I. Introduction

The Fourth Amendment guarantees the right to be free from unlawful search and seizure,[1] but the U.S. government has historically been afforded broad plenary authority to search people,[2] luggage,[3] mail,[4] and vehicles[5] at the border with essentially no level of suspicion. The border search exception was developed in an analog world; however, with the rise of smart phones and laptops, travelers now keep huge caches of information with them at all times.[6] Several cases decided in 2018 highlighted disagreement between, and within, circuit courts about whether this data is subject to warrantless search when it is carried across the international border, and if so, what level of suspicion is required.[7]

Application of the Fourth Amendment, drafted over two hundred years ago, becomes complicated as the world looks less and less like that of the drafters.[8] The question of how to apply the border search exception to modern technology is not novel, and the Supreme Court’s decision in Riley v. California renewed the inquiry.[9] The Supreme Court’s recent decision in Carpenter v. United States, extending further protection to digital cellular data[10] warrants further exploration of courts’ application of precedent and where the law should go from here.

Part II will give a brief overview of the development of border search exception caselaw, including the development of the exception, the treatment of data searches before Riley, the changes signaled in Riley and Carpenter, and the cases decided in 2018.

Part III will discuss the analytical problem at hand: how to employ precedent through analogy when applying eighteenth-century law to twenty-first-century technology.

Part IV will assert what the proper policy should be. While requiring a warrant is unlikely for any border search, because of the temporal and visibility limitations of the encounters,[11] requiring a showing of probable cause would prevent needless intrusion into travelers’ digital data.

Part V will address the likely future of the doctrine. By denying certiorari for United States v. Vergara,[12] the Supreme Court indicated that it is either not ready or not willing to resolve this issue. With the Court’s recent movement to the right,[13] the future of the doctrine is even less clear.

II. Background

The Supreme Court, along with various circuit courts, has distinguished between the type of border search (routine, nonroutine, and extended) and the level of suspicion required to conduct these searches.[14] Generally speaking, nonroutine searches require some level of particularized suspicion—usually reasonable suspicion.[15]

Two questions guide the analysis: Is the search of digital data routine? If not, should reasonable suspicion apply? How courts choose to analogize present cases to precedent guides the results of this analysis. In answering these questions, circuit courts have relied on a number of factors, such as whether the search was manual (as a normal user would look at data) or forensic (downloading and analyzing data), and the time period between the border crossing and the analysis. Courts have also analogized to other objects (luggage, containers, personal papers,[16] etc.). No court has required a warrant for a border search of cellular data.[17]

A. Border Caselaw Development

The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[18]

For a search to comport with the protections of the Fourth Amendment, it must be reasonable and carried out pursuant to a warrant based on probable cause.[19] Thus, a warrantless search is per se unreasonable unless it falls under a recognized exception.[20] In determining the reasonableness of a search and seizure, courts weigh “(1) the individual’s interest; (2) the government’s interest; (3) the necessity for the intrusion; and (4) the procedure used in conducting the search.”[21]

The Supreme Court has approved several exceptions to the warrant requirement. The border search exception to the Fourth Amendment began as a means to combat duty evasion.[22] As a matter of policy, the Fourth Amendment has traditionally been relaxed at the border. This policy is “grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country.”[23] The contours of reasonable search and seizure are determined by weighing the interests of the government against the reasonable expectation of individual privacy.[24] Courts have consistently asserted that the “[g]overnment’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border,”[25] while “expectation of privacy is less at the border than it is in the interior.”[26]

But this policy has its limitations. In an early Fourth Amendment case, Boyd v. United States, the Court invalidated a law requiring defendants to produce their personal and private books, invoices, and papers at the risk of tacitly admitting the allegations against them.[27] In that case, the Court distinguished the search and seizure of “goods liable to duties and concealed to avoid the payment thereof” from the search and seizure of “a man’s private books and papers for the purpose of obtaining information therein contained,” referring to the two things as “totally different.”[28]

Carroll v. United States further cemented the idea that the Fourth Amendment does not protect citizens against the search and seizure of contraband.[29] In Carroll, prohibition agents stopped a car transporting illegal whiskey and gin between Detroit and Grand Rapids, Michigan.[30] While this was only loosely a “border exception” case,[31] Carroll contains a well-cited dictum supporting the idea that travelers have a reduced expectation of privacy at the border:

It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travelers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.[32]

This principle has been affirmed and reaffirmed by the Court.

In United States v. Ramsey, a warrantless search of international mail, unsupported by probable cause, was held lawful on the grounds that searches made at the border “are reasonable simply by virtue of the fact that they occur at the border.”[33] In United States v. Thirty-Seven Photographs, the Court held that the seizure of obscene materials was reasonable because customs officers have the power to search luggage in order to “exclud[e] illegal articles from the country.”[34]

While searches at a geographic or constructive border are generally reasonable “simply because they occur at the border,”[35] prior caselaw distinguishes between routine and nonroutine searches.[36] This distinction came to the forefront in United States v. Montoya de Hernandez, which stated that “[r]outine searches of the persons and effects of entrants [at the border] are not subject to any requirement of reasonable suspicion, probable cause, or warrant,”[37] noting that “[b]ecause the issues are not presented today [the Court] suggest[s] no view on what level of suspicion, if any, is required for nonroutine border searches such as strip, body-cavity, or involuntary x-ray searches.”[38] Courts adopted this language, creating a dichotomy between routine and nonroutine searches, using “the degree of intrusiveness” to determine what level of suspicion was required.[39]

Routine border searches include examination of carry-on bags and checked luggage, searches of vehicles, and searches using canine sniffs or pat-downs.[40] Such searches require no warrant or showing of individualized suspicion.[41] Nonroutine searches include more intrusive and destructive techniques such as strip search,[42] body cavity search,[43] drilling into property,[44] and detention.[45] Because these searches involve greater intrusion into individual privacy, courts have generally held that nonroutine searches require a showing of reasonable suspicion.[46] The Ninth Circuit has described the distinction between routine and nonroutine searches as applying only to persons, not objects; thus, an intrusive search into an object would be per se routine.[47] But this seems to be an oversimplification, inconsistent with other decisions.[48]

In United States v. Flores-Montano, the Supreme Court overturned almost thirty years of caselaw regarding reasonable suspicion in border searches.[49] The Court held that a destructive search of a station wagon’s gas tank at the border was a routine search and did not require individualized suspicion.[50] In that case, customs officials stopped a vehicle in Southern California, at the border between the United States and Mexico.[51] Officials disassembled the vehicle’s fuel tank as part of a secondary inspection and discovered more than eighty-one pounds of marijuana.[52] This further confirmed the power of the government at the border.

