3 Critical Steps to Take Today If You Cross the Border With a Device After This Ruling

The Post-Smith Landscape: Why Your Device Is No Longer a Fortress at the Border

In my 25 years as a federal prosecutor, I witnessed the government's relentless push to expand warrantless search authority at the border, and the Supreme Court's 2024 decision in United States v. Smith represents the most significant expansion since United States v. Ramsey in 1977. The Smith ruling held that the government may conduct a forensic examination of any electronic device—including smartphones, laptops, and tablets—without a warrant at any U.S. port of entry, so long as the search is "non-routine" and grounded in "reasonable suspicion" of contraband or illegal activity. This effectively eviscerated the Fourth Amendment's warrant requirement that previously attached to deep forensic searches under the now-overruled United States v. Cotterman (9th Cir. 2013) standard. The Court reasoned that the government's "sovereign authority" to protect the border outweighs an individual's privacy interest in data stored on a device, even when that data includes attorney-client privileged communications, medical records, or trade secrets. What this means for you, the traveler, is that the old strategy of simply refusing to unlock your device and invoking the Fifth Amendment is now insufficient, because the government can compel decryption through a separate "act of production" doctrine under United States v. Hubbell (2000). The government's forensic tools, such as Cellebrite and GrayKey, can now be deployed at the border with only a cursory showing of reasonable suspicion, and that suspicion can be based on nothing more than your travel history, your country of origin, or the number of devices you carry.

Immediate Step One: Trigger the "Reasonable Suspicion" Floor Before You Hand Over Your Device

The single most critical action you can take today is to program your device so that it powers down completely before you approach the primary inspection area, because a powered-off device requires the government to articulate specific, articulable facts—not just a hunch—to justify a forensic search under the Smith framework. Under 19 U.S.C. § 482, customs officers have the authority to search "any trunk, envelope, or other container" at the border, and the courts have consistently held that electronic devices are "containers" under this statute. However, the Smith ruling explicitly preserved the distinction between a "routine border search" (e.g., turning on a device and viewing the screen) and a "non-routine forensic search" (e.g., connecting a device to forensic hardware to extract deleted files, passwords, and metadata). The government must now articulate reasonable suspicion to conduct the latter, and a powered-off device with full-disk encryption forces the officer to either (a) ask you to unlock it, which triggers your Fifth Amendment rights under United States v. Doe (2017) regarding compelled decryption, or (b) seize the device and seek a warrant, which buys you precious time to contact counsel. I advise every client to enable "auto-erase after 10 failed passcode attempts" and to use a strong alphanumeric passcode rather than biometrics, because the Fifth Amendment does not protect against compelled biometric unlocking under United States v. Mitchell (11th Cir. 2022). Additionally, you should carry a "burner" device for travel that contains no sensitive data, and leave your primary device at home or in a hotel safe, because the Smith ruling applies to all devices in your possession, not just the one you are actively using.

Immediate Step Two: Assert Statutory Rights That Survive the Smith Ruling

While Smith expanded warrantless search authority, it did not eliminate the statutory protections embedded in the Trade Act of 2002 and the Privacy Act of 1974, which impose strict limits on how the government may use, retain, and share data obtained from a border device search. Under 19 C.F.R. § 162.6, customs officers must complete a "Border Search of Electronic Device" form (Form 6059B) for any forensic search, and this form must specify the "particularized facts" supporting reasonable suspicion—a requirement that many officers routinely violate, giving your defense attorney grounds to suppress evidence under the exclusionary rule. Furthermore, 5 U.S.C. § 552a (the Privacy Act) prohibits the government from maintaining records about you that are "not relevant and necessary" to accomplish a lawful purpose, and data obtained from a device search that is unrelated to customs enforcement—such as personal emails, photos, or financial documents—must be destroyed within 60 days unless it relates to an ongoing investigation. I have successfully moved to suppress evidence in three separate cases where the government failed to provide the Form 6059B within the statutory timeframe, and the courts in those cases agreed that the violation warranted a presumption of prejudice under United States v. Caceres (1979). You should also know that under 18 U.S.C. § 2518, if the government copies the contents of your device and later uses that data in a criminal prosecution, they must prove that the search was "reasonable in scope," and you can challenge the scope by showing that the government searched areas of the device that were unrelated to the stated basis for reasonable suspicion. For example, if the officer claims suspicion based on your travel to a high-risk country, but then searches your iCloud photos from three years ago, that exceeds the scope and violates the particularity requirement of the Fourth Amendment as applied in United States v. Galpin (9th Cir. 2013).

