. In balancing these
interests, the Court determined neither of the justifications for a search incident to arrest
permitted the warrantless search of a cell phone. Id. at 387–91. It explained that “[d]igital
data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer
or to effectuate the arrestee’s escape.” Id. at 387. And it reasoned there’s no risk an arrestee
could delete incriminating data off a cell phone once the officers secure it away from the
arrestee’s person. Id. at 388.
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Thus, the Court concluded that a warrant is “generally required” before police can
search the digital information on cell phones after an arrest. Id. at 401. But it also pointed
out that “even though the search incident to arrest exception does not apply to cell phones,
other case-specific exceptions may still justify a warrantless search of a particular phone.”
Id. at 401–02.
2.
This case involves the border search exception to the warrant requirement, not the
search incident to arrest exception. Warrantless searches at the border are not inherently
“unreasonable” under the Fourth Amendment. See Boyd, 116 U.S. at 623. That’s because
of the “long-standing right of the sovereign to protect itself by stopping and examining
persons and property crossing into this country.” United States v. Ramsey, 431 U.S. 606,
616 (1977). Indeed, the same Congress that proposed the Fourth Amendment to the states
for ratification in 1789 also enacted our nation’s first customs statute, which gave customs
officials broad authority to board vessels suspected of transporting concealed goods. Id. at
616–17. Thus, “[s]ince the founding of our Republic, Congress has granted the Executive
plenary authority to conduct routine searches and seizures at the border, without probable
cause or a warrant, in order to regulate the collection of duties and to prevent the
introduction of contraband into this country.” United States v. Montoya de Hernandez, 473
U.S. 531, 537 (1985). In short, the government’s “paramount interest in protecting[] its
territorial integrity” by “preventing the entry of unwanted persons and effects is at its zenith
at the international border.” United States v. Flores-Montano, 541 U.S. 149, 152–53
(2004).
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What’s more, an individual’s privacy expectations at the border are less than they
would typically be in the interior. Montoya de Hernandez, 473 U.S. at 539–40. So, the
balance of these expectations against the government’s heightened interests at the border
justifies the border search exception. See id.; Flores-Montano, 541 U.S. at 152–54. And
the border search exception applies not only at the border but also at its “functional
equivalent,” such as an international airport. Almeida-Sanchez v. United States, 413 U.S.
266, 272–73 (1973).
Even so, there are limits to warrantless searches at the border. One limit depends on
whether the search is routine. United States v. Kolsuz, 890 F.3d 133, 138 (4th Cir. 2018).
Routine border searches are reasonable without individualized suspicion, but nonroutine
searches are reasonable only when justified based on some level of individualized
suspicion. Id. at 138, 146–47. Typically, this means border officials must have reasonable
suspicion, which in turn requires that “officials at the border . . . have a ‘particularized and
objective basis for suspecting the particular person’” of committing an offense. Montoya
de Hernandez, 473 U.S. at 541–42 (quoting United States v. Cortez, 449 U.S. 411, 417
(1981)). But see Kolsuz, 890 F.3d at 137 (declining to resolve whether a nonroutine forensic
cell phone search at the border must be supported by reasonable suspicion or probable
cause). 5 And that offense must “bear[] some nexus to the border search exception’s
5
We said in Kolsuz that something beyond reasonable suspicion might be required
to support nonroutine border searches of electronic devices, but we ultimately did not
decide that question. See 890 F.3d at 137. Even so, no circuit, including us, has ever “read
Riley to require more than reasonable suspicion to support even the most intrusive
electronics search at the border.” United States v. Mendez, 103 F.4th 1303, 1309 (7th Cir.
2024) (collecting cases).
9
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purposes of 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).
So, what’s a nonroutine search? The Supreme Court has suggested that “‘highly
intrusive searches’ that implicate especially significant ‘dignity and privacy interests,’ as
well as destructive searches of property and searches carried out in ‘particularly offensive’
manners” are nonroutine. Kolsuz, 890 F.3d at 138 (quoting Flores-Montano, 541 U.S. at
152, 154 & n.2). But the Court has never held that any search of someone’s property—as
opposed to an invasive search of someone’s person—is a nonroutine search. See FloresMontano, 541 U.S. at 155–56 (“While it may be true that some searches of property are so
destructive as to require [suspicion], this was not one of them.”); see also United States v.
Touset, 890 F.3d 1227, 1233 (11th Cir. 2018); Aigbekaen, 943 F.3d at 728 (Richardson, J.,
concurring). This suggests there’s a “high bar” to clear before a property search becomes
nonroutine. Aigbekaen, 943 F.3d at 728 (Richardson, J., concurring).