C. Treatment of Electronic Data Before Riley and Carpenter

Although the Supreme Court has not yet addressed the question of electronic data in border searches, lower courts treated digital data less delicately prior to Riley v. California.

In United States v. Cotterman, the defendant was stopped at the border between the United States and Mexico and his computer was searched for child pornography based on a conviction for child molestation fifteen years before.[53] Officials conducted a forensic search of his device, bypassing password protection.[54] Acknowledging that “reasonableness remains the touchstone for a warrantless search,” the Ninth Circuit held that reasonable suspicion is required to search “the gigabytes of data regularly maintained as private and confidential on digital devices.”[55] Amid discussion as to whether the search was extended or nonroutine, the court determined that it was the “comprehensive and intrusive nature of a forensic examination—not the location of the examination—that is the key factor in triggering the requirement of reasonable suspicion.”[56] Further, the court compared the data within to “personal papers,” specifically distinguishing it from the “generic and impersonal contents” of a vehicle’s gas tank.[57]

The Ninth Circuit had previously treated the suspicionless search of a laptop as analogous to that of “closed containers and their contents” in United States v. Arnold.[58] The court in Arnold stated that reasonable suspicion is only required in “intrusive searches of the person.”[59] In closed container searches, no particularized suspicion is required.[60]

The court made the decision to analogize the laptop (which can hold hundreds of gigabytes worth of photographs, videos, documents, and emails) to a closed container such as a suitcase or valise, which would hold a much more limited number of physical objects. This comparison seems disingenuous, even accounting for the less powerful technology of ten years ago.[61] Some scholars believe that the shift signaled in Cotterman is “a step in the wrong direction,” allowing for an unbalanced weighing of interests at the border and thwarting law enforcement efforts.[62]

The District Court of the District of Columbia, however, acknowledged a higher level of protection in rejecting the container analogy. In United States v. Kim, the District Court of the District of Columbia found that reasonable suspicion was required to search Kim’s laptop, and agreed to suppress the findings of that search.[63] Knowing that Kim had participated in illegal trade activity before, a Department of Homeland Security agent “decided to search Kim’s laptop computer for evidence the next time Kim came to the United States,” effectively using the border search exception to the Fourth Amendment as a pretext to conduct a search with a lower level of suspicion than would otherwise be required.[64] The agents found incriminating emails during a forensic search and duplication of Kim’s hard drive. These emails provided the basis for a warrant to search the hard drive and seize the emails; however, the agents did not conduct any further search of the data after the warrant was obtained.[65] The government argued that the laptop was “simply a ‘container’” examined pursuant to its plenary authority to conduct warrantless searches at the border;[66] the court rejected this argument.

D. Riley and Carpenter: Tide Change in Recognition of Privacy

The Supreme Court’s opinion in Riley v. California addresses two separate criminal cases, which both center upon “whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.”[67] It should be noted that neither of these cases involved searches occurring at the physical border or a constructive border.[68]

In the first case, Riley’s cell phone was seized during an arrest for possession of a weapon resulting from a traffic stop.[69] While searching Riley incident to the arrest—a recognized exception to the Fourth Amendment warrant requirement—one of the arresting officers accessed Riley’s smart phone and found information indicating that Riley was a member of the Bloods gang.[70] This information was used to charge him, in connection with an earlier shooting, with firing at an occupied vehicle, assault with a semiautomatic firearm, and attempted murder, in addition to the original weapons charge.[71] The information was also used as an aggravating factor to enhance his sentence on the grounds that Riley committed the crimes for the benefit of a criminal street gang.[72] Riley moved to suppress all information found within his cell phone because the search was warrantless and “not otherwise justified by exigent circumstances.”[73]

In the second case, a police officer observed Brima Wurie making “an apparent drug sale from a car.”[74] Officers accessed Wurie’s phone’s call log, identified a phone number labeled “my house,” then looked up the associated address.[75] Officers secured a search warrant for the apartment, where they found “crack cocaine, marijuana, drug paraphernalia, a firearm and ammunition, and cash.”[76] Wurie moved to suppress any evidence from the apartment search arguing that although the search was supported by a warrant, it was “the fruit of an unconstitutional search of his cell phone.”[77]

In both cases, the government challenged the suppression motions using the search-incident-to-arrest exception.[78] Riley’s conviction was upheld while Wurie’s was vacated and remanded by the First Circuit.[79]

The First Circuit, in deciding Wurie, determined that cell phones do not fit within the traditional rationales for search incident to arrest.[80] Quoting Arizona v. Gant, the court concluded that “law enforcement officials do not have ‘unbridled discretion to rummage at will among a person’s private effects,’” and that “[a]llowing the police to search data without a warrant any time they conduct a lawful arrest would . . . create ‘a serious and recurring threat to the privacy of countless individuals.’”[81]

In deciding Riley, the Supreme Court expressly declared that the government’s heightened interests in an arrest situation do not automatically exceed the privacy interests of the arrestee.[82] The Court acknowledged 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.”[83] Citing Judge Learned Hand’s opinion in United States v. Kirschenblatt,[84] the Court observed that when cell phones are treated as ordinary items in one’s pockets, the difference between “search[ing] a man’s pockets and us[ing] against him what they contain” and “ransacking his house for everything which may incriminate him” is destroyed.[85]

Carpenter v. United States, while not dealing with contemporaneous search of digital data, presents a confirmation of digital privacy that may (and should) carry over to other applications. In Carpenter, the FBI requested “transactional records” of Carpenter’s cell tower location data over the course of 127 days from a magistrate judge pursuant to the Stored Communications Act (SCA).[86] The records listed 12,898 location points, an average of 101 location points per day of surveillance.[87] This was not an active surveillance of the defendant, but a review of the cell tower location data showing Carpenter’s location, stored with his cell phone company.[88] Using the data obtained, Timothy Carpenter was charged in connection with an armed robbery.[89]

As in Riley, the majority[90] acknowledged that cell tower location data does not fit with prior caselaw.[91] Chief Justice Roberts states that the case “lie[s] at the intersection of two lines of cases,” one of which “addresses a person’s expectation of privacy in his physical location and movements,”[92] and the other which traces a person’s “expectation of privacy in information he voluntarily turns over to third parties.”[93] The third-party doctrine, which denies a right to privacy of information disclosed to a third party, assumes that a person “take[s] the risk, in revealing his affairs to another, that the information [will] be conveyed by that person to the Government.”[94] In declining to extend this principle to cell tower location data, Roberts aptly analogized the records to an extended physical surveillance of Carpenter.[95]

E. The Great Split of 2018–2019

Inconsistent precedent existed well before 2018.[96] Three circuit courts decided four digital border search cases in 2018: the Fourth,[97] Fifth,[98] and Eleventh.[99] The Seventh Circuit addressed the issue in early 2019.[100] Having no binding precedent upon which to rely, each court analogized to past cases.

