Can Border Agents Search Your Phone at Miami International? Florida's Eleventh Circuit Rule and the New Second Circuit Ruling

If you fly into Miami, Fort Lauderdale, or Palm Beach from anywhere outside the country, a customs officer can take your phone, plug it into forensic software, and copy everything on it. No warrant. No suspicion. In Florida, that is settled law, and a federal appeals court in New York just moved closer to the same position.

For most travelers this is an abstract privacy debate. For anyone who is the subject of a federal investigation, it is a practical problem. Agents know that the border is the one place they can read your messages without a judge's signature, and they plan around it.

In Florida, a customs officer can take a returning traveler's phone and copy everything on it. No warrant. No suspicion.

Key Takeaways

• On September 17, 2026, the Second Circuit held border officers may manually search a traveler's phone with no warrant and no suspicion.
• The Eleventh Circuit, which covers Florida, goes further: its 2018 Touset decision permits even forensic phone searches at the border without suspicion.
• Customs authority under 19 U.S.C. § 1582 lets agents search travelers and baggage; courts treat phones and laptops as baggage.
• Evidence from a border phone search can support charges under 18 U.S.C. § 1347 or § 1343 without any search warrant.
• If you are under federal investigation, what is on your phone when you travel is a defense decision, not a packing decision.

What the Second Circuit Decided

In United States v. Alisigwe, decided September 17, 2026, a divided Second Circuit panel affirmed a fraud conviction built in part on a phone search at JFK. Border officers asked the returning traveler, a lawful permanent resident already suspected of fraud, to unlock his phone. They scrolled through it and found records tied to the scheme.

The court held that a phone is property, property at the border can be searched without suspicion, and Riley v. California does not change the analysis. Riley required a warrant to search a phone incident to arrest. The Second Circuit said the border exception rests on a different rationale and survives. One judge concurred, agreeing no warrant was needed but arguing that some level of suspicion should be.

The Alisigwe opinion addressed only a manual search, an officer scrolling through the phone using its own apps. The forensic question it left open is already answered in Florida.

The opinion addressed only a manual search: an officer looking through the phone using its own apps. It left open whether a forensic search, where agents attach equipment and extract the full contents, requires more.

Florida Is Already at the Far End of the Split

That open question is closed in Florida. In United States v. Touset, 890 F.3d 1227 (11th Cir. 2018), the Eleventh Circuit held that no suspicion is required for a forensic search of electronic devices at the border. The same court had already held that no warrant is required.

Other circuits disagree. The Fourth Circuit in United States v. Kolsuz, 890 F.3d 133 (4th Cir. 2018), required at least reasonable suspicion for a forensic phone search. The Ninth Circuit in United States v. Cano, 934 F.3d 1002 (9th Cir. 2019), required reasonable suspicion and limited forensic searches to looking for digital contraband.

So a traveler landing at Miami International has less constitutional protection for the contents of a phone than a traveler landing at Dulles or LAX. A cert petition now pending before the Supreme Court asks the Justices to settle the issue. Until they do, the Eleventh Circuit rule governs every prosecution in the Southern District of Florida, the Middle District, and the Northern District.

CBP's own Directive 3340-049A is narrower than the Eleventh Circuit. It requires reasonable suspicion or a national security concern, plus supervisory approval, before an officer performs an advanced search. That is agency policy, not a constitutional floor. A violation of the directive does not, standing alone, require suppression.

What the Government Is Building

Border phone searches are not about contraband in most fraud cases. They are an evidence-gathering tool. Homeland Security Investigations, the FBI, and HHS-OIG can place a lookout on a traveler. When that person re-enters the country, CBP searches the phone and shares what it finds with the case agents.

For a federal healthcare fraud attorney or Medicare fraud defense lawyer, the pattern is familiar. It shows up in cases involving marketers, lab owners, and DME suppliers who travel internationally. Agents want text threads about patient referrals, payment apps showing kickbacks under 42 U.S.C. § 1320a-7b, and messaging apps that never touch a company server. A forensic extraction captures deleted messages, location history, and cloud tokens.