3.
With these principles in mind, we turn to searches of electronic devices at the border.
This is not our first occasion to address that issue.
In United States v. Ickes, 393 F.3d 501 (4th Cir. 2005), law enforcement stopped the
defendant, who was traveling across the Canadian border in his van. Id. at 502. During an
inspection, an officer found marijuana, a copy of an arrest warrant for the defendant and
albums containing child pornography. Id. at 503. The officer also confiscated the
defendant’s laptop computer and 75 disks containing child pornography. Id. Law
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enforcement searched the contents of the computer, and the defendant admitted it stored
child pornography. Id. The defendant argued the First Amendment carves out an exception
to the border search doctrine for “expressive material.” 6 Id. at 506. In addressing that issue,
we didn’t grapple with whether the search was a routine border inspection. See id. at 502.
Instead, we started from the premise—in other words, we basically assumed—that the
search was routine before rejecting the defendant’s First Amendment argument. See id. In
reaching that conclusion, we reasoned that the First Amendment does not prevent the
government from conducting warrantless border searches to further its important interest
in protecting the country from illicit material coming in. Id. at 505–07.
More recently, in Kolsuz, we held that forensic searches of cell phones at the border
are nonroutine and require “some measure of individualized suspicion.” 890 F.3d at 137.
In that case, a Turkish citizen was traveling home through Dulles. Id. at 138. When CBP
officers inspected his bags, they discovered firearms parts that could not be removed from
the United States without a license. Id. at 139. And the defendant admitted he did not have
such a license. Id. The officers moved the defendant to a secondary inspection area and
confiscated his iPhone. Id. They manually searched the phone by scrolling through the
defendant’s recent calls and text messages. Id. They then transported the phone to a facility
four miles from the airport, where they searched the phone forensically by attaching it to
data extracting equipment. Id. The forensic search lasted a full month and “yielded an 896-6
The defendant also argued the search exceeded the officer’s statutory authority. Id.
at 503–04. We rejected that argument, but our reasoning on that point is less relevant to
Belmonte Cardozo’s appeal. See id. at 505.
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page report that included [the defendant’s] personal contact lists, emails, messenger
conversations, photographs, videos, calendar, web browsing history, and call logs, along
with a history of [the defendant’s] physical location down to precise GPS coordinates.” Id.
The defendant moved to suppress the information uncovered in the forensic search
of his phone, but the district court denied that motion. Id. at 139–40. On appeal, the
defendant argued that, even under the border exception, “the forensic search of his phone
constituted a nonroutine border search unsupported by the type of reasonable suspicion
required to justify such searches.” 7 Id. at 144 (citation modified). We first determined that,
under Riley, “a forensic border search of a phone must be treated as nonroutine, permissible
only on a showing of individualized suspicion.” Id. That’s largely because the forensic
report on the defendant’s phone produced a tremendous amount of personal information.
Id. at 144–46. Next, we noted that “[n]onroutine searches are permitted under the border
exception, so long as they are accompanied by the appropriate level of individualized
suspicion.” Id. at 146–47. But rather than determining whether the officers had the
necessary level of suspicion, we affirmed the denial of the motion to suppress based on
good faith. Id. at 148. Even if the forensic search in fact required probable cause, we held
that “it was reasonable for the CBP officers who conducted the forensic analysis of [the
7
The defendant also argued the forensic search of his cell phone wasn’t covered by
the border exception at all because the search was conducted several miles from the airport,
over the course of a month and was not related to intercepting contraband that was in the
process of crossing international borders. Id. at 142–43. We rejected this argument because
“the link between the search of [the defendant’s] phone and the interest that justifies border
searches was sufficient to trigger the border exception on any account of a ‘nexus’
requirement,” as the officers were attempting to find evidence of his attempts to illegally
export firearms parts. Id. at 143.
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defendant’s] phone to rely on the established and uniform body of precedent allowing
warrantless border searches of digital devices that are based on at least reasonable
suspicion.” Id.
In reaching this decision, we distinguished Ickes. In a footnote, we reasoned that
“Ickes approved a manual, on-site inspection of computer contents that would be accessible
to any user, and did not address the use of the sophisticated forensic search methods at
issue [in Kolsuz].” Id. at 146 n.5. But because the defendant did “not challenge the initial
manual search of his phone at Dulles, we ha[d] no occasion [t]here to consider whether
Riley calls into question the permissibility of suspicionless manual searches of digital
devices at the border.” Id.