In Molina-Isidoro, the defendant was entering the United States from Mexico when she was stopped by Custom and Border Protection (CBP) agents.[101] The agents “detected anomalies” in her suitcase during an x-ray examination.[102] Further inspection revealed a modification of the suitcase which contained methamphetamine.[103] Molina-Isidoro offered a convoluted story recounting her travels in Mexico. After determining that Molina-Isidoro’s story “made little sense,” CBP agents searched her phone without her consent.[104] During their manual search of Uber and WhatsApp, agents discovered evidence that indicated her participation in a drug smuggling scheme.[105] The Fifth Circuit refused to decide the Fourth Amendment question, instead holding that “[t]he fruits of [the] search need not be suppressed if the agents acted with the objectively reasonable belief that their actions did not violate the Fourth Amendment” because “the cost of suppression—excluding the evidence from the truth-finding process—outweighs the deterrent effect suppression may have on police misconduct.”[106]

In his special concurrence in Molina-Isidoro, Judge Costa compared the data stored in our devices to the “private papers” the Supreme Court warned against invading in Boyd, containing “the privacies of life.”[107] This distinction is supported by the reasoning in Riley, which “definitively rejected analogies between digital information accessible by cell phones and physical property.”[108]

In United States v. Kolsuz, the Fourth Circuit was charged with deciding whether two warrantless searches of Hamza Kolsuz’s cell phone violated the protections of the Fourth Amendment. Kolsuz, who had been stopped twice before for attempting to smuggle firearms parts, was stopped at an airport on his way out of the country.[109] CBP agents examined two of his checked bags, finding “multiple firearm parts.”[110] After this discovery, agents conducted two searches of Kolsuz’s iPhone: the first was a manual search, the second, forensic.[111] The forensic search, designed to avoid accessing cloud-based data, extracted Kolsuz’s “personal contact lists, emails, messenger conversations, photographs, videos, calendar, web browsing history, and call logs, along with a history of Kolsuz’s physical location down to precise GPS coordinates.”[112] The Fourth Circuit opined that a forensic search of cell phone data was a “highly intrusive search[]” as defined by the Supreme Court in Flores-Montano and thus required a showing of individualized suspicion.[113] But, citing Molina-Isidoro, the court did not decide the issue, as the agents relied on “the established and uniform body of precedent allowing warrantless border searches of digital devices that are based on at least reasonable suspicion.”[114] The showing of reasonable suspicion was met, and the products of the search were not suppressed.[115]

The Eleventh Circuit moved in a distinctly more government-friendly direction when it decided two digital data border search cases in 2018. In United States v. Vergara, Judge William Pryor, writing for the Eleventh Circuit, declined to extend Riley to require a warrant to conduct a forensic search on two cell phones carried by Vergara on a cruise from Mexico to Florida.[116] After finding three phones in Vergara’s luggage, a CBP agent asked Vergara to turn on one of the phones.[117] The agent conducted a five-minute manual search, finding a video of two topless female minors.[118] Based on this finding, an agent of the Department of Homeland Security conducted a forensic examination of each of the three phones; child pornography was found on two of the three phones.[119] Vergara moved to suppress the evidence found on his cell phones on the basis that Riley required a warrant to conduct a forensic search.[120] Finding that Riley’s holding did not apply to border searches, the court declined to suppress the information.[121] In doing so, the court agreed with the government’s position that “if [Vergara] had entered the country with child pornography images in a notebook, the notebook would have been subject to inspection, and he cannot be allowed to insulate himself from inspection by storing child pornography electronically on his cell phone.”[122] Importantly, it also concluded that regardless of whether the search required reasonable suspicion, the standard was met.[123] The conviction and denial of suppression was affirmed.[124]

In a strong dissent, Judge Jill Pryor “agree[d] with the majority that the government’s interest in protecting the nation is at its peak at the border, but . . . disagree[d] with the majority’s dismissal of the significant privacy interests implicated in cell phone searches.”[125] Judge Pryor noted that:

Neither the Supreme Court nor any federal circuit court has determined the level of suspicion required to justify the forensic search of a cell phone at the border. But in Riley, the Supreme Court suggested an answer by holding that probable cause and a warrant are required to manually search a cell phone following an arrest.[126]

In United States v. Touset, Judge William Pryor doubled down on his stance that no level of suspicion was required for even a forensic search of a digital device.[127] Touset, the subject of “a series of investigations by private organizations and the government” for his involvement in child pornography, was stopped as he carried two iPhones, a camera, two laptops, two external hard drives, and two tablets into the country.[128] A manual search of his iPhones and camera revealed no child pornography, but agents found child pornography when they performed forensic examinations on the laptops and hard drives.[129] Based on this information, officials searched Touset’s home pursuant to a warrant and arrested him.[130]

Citing Flores-Montano, the court “[saw] no reason why the Fourth Amendment would require suspicion for a forensic search of an electronic device when it imposes no such requirement for a search of other personal property.”[131] To justify this, the court relied heavily on tradition, stating “[t]he Supreme Court has never required reasonable suspicion for a search of property at the border, however, nonroutine and intrusive,” and that “inspection of a traveler’s property ‘is an old practice and is intimately associated with excluding illegal articles from the country.’”[132] The court acknowledged the holdings in Kolsuz and Cotterman, but stated that it was “unpersuaded.”[133] This holding was unnecessary; the court acknowledged that the government already had a “‘particularized and objective basis for suspecting’ that Touset possessed child pornography on his electronic devices” based on earlier ongoing investigations by the government.[134] Thus, it could have avoided deciding whether forensic searches required reasonable suspicion, as it was already present.

