United States v. Alisigwe, No. 24-960 (2d Cir. Sept. 17, 2026) (Menashi, C.J. (writing), joined by Gonzalez, D.J.; Lee, C.J., concurring in the judgment).

The Second Circuit recently affirmed Chinwendu Alisigwe’s bank-fraud and money-laundering convictions, holding that border agents who manually scrolled through his cellphone and photographed its content at JFK Airport needed no suspicion at all. The district court had held that cellphone searches are not routine and require reasonable suspicion, but found that it existed and thus upheld the search. Judge Menashi agrees that the search is valid, but rejects the lower court’s premise about reasonable suspicion. Joined by District Judge Gonzalez, he reasons that a cellphone is property; that border searches of property are routine; and thus that no individualized suspicion is required for the search. (A fortiori, Menashi also declares “wrong” four district court decisions in this circuit requiring a search warrant for cellphone searches at the border. Slip op. at 27).

Judge Lee concurred in the judgment, disagreeing with the majority on just about everything except the validity of the search (which, in her view, is lawful because there was reasonable suspicion that he committed fraud). NB: Alisigwe is represented by Federal Defenders of New York.

Relevant Facts

According to the opinion, Alisigwe, a lawful permanent resident, opened thirty-six bank accounts using fraudulent identification in the names of real people. After the United Kingdom seized a fraudulent passport bearing his photograph, the government opened a criminal investigation.

When he returned to JFK Airport from Nigeria in 2019, officers pulled him into secondary inspection, told him to unlock his phone, scrolled through his photo gallery, and photographed images of other people’s names, birthdates, and social security numbers. Two years later, officers did the same thing again and photographed an incriminating WhatsApp message.

Neither search involved a forensic extraction. Slip op. at 8 n.1. Alisigwe (and his phone) were released shortly after both searches.

Months later, he was arrested and charged with fraud and money laundering. The district court denied Alisigwe’s motion to suppress evidence obtained from the two border searches. It ruled that a cellphone search was non-routine and required reasonable suspicion. But it upheld the searches because border agents had such suspicion when they looked through his cellphone.

The Panel’s Ruling

On appeal, Alisigwe argued that Riley v. California, 573 U.S. 373 (2014), requires a warrant to search a cellphone, even at the border. He did not dispute the district court’s general reasonable-suspicion finding, but argued that only reasonable suspicion of a border crime, e.g. smuggling contraband, could justify a warrantless cellphone search. The panel disagreed and upheld his conviction.

For Judge Menashi, the border settles the question. Border searches “are reasonable simply by virtue of the fact that they occur at the border.” United States v. Ramsey, 431 U.S. 606, 616 (1977). Routine border searches require no suspicion at all.

Yes, non-routine searches require more, including reasonable suspicion. But according to Judge Menashi, “the label ‘non-routine’ should generally be reserved for intrusive border searches of the person (such as body-cavity searches or strip searches), not belongings.” United States v. Levy, 803 F.3d 120, 123 n.3 (2d Cir. 2015). Only “more invasive searches, like strip searches,” are non-routine. United States v. Irving, 452 F.3d 110, 123 (2d Cir. 2006). “Because a cellphone is property,” a manual search of it is routine and no suspicion is required. Slip op. at 5.

The panel distinguished Riley by its rationale. The search-incident-to-arrest exception exists to prevent harm to officers and destruction of evidence — and digital data poses neither risk. But the border exception serves a different interest: “preventing the entry of unwanted persons and effects.” United States v. Flores-Montano, 541 U.S. 149, 152 (2004). That interest applies fully to data that could be found on a phone. Alisigwe’s lists of stolen identities were “contraband whether in digital or physical form.” Slip op. at 20.

The panel expressly reserved whether “sophisticated forensic search methods, such as the off-site forensic analysis of the phone’s data, . . . might qualify as a nonroutine search requiring reasonable suspicion.” The searches here were brief, manual, on-site scrollings. Slip op. at 26 n.9.

Judge Lee concurred only in the judgment. While she agreed that neither a warrant nor probable cause was required, she would have held that cellphone searches are not routine and require reasonable suspicion. Concurrence at 4.

