By Joshua J. Horowitz · October 2026
On September 17, 2026, the Second Circuit decided United States v. Alisigwe, No. 24-960, and held that the government needs no warrant and no suspicion at all to manually search a traveler’s cellphone at the border. The panel treated a phone like any other piece of luggage: property that can be examined simply because it is entering the country. It also declared that several district court decisions in the Southern and Eastern Districts of New York requiring a warrant for border phone searches “are wrong.”
That holding is now the law at JFK, LaGuardia, and every other port of entry in New York, Connecticut, and Vermont. But the most consequential part of the opinion may be a question the Second Circuit expressly declined to answer, buried in its ninth footnote.
What the Second Circuit decided, and what it didn’t
Mr. Alisigwe, a lawful permanent resident, was stopped twice at JFK by agents who were already investigating him for bank fraud. On the first stop, “[a]n officer instructed Alisigwe to unlock his cellphone, which Alisigwe did.” On both occasions, officers then scrolled through the phone and photographed what they saw, the first time using an officer’s own phone. The panel was careful to note that the officer “did not perform a cell phone extraction,” which would have meant connecting the phone to a computer and downloading data that cannot be seen by scrolling.
That distinction is where the Second Circuit stopped. Because the case involved only a manual review, the panel said it “need not decide whether the use of ‘sophisticated forensic search methods’” might qualify as a nonroutine search requiring reasonable suspicion. Other circuits have split on exactly that question. The Fourth and Ninth Circuits have required reasonable suspicion for forensic searches of devices at the border; the Eleventh Circuit has held that they require none. The Second Circuit left the question open, while signaling some skepticism about drawing lines between kinds of property searches.
Nor did the Second Circuit address whether agents can compel a traveler to unlock a phone. Mr. Alisigwe unlocked his phone when instructed, and the opinion does not discuss what could have happened had he refused.
A manual scroll is not a small intrusion
There is a significant gap between a manual scroll and a full forensic extraction. But a manual scroll can still obtain a significant amount of information from a phone: contacts, call history, messages, photos, and, depending on the phone’s settings, even recently deleted messages and photos. For most people, that is already a detailed picture of their relationships, their communications, and their lives.
What an extraction adds
A forensic extraction goes much deeper. It can reach the phone’s system files, which may contain, for example, records of incoming notifications for messages that were deleted long ago, along with all kinds of other system information about how and when the device was used. It also allows full examination of the phone’s database files. Most phone applications store their data in some kind of SQLite database, and a full extraction lets the examiner look through those databases directly, well beyond anything visible on the screen.
In other words, the difference between scrolling and extracting is not only a matter of volume. An extraction can surface information the user believes is gone, and information the user never knew the phone was keeping.
The slippery slope in footnote 9
The same footnote contains a sentence that deserves more attention than it has received. The Second Circuit observed that the forensic-search question “may often lack practical significance because a suspicionless manual search might establish reasonable suspicion for a forensic search.”
That should concern every traveler. If a suspicionless scroll can supply the basis for a forensic search, or for a warrant to search the phone’s full contents, then any suspicion requirement for the deeper search does very little work. It is a very slippery slope to allow a suspicionless search by the government to develop the facts that then support a warrant application. It renders the requirement to get a warrant meaningless: if agents can look through your phone without any suspicion at all, and then use what they find to get a warrant to search everything on it, the warrant becomes a formality.
The scenario is not hypothetical. It allows agents to say, in effect: “We think that person is doing something wrong, but we have no proof of it whatsoever. Let’s look through his phone when he lands at JFK. We can scroll through it, and whatever we find, we can use to get a warrant to search his phone.” The majority opinion confirms that a border search may be pretextual and may serve another agency’s criminal investigation, which is what happened in Alisigwe itself.
A different view on the panel
Judge Eunice Lee concurred only in the judgment. She agreed that no warrant or probable cause was required, but rejected the conclusion that such searches require no suspicion at all, writing that a cellphone “is not a suitcase” and that a search of one is “much closer on the spectrum to a strip search than it is to the search of luggage.” Her opinion, together with the split among the circuits on forensic searches, suggests that this area of the law is not settled.
What this means in practice
For anyone charged in a case that began with a phone search at the border, the sequence of events matters:
- Who directed the secondary inspection, and whether an investigation was already open.
- What the officer actually viewed and photographed during the manual review, and how it was documented.
- Whether a forensic extraction followed, when, and on what basis.
- Whether any later warrant application relied on what was found during the suspicionless scroll.
The forensic-search question remains open in the Second Circuit, and arguments about it should be preserved. For travelers, the practical lesson is simpler: at the border, anything on the phone that can be reached by scrolling should be assumed to be reviewable.
This article is for general information and is not legal advice. Reading it does not create an attorney-client relationship. Quotations are from the slip opinion in United States v. Alisigwe, No. 24-960 (2d Cir. Sept. 17, 2026).