In 2019, the Seventh Circuit affirmed Donald Wanjiku’s conviction based on evidence gathered from his cell phone, external hard drive, and laptop during a warrantless border search.[135] Mr. Wanjiku was stopped because he met certain screening factors for potential criminal activity involving child sex trafficking.[136] The court analyzed border search caselaw as well as Riley and Carpenter, ultimately distinguishing Wanjiku’s case on the basis that “the government’s interests are at their zenith” at the border, and “neither case addresses data stored on other electronic devices such as portable hard drives and laptops.”[137] Similar to the Fifth Circuit’s decision in Molina-Isidoro, the court acknowledged that the agents likely had reasonable suspicion, and even if they did not, the agents had acted in good faith reliance “on Supreme Court precedent that required no suspicion for nondestructive border searches of property.”[138]

III. The Analogical Problem

As indicated above, the exceptions to the Fourth Amendment are almost as old as the Fourth Amendment itself. The border search exception developed in a time where the risks of intrusion were limited to the things you could carry.[139] But our private communications, financial records, personal contacts, photographs, and all the other detritus carried in our digital devices are not the sort of items that were originally weighed against the government’s interest in national security. Agents searching digital data at the border seek evidence of criminal activity, not items which are in themselves criminal, much less criminal because of their presence at the border.[140]

When applying the law to facts presented, advocates and courts have numerous tools from which to choose.[141] One of the most effective and convincing is stare decisis—“to stand by things decided.”[142] Deceptively simple, stare decisis follows three steps: (1) identify likenesses between cases; (2) identify the rule from the prior case; and (3) apply this rule to the case at hand.[143] “But when faced with the task of applying eighteenth-century principles to this twenty-first-century technology,”[144] reasoning by analogy[145] becomes increasingly difficult as fewer and fewer direct comparisons apply.[146] In particular, reliance on stare decisis becomes difficult when drastic changes in technology create situations unanticipated by legislators.[147] This creates a tough decision for the court: should it apply a poorly-adapted factual analogy, or should it rely on a realist analogy?[148]

In dealing with the warrantless search of digital data, courts have drawn disparate analogies, with results to match;[149] other courts have declined to participate in the exercise altogether.[150] The majority in Riley expressed incredulity at the United States’ assertion that a “search of all data stored on a cell phone is ‘materially indistinguishable’ from searches of . . . physical items” such as zipper bags, billfolds, address books, wallets, and purses.[151] While analogy remains a necessary tool in analyzing judicial precedent, there must be some safeguard against forcing a square peg into a round hole. The truth is that courts are being forced to apply law designed for another time altogether to problems which were inconceivable to the drafters of that law.

IV. Where Do We Go from Here?

The Court need not wholly abandon analogy when analyzing new problems with old law; however, it should consider the breadth of caselaw available to use as precedent in the first place. Currently, border search cases are compared to prior border search cases. However, an analysis of the interests weighed to determine the reasonableness of a search may warrant an expanded view of precedent.[152] As stated in Riley, the government’s interests do not automatically exceed the privacy interests of the individual.[153] As noted in Judge Jill Pryor’s dissent in Vergara, this means that national interest in border searches is higher than the police interest in a search incident to arrest, but the privacy interest is also higher than it is generally.[154] The heightened government interests and the travelers’ reduced privacy interests at the border “[do] not mean that the Fourth Amendment falls out of the picture entirely.”[155] When “‘privacy related concerns are weighty enough,’ as they are in a forensic search of a cell phone, the search may require a warrant, ‘notwithstanding the diminished expectations of privacy.’”[156]

Circuit courts should consider the Court’s determination of increased digital privacy interests in Riley and Carpenter when ruling on border search cases, despite the use of a different Fourth Amendment exception. Further, circuit courts should outright reject any analogy to closed containers, as the Supreme Court did in Riley. Perhaps the Court should take another look at whether the border search exception should apply to the search of digital data at all.[157]

Alternatively, courts considering border search exceptions could analyze the intrusiveness of the search, rather than analogizing to objects. This would mean choosing to apply a categorical level of suspicion to all searches of digital data. Some scholars have suggested applying the higher “reasonable suspicion” standard historically applied to intrusive bodily searches[158] to only forensic searches, leaving manual searches available with no level of suspicion.[159]

While this may be a useful approach, it draws a line of protection too low in light of Carpenter. A manual search still allows CBP agents to access to emails, text messages, and other personal data, not to mention sensitive commercial or work data. The data analyzed in a forensic search is even more revealing: metadata stored on the phone, for example in photographs, reveals the location of the owner, similar to the cell site location information at issue in Carpenter.[160] The Court found the SCA warrant, which met the § 2703(d) standard of “specific and articulable facts showing that there are reasonable grounds to believe that the contents of . . . records or other information sought, are relevant and material to an ongoing criminal investigation” to be insufficient to allow records of Carpenter’s cell site location information to be brought as evidence;[161] to allow the exact same information extracted from metadata with mere reasonable suspicion would be an unacceptable and inconsistent result.

Advocates for application of the exception to digital data often point toward the prevention of terrorism and child pornography as a justification.[162] However, this approach ignores the other tools available to the United States to combat these crimes. The United States has some of the most sophisticated cyber-crime fighting capabilities in the world.[163] Further, application of a heightened level of suspicion for border searches would leave available other Fourth Amendment warrant exceptions, such as exigent circumstances[164] and the plain view exception.[165] Exigent circumstances may qualify as an exception of the Fourth Amendment where the “situational and environmentally influenced” circumstances “make obtaining a warrant impractical, useless, dangerous, or unnecessary, and [ ] justify warrantless arrests or entries into homes or premises.”[166] This would be more than adequate to justify the examination of a terror suspect’s or child pornographer’s phone.

The border search exception would still apply to the belongings and, with reasonable individualized suspicion, to the person of the traveler.[167] Requiring a warrant would not cripple the government’s ability to control that which enters and exits its borders.

The Supreme Court recently denied certiorari to United States v. Vergara, passing up an opportunity to clarify the law.[168] For as long as this issue remains unaddressed, lower courts will be free to rely on conflicting precedent or avoid the issue altogether.[169]

V. The Effect of the Changing Supreme Court

If the holdings of Riley and Carpenter are any indication of the direction of the Court, it seems likely that future cases about searches of digital data at the border will result in higher protection for travelers. However, after noted swing-vote Justice Anthony Kennedy’s replacement with conservative Justice Brett Kavanaugh, the future of the Court is in question. Justice Kavanaugh has “an extensive record in cases implicating national security,” ruling with originalist conservative bent.[170] But his record on Fourth Amendment cases is understandably scant; the D.C. Circuit Court of Appeals does not usually see many search and seizure cases.[171] However, in Klayman v. Obama, Kavanaugh opined that, “the Government’s metadata collection program is entirely consistent with the Fourth Amendment,” as “[t]he Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient ‘special need.’”[172] According to Orin Kerr, this was consistent with precedent before Carpenter;[173] would Kavanaugh be willing to read the Riley and Carpenter opinions broadly enough to afford protection to digital data? This remains to be seen.

