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Border Searches of Cellphones and Electronic Devices – A Discussion by the Fourth Circuit Court of Appeals

On Behalf of | Oct 10, 2020 | Border Searches


By Robert C. Bonsib, Esq. and Megan E. Coleman, Esq.

Attention federal practitioners! The Fourth Circuit opinion in United States of America v. Raymond Idemudia Aigbekaen, (decided November 21, 2019), in which the Court held that the warrantless forensic search of the defendant’s electronic devices which were seized at the border, (JFK International Airport), was a highly intrusive nonroutine search which had no nexus to the border search exception’s historical purposes and therefore was a violation of the defendant’s 4th Amendment rights. Because this case was the first to make such a holding, the Government in this case was saved by the good-faith exception to the exclusionary rule. However, the government, in future cases post-Aigbekaen, may not be able to rely upon “good-faith” arguments to save this type of border search.


In April, 2015, a minor alerted law enforcement officers that Aigbekaen and another man had trafficked her for sex in three mid-Atlantic states. As part of their investigation, when Aigbekaen returned to the United States from traveling abroad, the Government seized Aigbekaen’s MacBook Pro laptop, iPhone, and iPod and conducted warrantless forensic searches of the data on all three devices. Aigbekaen was subsequently charged with sex trafficking and related crimes. At the conclusion of a jury trial, he was convicted of these crimes.

Aigbekaen’s contention on appeal was that the warrantless forensic searches of his digital devices violated the 4th Amendment. The Government countered that the searches fell within the “border search” exception to the warrant requirement and that, in any event, suppression was not appropriate.

The Fourth Circuit agreed with Aigbekaen that the border search exception does not extend to the challenged searches, rendering them unconstitutional. However, the Court agreed with the Government that the good-faith exception to the exclusionary rule bars suppression and, therefore, the Court affirmed.


On April 12, 2015, a sixteen-year-old girl, “L.,” called 911 from a Homewood Suites hotel in Bel Air. L. reported that she had run away from home and was looking for help. An officer arrived on scene and L. disclosed that two men, one named Marcell Greene, and another of Nigerian ethnicity named “Raymond,” had transported her around Maryland, Virginia, Long Island, and New York; had posted ads of her on; and had trafficked her for sex. L. provided phone numbers for these men and identified Greene and Aigbekaen in hotel surveillance footage. L. also recognized images of herself from online prostitution ads. Homewood Suites records showed that Aigbekaen had rented L.’s hotel room. Officers searched the room and found used condoms.

Local law enforcement officers sent their case file to Homeland Security Investigations (HSI), an investigative arm of the U.S. Department of Homeland Security. HSI subpoenaed Verizon and Backpage. The companies’ responses confirmed that the phone number L. had provided belonged to Aigbekaen, and that this number was listed as a contact on the Backpage prostitution ads. The Backpage ads were linked to two Yahoo! email addresses, each of which contained portions of Aigbekaen’s name. Rental car and hotel records further showed that Aigbekaen had traveled to hotels in Maryland, Virginia, and Long Island.

HSI agents learned that Aigbekaen had left the country and was returning through John F. Kennedy International Airport. The agents asked U.S. Customs and Border Protection officers to seize any electronic media devices in Aigbekaen’s possession at the airport upon his return. On May 19, 2015, the officers, without warrants, seized Aigbekaen’s MacBook Pro laptop computer, iPhone, and iPod, and transported the devices to Baltimore, where an HSI agent created and reviewed a forensic image of each device. HSI did not return the devices to Aigbekaen until June 2, 2015.

A forensic search is capable of not only viewing data that the user has intentionally saved on a digital device, but also unlocking password-protected files, restoring deleted material, and retrieving images viewed on websites. The forensic search of the laptop revealed temporary backups of Facebook Messenger conversations between Aigbekaen and another user that related to sex trafficking.

A few months after the warrantless forensic searches, the Government secured and executed warrants for the same MacBook Pro and iPhone, Aigbekaen’s Facebook and Yahoo! accounts, his vehicle, five additional cell phones, his DNA, and Greene’s residence.

