In September the U.S. Court of Appeals for the Second Circuit held that a border agent may scroll through a traveler’s phone without a warrant and without any suspicion. United States v. Alisigwe, No. 24-960 (2d Cir. Sept. 17, 2026). The search does not have to serve any border-related purpose, such as intercepting contraband or deciding whether a traveler may enter the country.

Some circuits impose a purpose limit of that kind. The Second Circuit does not. An officer here may read a phone looking for evidence of any crime, and it makes no difference that another agency asked him to do it as part of a domestic investigation.

The facts were unhelpful to the traveler. Chinwendu Alisigwe opened 36 bank accounts between 2017 and 2020 using fraudulent passports and driver’s licenses.

In 2019, Homeland Security Investigations agents had Customs and Border Protection route him to secondary inspection at JFK. An officer told him to unlock his phone, scrolled through it, and photographed images of other people’s names, birthdates, and Social Security numbers. Officers did the same thing in 2021. Neither officer extracted the phone’s contents. Alisigwe was convicted of conspiracy to commit bank fraud, bank fraud, and conspiracy to commit money laundering and sentenced to five years.

Two features of the case drove the panel’s reasoning. The lists of stolen personal information on the phone were, in the court’s words, “contraband whether in digital or physical form.” That gave the government the same interest in intercepting the data as it has in intercepting smuggled goods.

Alisigwe was also a lawful permanent resident with a pending naturalization application, so the panel said the investigation into his conduct “also determined whether he was entitled to enter the country.” His convictions were aggravated felonies that made him deportable and inadmissible.

Neither feature carries over cleanly to the cases white-collar defense lawyers handle. Emails arranging a bribe and spreadsheets reflecting a revenue pull-forward are evidence of crimes. They are not unlawful to possess, and the government has no interest in keeping them out of the country, particularly when the same data sits on a domestic server.

Deportability is a different story. Many fraud offenses are aggravated felonies, so a client who is not a citizen may face the same exposure the panel relied on. Where the traveler is a citizen, that half of the reasoning has nothing to work with. The government cannot refuse entry to its own citizens.

Three arguments follow for defense counsel. One is that the panel’s rejection of a purpose limit was unnecessary to the result and should not control a case built on ordinary evidence. That argument faces long odds, though it can be pressed as a narrowing argument.

Another is the question the panel left open: whether a forensic extraction, as opposed to a scroll, requires reasonable suspicion. A client whose device went to a laboratory has the most to gain there. The third is the Supreme Court, where a petition raising the warrant question is pending. That gap between the panel’s reasoning and the ordinary white-collar case also shapes what counsel should demand in discovery and what companies should tell traveling employees.

What the Second Circuit Held

The border search exception is one of the oldest exceptions to the warrant requirement, and an international airport counts as the functional equivalent of the border. It reaches the traveler and the property he carries.

Property searches are routine, so an officer can open a suitcase and read what is inside without any suspicion. Searches of the person become non-routine as they grow more invasive, and a strip search requires reasonable suspicion.

Alisigwe argued that Riley v. California, 573 U.S. 373 (2014), which generally required a warrant to search an arrestee’s phone, should carry over. The panel gave two reasons for refusing. A phone is property, so scrolling through it is a routine property search. And Riley construed the search-incident-to-arrest exception, which rests on officer safety and evidence preservation. Neither concern touches the sovereign’s authority over what crosses its border.

The panel went further. It held that the exception is not confined to contraband or to border-related offenses, reasoning that “[s]earching for evidence of criminality among those entering the country is an exercise of that authority.”

Under United States v. Irving, 452 F.3d 110 (2d Cir. 2006), and United States v. Levy, 803 F.3d 120 (2d Cir. 2015), pretext and investigative motive are irrelevant. The opinion rejected four district court decisions in the circuit that had come out the other way.

Two other features deserve attention. Footnote 9 reserves the question whether a forensic search requires reasonable suspicion, because officers here only scrolled through the phone and never extracted its contents. And Judge Lee concurred only in the judgment. She would require reasonable suspicion, because a phone “is not a suitcase.”

The practical stakes are large. CBP searched the electronic devices of 55,318 travelers in fiscal year 2025, and 13,590 of those travelers were U.S. citizens. The panel engaged Professor Orin Kerr’s argument that the ease of moving data over the internet “underscores that the searches are designed to identify wrongful actors, not to find contraband,” and answered that identifying wrongful actors is itself a border interest.

The Role of Contraband and Deportability

Start with admissibility, the half of the reasoning closest to the purpose of the exception. The government controls who comes into the country, and deciding whether a traveler qualifies may require knowing things about him. That is why investigating Alisigwe’s fraud was also an inquiry into whether he could enter at all.

Contraband is the harder half. The panel treated lists of stolen personal information as contraband by analogy to a notebook of names, Social Security numbers, and birthdates that the Eleventh Circuit had described the same way. Whether other corporate data fits that description is unsettled. Export-controlled technical data and trade secrets come closest, because the data is arguably the regulated item itself. Records of sanctions or customs violations are evidence of offenses defined by the movement of goods across the border. Emails about bribery or insider trading are different. Nothing about them gives an officer a border reason to open the mail application.

A purpose limit would do little for an export-control or sanctions client, whose conduct is border conduct. It would help most where the phone holds nothing a contraband search could legitimately target, such as deal correspondence and privileged memoranda.