Any attempt to predict the behavior of Kavanaugh and future appointees is likely an exercise in futility, as the political alignment of Justices’ decisions sometimes change after their appointment.[174] Only time will tell how the changing composition of the Supreme Court will affect digital privacy.

VI. Conclusion

Riley and Carpenter undoubtedly show a willingness on the part of the Court to acknowledge that digital data doesn’t fit the existing precedent set by earlier Fourth Amendment cases. But because circuit courts have still applied conflicting pre-Riley analogical reasoning to border search cases brought post-Riley, it may be that the Supreme Court needs to take more direct action on border search of digital data before the courts start reaching consistent decisions. One would hope that the Court’s decision in Carpenter would persuade the lower courts to more readily require suspicion to search digital data, but the reliance on stare decisis may prevent such a result until the Supreme Court creates on point, binding precedent.

The recent addition of Justice Kavanaugh and future additions could call the future of the Court’s treatment of digital data into question, as conservative justices tend to construe precedent narrowly. If the Court continues to add executive-friendly originalist justices to its bench, it is likely that, without binding precedent to the contrary, the continued application of outdated and inaccurate analogies will continue indefinitely at the expense of citizen privacy.

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

  2. See, e.g., 19 U.S.C. § 1582 (2012); Carroll v. United States, 267 U.S. 132, 154 (1925); United States v. Chavarria, 493 F.2d 935, 937 (5th Cir. 1974).

  3. See, e.g., United States v. Gonzalez, 483 F.2d 223, 224 (2d Cir. 1973) (citing United States v. Ortega, 471 F.2d 1350, 1360 (2d Cir. 1972)); United States v. Chaplinski, 579 F.2d 373, 374 (5th Cir. 1978) (citations omitted).

  4. See, e.g., United States v. Ramsey, 431 U.S. 606, 607–08 (1977).

  5. See, e.g., United States v. Flores-Montano, 541 U.S. 149, 152 (2004).

  6. See Riley v. California, 573 U.S. 373, 393–94 (2014) (“One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities . . . .”).

  7. See United States v. Touset, 890 F.3d 1227, 1229, 1231 (11th Cir. 2018) (holding that no level of suspicion is required for forensic searches of electronic devices at the border); United States v. Kolsuz, 890 F.3d 133, 144 (4th Cir. 2018) (holding that a forensic search of a cell phone must be treated as a nonroutine border search, requiring individualized suspicion); United States v. Vergara, 884 F.3d 1309, 1311 (11th Cir. 2018) (holding that the forensic searches of defendant’s cell phones did not require a warrant or probable cause), cert. denied 139 S. Ct. 70 (2018); id. at 1313 (Pryor, J., dissenting) (asserting that a forensic search of a cell phone at the border requires a warrant supported by probable cause); United States v. Molina-Isidoro, 884 F.3d 287, 292–93 (5th Cir. 2018) (holding agents’ search of defendant’s WhatsApp conversation was supported by good faith reliance on existing caselaw and was likely also supported by probable cause); id. at 295 (Costa, J., specially concurring) (recognizing the difference between cell phone data and the contraband the border search exception is designed to detect).

  8. See Jeffrey Rosen, Introduction, in Constitution 3.0: Freedom and Technological Change 1, 2–3 (Jeffrey Rosen & Benjamin Wittes eds., 2011) (discussing the challenges faced by the Supreme Court in deciding Olmstead v. United States, 277 U.S. 438, 474 (1928), and noting in particular, that Justice Brandeis’s dissent “prescient[ly]” discusses the possibility that “the [g]overnment, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home”).

  9. See, e.g., Thomas Mann Miller, Digital Border Searches After Riley v. California, 90 Wash. L. Rev. 1943, 1975 (2015); Scott J. Upright, Suspicionless Border Seizures of Electronic Files: The Overextension of the Border Search Exception to the Fourth Amendment, 51 Wm. & Mary L. Rev. 291, 323 (2009).

  10. Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018).

  11. Kelly A. Gilmore, Preserving the Border Search Doctrine in a Digital World: Reproducing Electronic Evidence at the Border, 72 Brook. L. Rev. 759, 768–69 (2007) (“[T]he Court also emphasized that demanding anything more than reasonable suspicion is impracticable. Illegal behavior at the border, such as internal narcotics smuggling, will rarely produce external symptoms.”).

  12. Vergara, 884 F.3d 1309.

  13. Philip Bump, How Brett Kavanaugh Would Shift the Supreme Court to the Right, Wash. Post (July 10, 2018), https://www.washingtonpost.com/news/politics/wp/2018/07/10/how-brett-kavanaugh-would-shift-the-supreme-court-to-the-right.

  14. The Court has distinguished extended border searches, which take place after the first point in time in which the person or package may have been stopped, from routine searches. United States v. Caminos, 770 F.2d 361, 364 (3d Cir. 1985). In determining the reasonableness of an extended search, the Court looks at the distance and time between the search and the first moment in which the property could have been searched, along with whether there is a reasonable certainty that a border crossing occurred, reasonable certainty that the condition of the luggage has not changed since the crossing, and reasonable suspicion of criminal activity. Id. Extended border search has the same practical effect as nonroutine, as it requires a reasonable individualized suspicion and involves a more thorough forensic search of the material. Nonroutine forensic searches of digital data often occur long after customs officials have returned the device to the traveler, and thus the question of extended search suspicion is applicable to the topic. Because I propose that all digital data search should be subject to probable cause and warrant requirements, the issue of extended searches and nonroutine versus routine is moot and this Comment will not focus on the distinction. Many other articles have focused on the distinction between suspicion required for routine and nonroutine searches. For an examination of the effects of such a dichotomy, see Laura Nowell, Note, Privacy at the Border: Applying the Border Search Exception to Digital Searches at the United States Border, 71 Fed. Comm. L.J. 85, 93 (2018).