Aigbekaen was indicted on sex counts, all relating to interstate sex trafficking of L. and transportation of her for the purpose of prostitution. Prior to trial, Aigbekaen moved to suppress various pieces of evidence, including any evidence recovered from the May 2015 warrantless forensic searches.

At the suppression hearing, Aigbekaen argued that the forensic searches did not fall within the border search exception to the warrant requirement because “there has to be a point at which the nature of the government investigation is so separated and so divorced from anything related to the border” that the exception becomes inapplicable. Defense argued that the Government’s “general interest in enforcing [domestic] criminal laws” does not constitute an interest justifying “border searches.” The Government responded that, at the time of the forensic searches, it had reasonable suspicion both that Aigbekaen had trafficked L. for sex domestically and that he “might be bringing contraband in the form of child pornography into the country,” citing for the latter argument only an “allegation form the manager of the hotel where the victim was recovered.” The district court dismissed the Government’s child pornography argument as “a lot weaker” but held that under “the traditional border search analysis,” “the circumstances of where the property was and where the person was when the search occurred” “trump[ed]” any need to justify the specific search. As a result, the district court found that no warrants were required for the May 2015 searches. The district court further reasoned that if any individualized suspicion was needed to justify the “intrusive” forensic searches of Aigbekaen’s devices, the Government met this standard because HSI had “at least” reasonable suspicion, if not probable cause, that the warrantless searches would reveal evidence of domestic sex trafficking.

The Historic Rationale of the Border Search Exception

The 4th Amendment requires that governmental searches and seizures be reasonable. In most cases, this requires a warrant based on probable cause. Riley v. California, 573 U.S. 373, 382 (2014). Riley held that the search incident to arrest exception was inapplicable to modern cell phones. Aigbekaen argued that Riley renders the border search exception categorically inapplicable to modern cell phones and analogous digital devices. However, after Riley it has been held that law enforcement officers may conduct a warrantless forensic search of a cell phone under the border search exception where the officers possess sufficient individualized suspicion of transnational criminal activity. United States v. Kolsuz, 890 F.3d 133, 148 (4th Cir. 2018).

The border search exception recognizes the Government’s substantial sovereign interests in “protect[in]…territorial integrity” and national security, United States v. Flores-Montano, 541 U.S.149, 153 (2004); blocking “the entry of unwanted persons and effects,” id. at 152, and “prevent[ing] the introduction of contraband.” United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985). “At a border” or its “functional equivalent, like [an] international airport…government agents may conduct routine searches and seizures of persons and property without a warrant or any individualized suspicion.” Kolsuz, 890 F.3d at 137.

There are limits to the border search exception. Certain “highly intrusive searches” may qualify as “nonroutine” and require some level of individualized suspicion. Flores-Montano, 541 U.S. at 152 (citing Montoya de Hernandez, 473 U.S. at 541 n. 4). In Kolsuz, the Fourth Circuit held that “a forensic search of a digital phone must be treated as a nonroutine border search, requiring some form of individualized suspicion” even if not a warrant. Kolsuz, 890 F.3d at 145-46. The Supreme Court in Riley explained that “[m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated” by physical searched because cell phones and other modern digital devices feature “an element of pervasiveness” that distinguishes them from physical records since these devices have “immense storage capacity,” as well as cloud storage capabilities, and collect “in one place many distinct types of information…that reveal much more in combination than any isolated record.”. 573 U.S. at 393-97.

In this case, the Fourth Circuit first had to decide: “Does the border exception even apply to the May 2015 forensic cell phone searches?” The Supreme Court and the Fourth Circuit have repeatedly explained, “the scope of a warrant exception should be defined by its justifications.” Id. at 143 (citing Riley, 573 U.S. at 385-91); accord, e.g., Arizona v. Gant, 556 U.S. 332, 351 (2009).

Neither the Supreme Court nor the Fourth Circuit has ever authorized a warrantless border search unrelated to the sovereign interests underpinning the exception, let alone nonroutine, intrusive searches like those at issue in this case.