A purpose limit also would not require officers to ignore what they see along the way. Officers searching for contraband may seize evidence of other crimes they come across, and the Alisigwe panel cited that authority approvingly.

What a purpose limit would constrain is how far an officer may go looking. A search aimed at contraband images belongs in the photo gallery and the file directories. Scrolling months of email threads is harder to defend as a hunt for stolen identity documents, and harder still when the agent who requested the inspection is running a securities investigation and said so in the lookout request.

Where the Gap Still Helps

The Dictum Argument for Manual Searches. A holding is the rule necessary to decide the case on its facts, and expansive phrasing does not expand it. Alisigwe would have come out the same way under any circuit’s purpose limit. The data was digital contraband, which satisfies the Ninth Circuit, and the search bore on Alisigwe’s admissibility, which satisfies the Fourth Circuit’s border-nexus requirement. Rejecting a purpose limit was not necessary to affirm, and no phone holding ordinary evidence of a domestic offense was before the panel.

Judge Lee supplies the best support for that reading. The district court had held that a phone search requires reasonable suspicion and found that both searches had it. Alisigwe never challenged that finding, arguing only that the searches required a warrant and probable cause. So, as Judge Lee put it, whether any individualized suspicion was necessary “did not have to be ruled upon in this case.”

The government will respond that the panel broke no new ground. It treated the purpose question as settled by Irving, which held that pretext does not determine a border search’s validity, and by Levy, which rejected an attempt to confine CBP searches to the crimes CBP is authorized to investigate. On that reading the panel applied binding precedent.

So we would not lead a suppression motion with this argument. District judges rarely treat a recent panel ruling as dictum. Press it as a narrowing argument instead: concede the holding, identify what the panel decided on the facts before it, and explain why a citizen’s phone full of deal correspondence presents a question the panel did not face. That preserves the issue for appeal.

Footnote 9 and Forensic Searches. When the panel reserved the forensic question, it cited United States v. Kolsuz, 890 F.3d 133 (4th Cir. 2018), which treats a forensic phone search as non-routine and requires some individualized suspicion, while leaving open whether reasonable suspicion is enough or a warrant based on probable cause is required. That citation carries consequences the commentary has not noticed.

The Fourth Circuit did not stop at Kolsuz. In United States v. Aigbekaen, 943 F.3d 713 (4th Cir. 2019), it required that the suspicion relate to an offense with a border nexus. If the Second Circuit follows that line, the purpose limit it rejected for manual searches returns for forensic ones.

The Eleventh Circuit took the other path, requiring no suspicion even for a forensic search.

The panel identified the obstacle itself. A suspicionless manual scroll can supply the reasonable suspicion needed for a forensic search, which the panel said may often deprive the reserved question of practical significance. The argument is still worth making, because this is the one place where the Second Circuit has said the question is open.

The Supreme Court. A pending certiorari petition, Anibowei v. Blanche, No. 26-208, asks whether a border search of a phone requires a warrant at all. George Anibowei is an immigration lawyer and a naturalized citizen whose phone agents searched five times. The first time they copied everything, including confidential client communications. His petition describes a six-to-two circuit split.

The government’s response is due Oct. 29, 2026, so no ruling will come before then. Because the question presented is the warrant question, the Court could resolve the case without reaching the purpose limit.

Building a Record on Method and Purpose

Two categories of discovery follow. The first is method: whether the search was a scroll, a copy, or a laboratory extraction, and how long the device was out of the traveler’s hands. That determines whether footnote 9 is in play.

The second is purpose and scope: who asked for the search, what they said they were looking for, and where on the device the officer went. Lookout records and interagency communications bear on both.

One caveat on preserving the issue. Under Davis v. United States, 564 U.S. 229 (2011), an officer’s objectively reasonable reliance on binding appellate precedent defeats suppression. Manual cellphone searches of the kind Alisigwe approved, conducted in this circuit after Sept. 17, 2026, will likely be insulated even if the Supreme Court later adopts a purpose limit. The live fights are over earlier searches, forensic searches, and searches the panel’s reasoning does not reach.

Most of the commentary tells executives to carry less data when they travel. That advice is sound, with one caveat about timing. Wiping a phone during an inspection can be a crime. Samuel Tunick, a U.S. citizen, allegedly gave CBP a duress passcode that wiped his phone at the Atlanta airport in January 2025, and he was indicted under 18 U.S.C. §2232, which bars destroying property to prevent a seizure.

Reducing what sits on a device before a trip is ordinarily lawful. The exception has nothing to do with the border. A client who knows about a federal investigation and deletes records to keep them from the government violates 18 U.S.C. §1519 whether or not he boards a plane. So set travel-device rules before any investigation exists and stop applying them once a hold is in place.

Conclusion

The Second Circuit upheld the search of Alisigwe’s phone because he carried digital contraband and because the investigation bore on whether he could enter the country at all. A citizen executive carrying deal correspondence presents neither. No district judge is likely to narrow Alisigwe on that basis. But it is the reason to litigate the searches the panel did not address: the forensic extraction, the search that ranged past anything its stated purpose could justify, and the traveler the government has no power to exclude.

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This article first appeared in the October 15, 2026, edition of the “New York Law Journal” © 2026 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or reprints@alm.com.