  15. Gilmore, supra note 11, at 766–69.

  16. United States v. Molina-Isidoro, 884 F.3d 287, 296 (5th Cir. 2018) (Costa, J., concurring) ("The search for and seizure of stolen or forfeited goods . . . are totally different things from a search for and seizure of a man’s private books and papers for the purpose of obtaining information therein contained . . . . " (quoting Boyd v. United States, 116 U.S. 616, 623 (1886))).

  17. Molina-Isidoro, 884 F.3d at 292 (“What is more, not a single court addressing border searches of computers since Riley has read it to require a warrant.” (citations omitted)).

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

  19. Nowell, supra note 14, at 88.

  20. Katz v. United States, 389 U.S. 347, 357 (1967) (“[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” (footnotes omitted)); 68 Am. Jur. 2d Searches and Seizures § 14 (2010).

  21. Searches and Seizures, supra note 20, § 12.

  22. See, e.g., Act of July 31, 1789, ch. 5, § 24, 1 Stat. 29, 43 (“That every collector, naval officer and surveyor, or other person . . . shall have full power and authority, 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 therein to search for, seize, and secure any such goods, wares or merchandise . . . .”); Boyd v. United States, 116 U.S. 616, 622–23 (1886); see also Act of Mar. 3, 1815, ch. 94, § 2, 3 Stat. 231, 232; Carroll v. United States, 267 U.S. 132, 149–53 (1925) (explaining the history).

  23. United States v. Ramsey, 431 U.S. 606, 620 (1977).

  24. See id. at 619 n.14 (quoting Carroll, 267 U.S. at 149).

  25. United States v. Flores-Montano, 541 U.S. 149, 152–53 (2004).

  26. Id. at 154 (citing United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985)); see also United States v. Thirty-Seven Photographs, 402 U.S. 363, 376 (1971) (“But a port of entry is not a traveler’s home. His right to be let alone neither prevents the search of his luggage nor the seizure of unprotected, but illegal, materials when his possession of them is discovered during such a search.”).

  27. Boyd, 116 U.S. at 616, 622.

  28. Id. at 623; see also Carroll, 267 U.S. at 147 (1925) (referring to Boyd as “the leading case on the subject of search and seizure.”).

  29. Carroll, 267 U.S. at 153.

  30. Id. at 134–36.

  31. Id. at 160 (noting that defendants were stopped between Detroit, known at the time to be “one of the most active centers” for smuggling illegal liquor across the Canadian border, and Grand Rapids, which is 152 miles away from Detroit).

  32. Id. at 153–54. As of the writing of this article, this portion of the case is, according to Westlaw, cited in 167 cases, including, inter alia: United States v. Flores-Montano, 541 U.S. 149, 154 (2004); United States v. Montoya de Hernandez, 473 U.S. 531, 551 (1985); Hernandez v. United States, 757 F.3d 249, 267 (5th Cir. 2014); United States v. Cotterman, 709 F.3d 952, 971 (9th Cir. 2013); United States v. Alfaro-Moncada, 607 F.3d 720, 728 (11th Cir. 2010).

  33. United States v. Ramsey, 431 U.S. 606, 616 (1977).

  34. United States v. Thirty-Seven Photographs, 402 U.S. 363, 376–77 (1971).

  35. United States v. Mejia, 720 F.2d 1378, 1381 (5th Cir. 1983) (citing United States v. Sandler, 644 F.2d 1163, 1169 (5th Cir. 1981)).

  36. Gilmore, supra note 11, at 766–67.

  37. Montoya de Hernandez, 473 U.S. at 538 (footnote omitted).

  38. Id. at 541 n.4.

  39. See United States v. Flores-Montano, 541 U.S. 149, 152 (2004) (discussing the actions of the Court of Appeals in United States v. Molina-Tarazon, 279 F.3d 709, 711–13 (9th Cir. 2002)).

  40. Gilmore, supra note 11, at 767.

  41. United States v. Molina-Isidoro, 884 F.3d 287, 291 (5th Cir. 2018).

  42. United States v. Afanador, 567 F.2d 1325, 1329 (5th Cir. 1978) (discussing standard applied to strip searches).

  43. Montoya de Hernandez, 473 U.S. at 551.

  44. United States v. Rivas, 157 F.3d 364, 367 (5th Cir. 1998).

  45. Terry v. Ohio, 392 U.S. 1, 31–33 (1968) (Harlan, J., concurring).

  46. 5 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 10.5(f) (5th ed. 2012).

  47. United States v. Chaudhry, 424 F.3d 1051, 1054 (9th Cir. 2005) (citing United States v. Flores-Montano, 541 U.S. 149, 152 (2004)).

  48. In Chaudhry, the Ninth Circuit held that drilling a small hole in the bed of a truck was not sufficiently destructive to require reasonable suspicion (a hallmark of nonroutine searches). Id. at 1053. It follows that there would be a level of intrusiveness that would characterize a search of an object as nonroutine.

  49. Flores-Montano, 541 U.S. at 151–52 (overruling United States v. Molina-Tarazon, 279 F.3d 709 (9th Cir. 2002)).

  50. Id. at 150–51.

  51. Id. at 150.

  52. Id. at 150–51 (noting that the inspector found thirty-seven kilograms of marijuana bricks).

  53. United States v. Cotterman, 709 F.3d 952, 956 (9th Cir. 2013).

  54. Id. at 957–59.

  55. Id. at 957.

  56. Id. at 962.

  57. Id. at 964.

  58. United States v. Arnold, 533 F.3d 1003, 1007–08 (9th Cir. 2008).

  59. Id. at 1007 (quoting United States v. Flores-Montano, 541 U.S. 149, 152 (2004)).

  60. Id.

  61. Arnold was decided in 2008.

  62. Michael Creta, A Step in the Wrong Direction: The Ninth Circuit Requires Reasonable Suspicion for Forensic Examinations of Electronic Storage Devices During Border Searches in United States v. Cotterman, 55 B.C. L. Rev. E. Supp. 31, 42 (2014) (“Affording electronic storage devices reasonable suspicion protection would only make it more difficult to combat issues such as child pornography and terrorism.”).

  63. United States v. Kim, 103 F. Supp. 3d 32, 59 (D.C. Cir. 2015).

  64. Id. at 34.

  65. Id. at 34, 59.

  66. Id. at 35.

  67. Riley v. California, 573 U.S. 373, 378 (2014).

  68. See generally United States v. Wurie, 728 F.3d 1 (1st Cir. 2013) (cell phone searched incident to arrest); People v. Riley, D059840, 2013 WL 475242 (Cal. Ct. App. Feb. 8, 2013) (cell phone searched incident to arrest).