Practitioner’s Notes

We agree with Judge Lee that the majority’s efforts to distinguish Riley (and the privacy implications of the modern cellphone) and confine “non-routine” searches to bodily searches are unsuccessful. Given the issue’s significance, the panel opinion in Alisigwe is not likely the last word. (NB: Orin Kerr’s work is cited in both opinions. So here is his critique of the panel opinion: https://reason.com/volokh/2026/09/18/second-circuit-rejects-limits-on-border-searches-of-cell-phones/).

In the interim, practitioners have several lines of attack.

First, Judge Menashi’s suspicionless search ruling is unnecessary to the appeal’s outcome and thus arguably dictum (or, at least, not the most compelling authority). The district court found that general reasonable suspicion existed and Alisigwe did not challenge that finding on appeal; he argued that a search not related to a border crime required a warrant and probable cause. Having decided that any reasonable suspicion sufficed, the panel did not have to decide whether a search with no suspicion is permissible. Judge Lee makes this point — the question “did not have to be ruled upon in this case.” Concurrence at 1-2 n.1 (citing INS v. Bagamasbad, 429 U.S. 24, 25 (1976)).

Second, the holding is limited to a brief, on-site scrolling of a cellphone. The officers asked Alisigwe to unlock his phone (which he did), and then scrolled through it and took some photographs. They then let him enter the country, with his phone. The panel did not decide whether a forensic extraction, off-site analysis, or prolonged seizure of a device is routine. Slip op. at 26 n.9. (Immigration status may also matter. The majority relied on Alisigwe’s LPR status, reasoning that the criminal investigation “also determined whether he was entitled to enter the country.” Slip op. at 21. For a citizen, that interest doesn’t exist.)

Finally, the majority opinion downplays disagreement among the courts on several critical issues. Yes, it resolves an intra-circuit district court split – a warrant is not required for a cellphone search at the border. Slip op. at 27. And, true, no circuit requires individualized suspicion for a manual device search at the border. But that uniformity masks disagreement at three other levels.

Split over scope. The Ninth Circuit holds that a border search of a phone, “whether manual or forensic, must be limited in scope to a search for digital contraband,” and that a search for evidence of crime falls outside the exception. United States v. Cano, 934 F.3d 1002, 1018 (9th Cir. 2019). The Fourth Circuit requires a nexus to the border-protection rationales that justify the exception. United States v. Aigbekaen, 943 F.3d 713, 721 (4th Cir. 2019). Part D of Alisigwe rejects any such limit and thus creates a circuit split.

Split over forensic searches. The First, Fourth, and Ninth Circuits require reasonable suspicion for forensic searches of a cellphone at the border. Alasaad v. Mayorkas, 988 F.3d 8, 20-21 (1st Cir. 2021); United States v. Kolsuz, 890 F.3d 133, 145-46 (4th Cir. 2018); United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc). The Eleventh Circuit requires none. United States v. Touset, 890 F.3d 1227 (11th Cir. 2018). That is a live conflict that Footnote 9 recognizes.

Split over “routine.” The Fourth Circuit reached the same result on manual searches two months ago (i.e., no suspicion required), but did so by balancing intrusiveness and expressly preserving forensic searches as non-routine. United States v. Belmonte Cardozo, 181 F.4th 461 (4th Cir. July 13, 2026). Because non-routine searches typically invade bodily integrity, the court said, “there’s a ‘high bar’ to clear before a property search becomes nonroutine.” Alisigwe rests instead on a near-categorical rule — property searches are routine and “non-routine” means the body — that only the Eleventh Circuit shares.

Judge Menashi’s confining of non-routine searches to physical intrusions on the body is particularly unpersuasive and misreads circuit precedent. Irving held that “the level of intrusion into a person’s privacy” determines whether a search is routine. 452 F.3d at 123. The panel turned that standard of privacy into a categorical rule about the body with little reasoning. Judge Lee states the obvious: “Intrusiveness can occur not just from the nature of the search itself but from the breadth of what is recovered from the search.” Concurrence at 9.