Kolsuz teaches that the Government may not “invoke[] the border exception on behalf of its generalized interest in law enforcement and combatting crime.” 890 F.3d at 143. To conduct an intrusive and nonroutine search under the border search exception, the Government must have individualized suspicion of an offense that bears some nexus to the border search exception’s purposes of protecting national security, collecting duties, blocking the entry of unwanted persons, or disrupting efforts to export or import contraband. Id. If a nonroutine search becomes too “attenuated” from these historic rationales, it “no longer [will] fall under” the exception, Kolsuz, 890 F.3d at 143, and in such circumstances, the search will be unconstitutional unless accompanied by a warrant or justified under a different exception to the warrant requirement.

The domestic sex trafficking had no transnational component and,therefore, the warrantless search lacked the requisite nexus to the historic rationales justifying the border search exception.

The Fourth Circuit applied the afore-mentioned principles to the facts at hand and concluded that the warrantless forensic search of Aigbekaen’s devices lacked the requisite nexus to the recognized historic rationales justifying the border search exception. While the Government had probable cause to suspect that Aigbekaen had previously committed grave domestic crimes, “these suspicions were entirely unmoored from the Government’s sovereign interests in protecting national security, collecting or regulating duties, blocking Aigbekaen’s own entry, or excluding contraband.” A finding that the border search exception were appliable here, based simply on knowledge of domestic crimes, would “untether” that exception from its well-established justifications. Riley, 573 U.S. at 386.

The Government argued that “[sex trafficking] is a crime ‘commonly involving cross-border movements.'” However, the notion of individualized suspicion is some evidentiary basis for what a specific crime does involve in the individual case at hand, not just what it “commonly involves” as a general matter. In this case, the Government offered no reasonable basis to suspect that Aigbekaen’s domestic crimes had any such transnational component.

The Fourth Circuit also rejected the district court’s conclusion that a nonroutine, intrusive search’s physical and temporal proximity to an international border “trumps everything” under the 4th Amendment. Although the Supreme Court has stated that routine border searches “are reasonable simply by virtue of the fact that they occur at the border,” Ramsey, 431 U.S. at 616, in the context of “highly intrusive” nonroutine border searches, the Supreme Court has struck a “balance between the interests of the Government and the privacy right of the individual.” Montoya de Hernandez, 473 U.S. at 540; see also Riley, 573 U.S. at 385. In Kolsuz, the Fourth Circuit clarified that a nonroutine search’s location is not dispositive of whether the border search exception applies; rather, it is the search’s relation to the Government’s sovereign interests that this paramount. 890 F.3d at 142-43.

The Fourth Circuit reminded that “the ultimate touchstone of the Fourth Amendment is reasonableness,” Riley, 573 U.S. at 381, and “it would be patently unreasonable to permit highly intrusive forensic Government searches of traveler’s digital devices, without warrants, on bases unrelated to the United States’s sovereign authority over its borders.”

The Fourth Circuit held that where a search at the border is so intrusive as to require some level of individualized suspicion, the object of that suspicion must bear some nexus to the purposes of the border search exception in order for the exception to apply. Because no such nexus existed here, the warrantless, nonroutine forensic searches violated the Fourth Amendment.

The Good-Faith Exception to the Exclusionary Rule bars suppression in this case of any evidence tainted by any constitutional defect in the May 2015.

The Government argued that any constitutional infirmity in the May 2015 searches does not justify reversal because the good-faith exception to the exclusionary rule bars suppression. Aigbekaen countered that the lack of a nexus renders the good-faith exception inapplicable. The Fourth Circuit agreed with the Government.

Fruits of “a search conducted in reasonable reliable on binding precedent [are] not subject to the exclusionary rule,” as that rule is designed “to deter future Fourth Amendment violations.” Davis v. United States, 564 U.S. 229, 236-37, 241 (2011).

In this case, the HSI agents who searched Aigbekaen’s devices in May, 2015 reasonably relied on an “established and uniform body of precedent allowing warrantless border searches of digital devices.” Kolsuz, 890 F.3d at 148. No court had previously applied the principle of tailoring the warrant exception to require a warrant “for any border search, no matter how nonroutine or invasive.” Only in 2018 did the Fourth Circuit recognize that “a search initiated at the border could become so attenuated from the rationale for the border search exception that it no longer would fall under that exception” and so require a warrant. Kolsuz, 890 F.3d at 143. And only in the present case has the Fourth Circuit applied that principle to hold unconstitutional such an attenuated, warrantless, and nonroutine forensic search at the border.

