George Anibowei v. Alejandro N. Mayorkas, Secretary of Homeland Security, et al.

This case presents a sharp, recognized, and enduring circuit conflict regarding the application of the Fourth Amendment to cellphone searches at the United States border. This question is of significant importance, evident from the United States’ petition to this Court for review in United States v. Cano, No. 20-1043. Petitioner, a Texas immigration attorney, has faced repeated searches of his cellphone without a warrant. Border agents searched his phone every time he traveled internationally for several years, no fewer than four times while this lawsuit was pending. The first search was a “forensic” search in which government agents downloaded and kept the data on his phone, including communications protected by the attorney-client privilege. Later searches were “manual” searches in which government agents scrolled through text messages, emails, and other private information on the phone by hand. This pattern of searches has compelled petitioner to refrain from carrying his work phone during international travel for over four years now. Four years ago, petitioner sought a preliminary injunction that would accomplish two key objectives: (1) prohibit the defendants from conducting additional warrantless searches of his cellphone, and (2) mandate the destruction of the data unlawfully extracted from the phone. The district court denied the motion, and the Fifth Circuit affirmed. The question presented is: Whether the Fourth Amendment’s protection against unreasonable searches and seizures entitles petitioner to a preliminary injunction against additional warrantless searches of his cellphone when he crosses the United States border. (i)