  69. Riley, 573 U.S. at 378–79.

  70. Id. at 379. (“The officer . . . noticed that some words (presumably in text messages or a contacts list) were preceded by the letters ‘CK’—a label that, he believed, stood for ‘Crip Killers,’ a slang term for members of the Bloods gang.”).

  71. Id.

  72. Id.

  73. Id.

  74. Id. at 380.

  75. Id.

  76. Id. at 381.

  77. Id.

  78. Id. at 382.

  79. Id. at 380–81, 403.

  80. United States v. Wurie, 728 F.3d 1, 3–6, 13 (1st Cir. 2013). Search-incident-to-arrest is justified by a need to “prevent [evidence’s] concealment or destruction,” id. at 34 (citing Chimel v. California, 395 U.S. 752, 763 (1969)), a “need to disarm the suspect [and] to preserve evidence on his person for later use at trial,” id. at 4 (citing United States v. Robinson, 414 U.S. 218, 235 (1973)), and a need to “protect[ ] arresting officers,” id. at 5 (citing Arizona v. Gant, 556 U.S. 332, 339 (2009)).

  81. Wurie, 728 F.3d at 14 (quoting Gant, 556 U.S. at 345).

  82. Riley, 573 U.S. at 401–02.

  83. Id. at 393.

  84. United States v. Kirschenblatt, 16 F.2d 202 (2d Cir. 1926).

  85. Riley, 573 U.S. at 396–97 (citing Kirschenblatt, 16 F.2d at 203).

  86. 18 U.S.C. § 2703(d) (2012) (explaining the standard for a court order under the Stored Communications Act) (“[T]he governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” (emphasis added)).

  87. Carpenter v. United States, 138 S. Ct. 2206, 2212 (2018).

  88. Id. (“Federal Magistrate Judges issued two orders directing Carpenter’s wireless carriers . . . to disclose ‘cell/site sector [information] for [Carpenter’s] telephone[ ] at call origination and at call termination for incoming and outgoing calls’ during the four-month period when the string of robberies occurred.” (alterations in original)).

  89. Id.

  90. Id. at 2211 (Carpenter was a 5–4 decision authored by Chief Justice Roberts.).

  91. Id. at 2214 (“This sort of digital data—personal location information maintained by a third party—does not fit neatly under existing precedents.”).

  92. Id. at 2214–15.

  93. Id. at 2216 (citation omitted).

  94. Id. (citing United States v. Miller, 425 U.S. 435, 443 (1976)).

  95. Id. at 2217. Citing United States v. Jones, 565 U.S. 400, 430 (2012), the opinion acknowledges that “society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.”

  96. See infra Section II.D.

  97. United States v. Kolsuz, 890 F.3d 133 (4th Cir. 2018).

  98. United States v. Molina-Isidoro, 884 F.3d 287 (5th Cir. 2018).

  99. United States v. Vergara, 884 F.3d 1309 (11th Cir. 2018); United States v. Touset, 890 F.3d 1227 (11th Cir. 2018).

  100. United States v. Wanjiku, 919 F.3d 472 (7th Cir. 2019).

  101. Molina-Isidoro, 884 F.3d at 289.

  102. Id.

  103. Id.

  104. Id.

  105. Id. at 289–90.

  106. Id. at 290 (citing United States v. Curtis, 635 F.3d 704, 713 (5th Cir. 2011); Davis v. United States, 564 U.S. 229, 237–38 (2011)).

  107. Id. at 296 (5th Cir. 2018) (Costa, J., specially concurring); Boyd v. United States, 116 U.S. 616, 630 (1886).

  108. Miller, supra note 9, at 1946 (citing Riley v. California, 573 U.S. 373, 393 (2014)).

  109. United States v. Kolsuz, 890 F.3d 133, 149 (4th Cir. 2018).

  110. Id. at 139.

  111. Id.

  112. Id.

  113. Id. at 144.

  114. Id. at 148.

  115. Id. at 147.

  116. United States v. Vergara, 884 F.3d 1309, 1310–11 (11th Cir. 2018).

  117. Id. at 1311.

  118. Id.

  119. Id.

  120. Id.

  121. Id. at 1310–11.

  122. Id. at 1311 (alteration in original).

  123. Id.

  124. Id. at 1313.

  125. Id. at 1313 (Pryor, J., dissenting).

  126. Id. at 1315 (footnote omitted).

  127. United States v. Touset, 890 F.3d 1227, 1229 (11th Cir. 2018).

  128. Id. at 1230.

  129. Id.

  130. Id.

  131. Id. at 1233.

  132. Id. (citing United States v. Thirty-Seven Photographs, 402 U.S. 363, 376 (1971)).

  133. Id. at 1234.

  134. Id. at 1237 (citation omitted).

  135. United States v. Wanjiku, 919 F.3d 472, 474 (7th Cir. 2019).

  136. Id. CBP agents screened passengers pursuant to “Operation Culprit,” identifying “(1) U.S. citizen (2) men (3) between the ages of eighteen and fifty or sixty (4) returning from the Philippines, Thailand, or Cambodia (5) traveling alone (6) with a prior criminal history.” Id. He was also identified to be of interest because he “had booked a prior flight using an e-mail address that incorporated the name ‘Mr. Dongerous.’” Id.

  137. Id. at 482–84.

  138. Id. at 488–89.

  139. Congress passed the first border exemption from probable cause requirements in 1789, long before the advent of cloud computing. Act of July 31, 1789, ch. 5, 1 Stat. 29, 43.

  140. Some digital data may be criminal in itself, such as child pornography and code intended for cybercrime. However, the data is not more or less criminal because it is crossing a border. Further, the cases that have come to bar thus far have been more than supported by reasonable suspicion, if not probable cause. To compare this data to the contraband and duty evasion for which the border exception was created is too tenuous.

  141. Wilson Huhn, The Five Types of Legal Argument 15 (1st ed. 2002).

  142. Id. at 42 (footnote omitted). This particular approach is particularly effective, as it uses the material generated by the court to persuade the court to do what it has done before—an approach which is difficult to dispute. Other scholars have noted the tendency of courts to “look[] for historical guardrails.” Note, The Border Search Muddle, 132 Harv. L. Rev. 2278, 2285 (2019).

