US Customs and Border Patrol policy permits seizure and search of cellphones

Dear Editor,
In May 2020, during that year’s election fiasco, a well-known attorney in Guyana indicated that it was believed that certain persons would pressure GECOM to prohibit the use of cellphones during the recount process. As such, I wrote about an important ruling from the US Supreme Court regarding searches and seizures of cellphones. See “Ban on cell phones is a gag on free speech during the electoral process” (SN, May 4, 2020).
In “Riley v California,” the court, in 2014, held that Police officers “must generally secure a warrant before conducting such a search” of a cellphone. Chief Justice John Roberts reasoned that a cellphone is “now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of the human anatomy.”
It was a rare victory against Police officers, who historically have dominated civilians despite protections by the Fourth Amendment to the US Constitution in regard to “unreasonable” searches and seizures of our persons and effects. This is noted here because, while the US has stronger institutions, both Guyana and the US have law enforcement structures that are deeply discriminatory, often resulting in a racialised kind of “Rule of Law” historically.
Invoking the Fourth Amendment, a number of mostly US citizens used this Riley case and sued the US Customs and Border Patrol (CBP) and the US Immigration and Customs Enforcement (ICE) for warrantless and lengthy seizures of their cellphones /devices. Long story short, they lost their case at the federal appellate level (US Court of Appeals for the First Circuit) in February 2021, and a further effort to get the country’s top court (US Supreme Court) to consider the matter was later denied.
While courts may differ as to what is required for “basic” versus “advance” searches, as identified in CBP policy, the general rule is that CBP (and ICE) policy allows for warrantless searches and detention of electronic devices at the border or ports of entry (e.g., airports). The rule falls under the old “border search” exception to the Fourth Amendment warrant requirement for searches or seizures.
Unlike Police officers, these “border”/customs agents have long held extraordinary authority in order to protect the US and its territorial integrity. They are not obligated to answer to any foreign sovereign as to their prescribed immigration procedures. They work in tandem with the US Department of State, which at the day’s end is the hand that gives and takes a visa to enter the US.
While CBP policy permits an officer to “detain electronic devices or copies of information contained therein for a brief reasonable period of time, to perform a thorough border search,” supervisory approval is needed for a number of stronger actions.
According to the Court of Appeals for the First Circuit, citing CBP policy, supervisory approval is required to detain devices after the owners’ “departure from the port or other location of detention”, or to extend detention beyond an initial 5 days, while a “third level of approval to extend a detention beyond fifteen days” is also needed.
Perhaps these tidbits of information may be instructive in the unfortunate situation that transpired (or allegedly transpired) against the Ministry of Home Affairs’ Permanent Secretary, Mae Toussaint Jr. Thomas, as reported in the press; and to others who travel frequently to the US, where thousands of phones have been, and continue to be, seized at ports of entry for all sorts of reasons, without anyone having to be on someone’s “list.”

Sincerely,
Rakesh Rampertab