Given the uniform body of precedent that permitted warrantless searches at the border in May, 2015, the Fourth Circuit concluded that the good-faith exception applies here.

Concurrence – Judge Richardson agreed with the judgment, but disagreed with the decision to declare the border search unlawful.

Judge Richardson wrote that the Supreme Court has repeatedly upheld border agents’ broad discretion to conduct searches in sweeping terms, requiring only particularized suspicion for especially intrusive searches. The distinction between “routine” searches and highly intrusive “nonroutine” searches provides the analytical linchpin for determining whether particularized suspicion is required at the border.

The Supreme Court has suggested that only three highly intrusive situations may qualify as nonroutine: (1) highly intrusive searches of the person, (2) searches of property that are destructive, (3) and searches carried out in a particularly offensive manner. Flores-Montano, 541 U.S. at 152-56, 154 n.2.

The Court considers whether the subject of a search is a person or property. The Supreme Court has never actually held that any search of property, as opposed to persons, was “nonroutine.” Judge Richardson suggests that the Supreme Court has set a high bar for when a property search might ever rise to that level. Judge Richardson also suggests that his own Court’s holding in Kolsuz “may be controversial.” In any event, Judge Richardson found that Kolsuz held that suspicion of transnational crime was sufficient to satisfy any potential “nexus” requirement and Kolsuz did not hold that such suspicion was necessary for a border search. Judge Richardson believes that the Majority overstates the case when it claims that Kolsuz held that “where a search at the border is so intrusive as to require some level of individualized suspicion, the object of that suspicion must bear some nexus to the purposes of the border search exception in order for the exception to apply.” Judge Richardson writes that Kolsuz merely noted the possible existence of a “nexus” requirement and, assuming it existed, concluded it was satisfied.

Judge Richardson criticized the Majority’s “nexus” requirement for coming into play only for the more intrusive “nonroutine” searches because it seeks to regulate what kind of particularized suspicion is required. The “nexus” requirement is inconsistent with the Supreme Court’s border search cases which have limited the border search doctrine only when the intrusiveness of the search makes it unreasonable without particularized suspicion – not based on the government’s interests or a “nexus” between these interests and the specific search conducted.

Judge Richardson also critiqued the Majority’s application of Riley, which did not involve a border search exception. Lastly, Judge Richardson, in applying the “nexus” requirement established by the Majority, found that their view was too narrow. Just because Aigbekaen was suspected of being an interstate sex trafficker, did not mean he was not suspected of being an international sex trafficker. Police knew that Aigbekaen was a foreign national who trafficked underage girls across state lines for profit, and that while engaged in that business, he traveled abroad. Judge Richardson believed there was at least some reason to suspect that Aigbekaen’s foreign travels were not purely personal, but professional as well. There were also reasonable grounds to suspect that Aigbekaen’s electronic devices contained child pornography because he had posted suggestive photos of the underage victim on Backpage. Additionally, the hotel manager overheard Aigbekaen and his co-conspirator referring to a “movie” they were making. In sum, Judge Richardson found that there was reasonable suspicion that Aigbekaen had contraband and that his interstate crimes also had the “transnational” component the Majority would require.


This is an important case for federal practitioners. So often, concepts of “national security” are thrown around to support warrantless searches of persons and their property at airports and other points of entry. Where the warrantless search is of a cell phone, computer, or other electronic device, which makes the search “highly intrusive,” it is imperative for the Government to prove a nexus between the suspected criminal activity and historical border search purposes. A defendant who has previously committed crimes strictly in the United States that do not relate to border protection, and who happens to be returning to the United States, cannot have their electronic devices forensically searched absent a warrant. The good-faith exception should not save future constitutional violations since the Government is now on notice of the law in the Fourth Circuit.

Over 45 years of trial experience as a federal and state prosecutor and as a criminal defense attorney