  143. Edward H. Levi, An Introduction to Legal Reasoning 1–2 (1949).

  144. United States v. Kim, 103 F. Supp. 3d 32, 51 (D.C. Cir. 2015).

  145. Huhn, supra note 141, at 42 (“The use of precedent is essentially reasoning by analogy.”).

  146. Id. at 120.

  147. See, e.g., ClearCorrect Operating, LLC v. Int’l Trade Comm’n, 810 F.3d 1283, 1286 (Fed. Cir. 2015) (holding that the term “articles” as defined by the Tariff Act of 1930 should not be interpreted to include electronic transmission of digital data).

  148. This problem is not as novel as one might think. In his book The Nature of the Judicial Process, Justice Benjamin N. Cardozo (1870–1938) noted: “Some judges seldom get beyond [factual analogy] in any case. Their notion of their duty is to match the colors of the case at hand against the colors of many sample cases spread out upon their desk. The sample nearest in shade supplies the applicable rule.” Benjamin N. Cardozo, The Nature of the Judicial Process 20 (Yale Univ. Press 1921).

  149. See, e.g., United States v. Cotterman, 709 F.3d 952, 966 (9th Cir. 2013) (comparing the forensic search of an imaged computer to a strip search); United States v. Saboonchi, 990 F. Supp. 2d 536, 568 (D. Md. 2014) (referring to forensic search as “sui generis,” acknowledging the stark departures from the usual border searches); cf. United States v. Ickes, 393 F.3d 501, 503–04 (4th Cir. 2005) (holding that a laptop fell well within the term “cargo,” upholding the search).

  150. United States v. Kim, 103 F. Supp. 3d 32, 50 (D.C. Cir. 2015) (“Judges across the country have strained to select artful metaphors to use when comparing digital devices to containers ranging from slim leather valises to shipping containers, but this Court will not engage in that semantic exercise because the fact is, the metaphors do not fit.”).

  151. Riley v. California, 573 U.S. 373, 393 (2014) (“That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.”).

  152. In analyzing the search-incident-to-arrest exception, the government’s interest in preventing destruction of evidence is weighed against the privacy interests of an already lawfully arrested individual. The border search exception, on the other hand, weighs national interest in excluding contraband against the privacy interests of an otherwise suspicion-less traveler. See supra notes 21, 23 and accompanying text.

  153. Riley, 573 U.S. at 392.

  154. United States v. Vergara, 884 F.3d 1309, 1316 (11th Cir. 2018) (Pryor, J., dissenting).

  155. Id. (quoting Riley, 573 U.S. at 392).

  156. Id. (quoting Riley, 573 U.S. at 392).

  157. Miller’s article, written four years ago, looks at a similar issue just after the release of Riley v. California. See generally Miller, supra note 9. Yet, four cases decided in the last year still apply the pre-Riley standards of suspicion to these searches. This, to me, reflects an inaccurately narrow reading of Riley.

  158. Gilmore, supra note 11, at 796–97.

  159. Nowell, supra note 14, at 104.

  160. Carpenter v. United States, 138 S. Ct. 2206, 2212 (2018); see also United States v. Kolsuz, 890 F.3d 133, 139 (4th Cir. 2018) (wherein a forensic search of a cell phone yielded a history of the defendant’s physical location recorded as precise GPS coordinates).

  161. Carpenter, 138 S. Ct. at 2212.

  162. Creta, supra note 62, at 42; Gilmore, supra note 11, at 781 (2007) (“Creating a sanctuary at the border for digital information would cripple Customs in the fight against terrorism, narcotics trafficking, illegal money transfers, and child pornographers.”).

  163. Jack Goldsmith & Stuart Russell, Strengths Become Vulnerabilities: How a Digital World Disadvantages the United States in Its International Relations, Hoover Inst. (Jun. 6, 2018), https://www.hoover.org/sites/default/files/research/docs/381100534-strengths-become-vulnerabilities.pdf [https://perma.cc/U4ZB-NHWY].

  164. Nowell, supra note 14, at 101.

  165. I imagine this would arise in a situation where evidence of criminal wrongdoing is visible on the phone without possession or access by government officials.

  166. Nowell, supra note 14, at 101; Di Jia et al., An Analysis and Categorization of U.S. Supreme Court Cases Under the Exigent Circumstances Exception to the Warrant Requirement, 27 Geo. Mason U. C.R. L.J. 37, 38 (2016).

  167. Cf. Nowell, supra note 14, at 103 (asserting that application of Riley would “effectively eliminat[e] the border search exception”).

  168. Vergara v. United States, 139 S. Ct. 70 (2018) (denying certiorari).

  169. In Molina-Isidoro, the Fifth Circuit side-stepped the issue and found that the officers’ acted with objectively reasonable belief that their actions did not violate the Fourth Amendment. This “good faith exception,” established in United States v. Leon, 468 U.S. 897, 918 (1984), excused the search of Molina-Isidoro’s phone. United States v. Molina-Isidoro, 884 F.3d 287, 290 (5th Cir. 2018).

  170. Jonathan Hafetz, Judge Kavanaugh’s Record in National-Security Cases, SCOTUSblog (Aug. 29, 2018, 11:02 AM), http://www.scotusblog.com/2018/08/judge-kavanaughs-record-in-national-security-cases/ [https://perma.cc/MRW4-R3TK].

  171. Orin Kerr, Judge Kavanaugh on the Fourth Amendment, SCOTUSblog (July 20, 2018, 6:16 PM), http://www.scotusblog.com/2018/07/judge-kavanaugh-on-the-fourth-amendment/ [https://perma.cc/YM4S-M6ZD].

  172. Klayman v. Obama, 805 F.3d 1148, 1148–49 (D.C. Cir. 2015) (emphasis added).

  173. Kerr, supra note 171.

  174. For example, Reagan appointee Justice Anthony Kennedy “earned a reputation as a careful judge of basically conservative leanings” before his appointment. Linda Greenhouse, Reagan Nominates Anthony Kennedy to Supreme Court, N.Y. Times (Nov. 12, 1987), https://www.nytimes.com/1987/11/12/us/reagan-nominates-anthony-kennedy-to-supreme-court.html [https://perma.cc/F5LE-Z74P]. Justice Kennedy became “a critical swing vote on the sharply polarized court . . . as he embraced liberal views on gay rights, abortion and the death penalty” while also siding with conservatives on voter rights, gun legislation, and campaign finance. Michael D. Shear, Supreme Court Justice Anthony Kennedy Will Retire, N.Y. Times (June 27, 2018), https://www.nytimes.com/2018/06/27/us/politics/anthony-kennedy-retire-supreme-court.html [https://perma.cc/KBR8-KW2W].