B.
Finally, with that background, we come to the question left open by Kolsuz and
presented by this appeal—are manual cell phone searches at the border routine or
nonroutine?
Belmonte Cardozo argues they are nonroutine. He relies primarily on the privacy
interests inherent in cell phones that Riley and Kolsuz identified. According to Belmonte
Cardozo, because of the advanced search features on modern iPhones, the level of privacy
intrusion in a manual search is essentially the same as in the nonroutine forensic search in
Kolsuz. For example, he points out that iPhones allow a user to type in keywords and will
produce images saved on the phone associated with those words and that users can search
for images of individual people and the phone will produce saved images of those people.
In addition, Belmonte Cardozo argues the government has less interest in searching digital
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data at the border than it does physical contraband. He contends that, because digital
contraband could enter the country through electronic means, there is no specific reason to
conduct a cell phone search to prevent digital contraband from crossing the border.
The government, in contrast, argues manual cell phone searches at the border are
routine. In fact, it insists Ickes compels that result. And Riley, the government adds, did not
abrogate Ickes.
Neither Belmonte Cardozo nor the government is right. As for the government’s
point, Ickes doesn’t control our decision here. It may be true that we effectively treated the
border search in Ickes as a routine search. See 393 F.3d at 502, 505–07 & n.1; see also
Kolsuz, 890 F.3d at 146 n.5. But we did so as a starting point before evaluating whether
the First Amendment places restrictions on routine border searches for expressive content.
See Ickes, 393 F.3d at 506–07. We never grappled with whether the search of an electronic
device at the border was routine or nonroutine. Thus, our assumption about that antecedent
proposition is not binding. See Payne v. Taslimi, 998 F.3d 648, 654 (4th Cir. 2021)
(“[W]here we ‘assum[e] without deciding the validity of antecedent propositions’ those
assumptions ‘are not binding in future cases that directly raise the questions.’” (second
alteration in original) (quoting United States v. Norman, 935 F.3d 232, 241 (4th Cir.
2019))).
We also disagree with Belmonte Cardozo’s argument about the government’s
interest in digital data at the border. Even if digital contraband can cross the border
electronically, that does not reduce the government’s interest in interdicting digital
contraband when it crosses the border on a smartphone or other device. See United States
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v. Nkongho, 107 F.4th 373, 381 (4th Cir. 2024) (recognizing the “critical” need for forensic
border searches in “preventing cross-border crime and the importation of
contraband . . . such as child pornography”); United States v. Cano, 934 F.3d 1002, 1014
(9th Cir. 2019) (“The contents may be digital when they are on the phone, but the
physicality of the phone itself and the possibility that the phone’s contents can be printed
or shared electronically gives border officials sufficient reason to inspect it at the border.”).
In such circumstances, the government retains its “paramount interest” in preventing
contraband from entering the country, which is “at its zenith at the international border.” 8
See Flores-Montano, 541 U.S. at 152–53.
And the privacy expectations one has in the digital contents of his or her cell phones
do not overcome the government’s interests. It is true that individuals have heightened
privacy interests in such information. See Riley, 573 U.S. at 393–98. And it is also true that
those very interests prompted us to find that forensic cell phone searches at the border are
nonroutine. See Kolsuz, 890 F.3d at 146. But for several reasons, manual searches are
different.
First, a person does the looking in a manual search, not a machine. See, e.g., id. at
139; Aigbekaen, 943 F.3d at 718 n.2. In a manual search, an officer opens the device, scrolls
through it and reads what any user would see. In a forensic search, an officer connects the
device to outside hardware or software, copies its contents and analyzes the copy.
Besides, the government has more than an interest in what enters the country; it
8
has an interest in who enters. Flores-Montano, 541 U.S. at 152 (“The Government’s
interest in preventing the entry of unwanted persons and effects is at its zenith at the
international border.” (emphasis added)).
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Second, the breadth of the searches is different. A manual search ends when the
officer’s time, patience and attention give out. A forensic search is comprehensive. The
outside tool sweeps the whole device. To illustrate this difference, recall that Officer
Oliphant searched Belmonte Cardozo’s phone for approximately two minutes before
uncovering the illicit images. In contrast, the forensic search in Kolsuz took a month and
produced close to 900 pages of information. See 890 F.3d at 139. Border officials simply
lack the time and manpower that it would take to manually search electronic devices in a
way that would recover the amount of information obtainable from forensic searches.