A lookout on a traveler turns re-entry into an evidence grab. A forensic extraction captures deleted messages, location history, and cloud tokens, and CBP shares it with the case agents.

The same is true in wire fraud, crypto, and federal cybercrime defense work. A phone is often the only place where the whole scheme shows up in one view.

Exposure and Charges That Grow Out of a Border Search

The search itself is not a crime to resist, but the traveler's conduct around it can create new exposure. The authority comes from 19 U.S.C. § 1582 and related customs statutes. Refusing to unlock a device is not a separate federal crime for a U.S. citizen, but CBP can detain the phone and send it to a lab.

Three statutes come up repeatedly. Lying to a CBP officer about travel, business, or who owns a device is a false statement under 18 U.S.C. § 1001, carrying up to five years. Wiping a phone before a trip because you expect an investigation can be charged as destruction of records under 18 U.S.C. § 1519, carrying up to 20 years. And the content itself becomes evidence for the underlying charge, whether that is healthcare fraud under 18 U.S.C. § 1347 or wire fraud under 18 U.S.C. § 1343, each carrying up to 20 years per count before sentencing guideline loss enhancements.

The obstruction count is the one people do not see coming. A clean phone is not a crime. A phone deliberately cleaned after you learned about a grand jury subpoena can be.

Critical Mistakes People Make Early

The most common mistake is traveling as though nothing has changed. A person who has received a target letter, whose business has been served with a grand jury subpoena, or whose colleagues have been interviewed by agents should assume a lookout may exist.

The second mistake is talking. Secondary inspection feels administrative, and people answer questions about their companies to be helpful. Those answers are recorded, and an FBI interview attorney would never let a client give the same statements in a conference room without preparation.

The third is self-help: deleting apps, factory-resetting devices, or handing a phone to a relative. Each of these can turn a defensible fraud case into a far worse obstruction case.

The fourth is assuming privilege will protect you. If your phone holds communications with your lawyer, say so and ask for the privilege procedure CBP policy provides. Do not assume the officer will segregate that material on their own.

A Strategic Defense Approach

Pre-indictment defense starts before the trip. If you are the subject of a federal investigation, counsel should review travel plans, decide which devices travel, and document that decision in a way that cannot later be characterized as concealment. Preserving data under a litigation hold while traveling with a separate device is lawful. Destroying data is not.

"A clean phone is not a crime. A phone deliberately cleaned after you learned about a grand jury subpoena can be."— Aaron M. Cohen, AMC Defense Law

If a search has already happened, the defense has work to do. The request for a supervisory approval record, the chain of custody for the extraction, the scope of what was copied, and whether agents used the border as a pretext for an investigation already underway all matter. Under Eleventh Circuit law, suppression is difficult, but the record often supports other arguments: scope, retention, privilege taint, and credibility of the agents at trial.

A border search can also be a signal. It often tells a white collar defense attorney that a case is further along than the client believed, which changes the timing on proffer decisions and pre-charge negotiation with the AUSA.

Why Timing Matters Now

The Supreme Court could act on the pending petition this term. If it grants review and adopts a warrant or suspicion rule, it may reshape how evidence from Florida border searches is challenged, including in pending cases. Defense lawyers should preserve the objection now so a client can benefit later.

The holiday travel season is two months away. If you are under investigation and planning to leave the country, the decision about what you carry should be made with counsel before you book the ticket.

Common Questions

Under Federal Investigation and Planning International Travel?

Aaron M. Cohen is a federal criminal defense attorney whose firm, AMC Defense Law, advises individuals and business owners who are the subject of a federal investigation in Miami, Fort Lauderdale, Boca Raton, and throughout the Southern District of Florida, and represents clients in federal matters nationwide. If you have received a target letter, a subpoena, or a visit from agents, or if your phone has already been searched at the border, contact the firm for a confidential consultation before your next trip.

If you or your loved ones have been arrested or are under federal investigation, call Aaron M. Cohen, 24 hours a day to get help.

The decision about what you carry across the border should be made with counsel before you book the ticket.