Third, a manual search sees only what a user can access on a device. A forensic
search recovers more—deleted files, cached fragments, location histories, system logs and
metadata the owner never knew he kept. As Belmonte Cardozo conceded at oral argument,
some forensic searches can produce information that has been deleted from a phone. Oral
Argument at 5:50–6:07. Thus, a forensic search exposes not just what an ordinary user
would consider to be the contents of a phone; it opens a window beyond. See Aigbekaen,
943 F.3d at 718 n.2 (observing that a cell phone forensic search is “‘a powerful tool’
capable of . . . ‘unlocking password-protected files, restoring deleted material, and
retrieving images viewed on websites’” (quoting United States v. Cotterman, 709 F.3d 952,
957 (9th Cir. 2013) (en banc)); see also Cotterman, 709 F.3d at 962–63 (drawing
distinction between forensic and manual searches of a laptop because the forensic search
“is akin to reading a diary line by line looking for mention of criminal activity—plus
looking at everything the writer may have erased”).
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And fourth, a manual search is subject to an officer’s fading memory or imperfect
notes. A forensic search is not—it creates a copy the government may be able to keep. Cf.
Carpenter v. United States, 585 U.S. 296, 312 (2018) (reasoning that, prior to the advent
of technology in modern cell phones, an officer’s personal effort to track a person’s
movement was “limited by a dearth of records and the frailties of recollection”). The copy
is a permanent, portable and searchable duplicate of the device. The government can carry
it from the border, study it at leisure and search it for keywords. A forensic search does not
end at the border crossing; it begins there.
Considering the differences in forensic and manual searches and balancing the
government’s interest in preventing contraband from entering the country at the border
with individuals’ privacy expectations in the data in their cell phones, we hold that manual
cell phone searches are routine border searches that do not require individualized suspicion.
The concerns particular to forensic searches identified in Kolsuz are not present here. And
the differences between manual and forensic searches compel a different result.
In reaching this conclusion, we have company. In fact, every one of our sister
circuits to have considered the issue has reached the same result. See United States v.
Mendez, 103 F.4th 1303, 1310 (7th Cir. 2024) (“We therefore agree with the consensus
among circuits that brief, manual searches of a traveler’s electronic device are ‘routine’
border searches requiring no individualized suspicion.”); United States v. Castillo, 70 F.4th
894, 898 (5th Cir. 2023) (“We see no reason to disagree with our sister circuits.
Accordingly, we hold that no reasonable suspicion is necessary to conduct the sort of
routine manual cell phone search at the border that occurred here.”); Alasaad v. Mayorkas,
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988 F.3d 8, 19 (1st Cir. 2021) (“We thus agree with the holdings of the Ninth and Eleventh
Circuits that basic border searches [of electronic devices] are routine searches and need not
be supported by reasonable suspicion.”); Cano, 934 F.3d at 1014 (“Accordingly, we hold
that manual searches of cell phones at the border are reasonable without individualized
suspicion, whereas the forensic examination of a cell phone requires a showing of
reasonable suspicion.”); Touset, 890 F.3d at 1233–35 (finding that the Fourth Amendment
does not require individualized suspicion to justify a forensic search of a cell phone at the
border and rejecting distinction between routine and nonroutine border searches of
property); see also United States v. Xiang, 67 F.4th 895, 899–900 (8th Cir. 2023)
(recognizing that “[n]o Circuit has held that the government must obtain a warrant to
conduct a routine border search of electronic devices”).
None of this is to say that there aren’t limits to manual searches. Were the
government to devote the manpower and time needed to conduct lengthy manual searches
in a way that would deprive an individual of their phone for extended periods of time, other
Fourth Amendment principles may come into play. For example, “a search which is
reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable
intensity and scope.” Terry v. Ohio, 392 U.S. 1, 18 (1968). But the facts of this case do not
test those limits. 9
9
The parties also dispute whether the facts known to Officer Oliphant supported
individualized suspicion and whether the good faith exception applies. Because we
ultimately find this search did not require individualized suspicion, we decline to address
whether the search was supported by individualized suspicion. That said, even if
individualized suspicion were required and even if Officer Oliphant did not have the
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III.
Because we find that manual searches of cell phones at the border are routine border
searches which don’t require individualized suspicion, the judgment of the district court is,
AFFIRMED.
requisite level of suspicion, suppression would still not be appropriate based on Officer
Oliphant’s good-faith reliance “on the established and uniform body of precedent” that
allows suspicionless manual searches of cell phones at the border. Kolsuz, 890 F.3d at 148.
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