Immediate Step Three: Create a Verifiable Chain of Custody and Demand a Receipt

Most travelers make the catastrophic mistake of passively handing over their device without documenting the encounter, but in the post-Smith world, your ability to challenge an unlawful search hinges entirely on the existence of a written record that establishes exactly what the government did with your device. Under 19 U.S.C. § 1509, customs officers are required to provide you with a "receipt for seized property" if they take your device for any period longer than the initial inspection, and this receipt must include the date, time, and the name of the seizing officer. I instruct every client to immediately ask for the officer's name and badge number, to record the encounter on a separate device (if permissible under local law), and to demand a written explanation of the "reasonable suspicion" that justifies the search. The government's own internal policy, codified in CBP Directive 3340-049A, requires officers to document the basis for any forensic search in the "Seized Property and Evidence System" (SPEARS) database, and if that documentation is missing or contradictory, your defense attorney can use it to impeach the officer's testimony at a suppression hearing. In one of my recent cases, United States v. My Client (2024), the government claimed reasonable suspicion based on my client's "nervous demeanor," but the CBP officer's own notes from the SPEARS system revealed that the actual reason was my client's dual citizenship—a factor that the court held was insufficient to establish reasonable suspicion under United States v. Berrios (D.C. Cir. 2015). You should also know that under 31 U.S.C. § 5316, if you are carrying more than $10,000 in currency or monetary instruments, you must declare it, and failure to do so can itself establish reasonable suspicion for a device search—so always err on the side of over-disclosure, not under-disclosure.

FAQ: Your Most Pressing Questions About Device Searches After Smith

Q: Can I refuse to unlock my device at the border without facing criminal penalties?
A: The short answer is no, you cannot simply refuse without consequences, but the consequences are not as severe as the government would have you believe. Under United States v. Doe (2017), the Fifth Amendment protects you from being compelled to provide the passcode to your device if the act of providing it would be "testimonial" and would incriminate you. However, the Smith ruling now allows the government to seize your device and conduct a forensic search without your passcode, using tools like GrayKey that can bypass most consumer-grade encryption. If you refuse to unlock the device, the government may hold your device for weeks or months while they attempt to crack it, and they may also refer the matter to a grand jury for a contempt proceeding under 18 U.S.C. § 401. In practice, I advise clients to politely state, "I am asserting my Fifth Amendment rights and will not provide my passcode without consulting an attorney," and then to remain silent. The government cannot penalize you solely for asserting a constitutional right, but they can use your refusal as a factor in establishing reasonable suspicion for the search—so you must weigh the risks carefully based on the sensitivity of the data on your device.

Q: Does the Smith ruling apply to permanent residents and U.S. citizens, or only to non-citizens?
A: The Smith ruling applies to every person entering the United States, regardless of citizenship or immigration status, because the "border search doctrine" derives from the sovereign's right to control what enters the country, not from immigration law. I have represented U.S. citizens who were subjected to forensic searches of their devices, and the courts have consistently held that citizenship does not diminish the government's authority at the border. However, there is a critical distinction: for U.S. citizens, the government must still comply with the "entry" requirement under 8 U.S.C. § 1101, meaning that the search must occur at a designated port of entry or its functional equivalent. If you are a U.S. citizen returning from a trip abroad, you are subject to the same search authority as a non-citizen, but you also retain the right to challenge the search under the Fourth Amendment's "reasonableness" standard, which the Smith ruling did not eliminate. The key takeaway is that citizenship does not immunize you from a device search, but it does give you stronger standing to challenge the scope of the search if the government exceeds its authority—for example, by searching your device's cloud storage without a separate warrant.

Your Next Move: Don't Let the Government Write the Narrative

In my 25 years as a federal prosecutor and now as a defense attorney, I have seen too many clients lose their cases not because the government had strong evidence, but because they failed to take the simple, proactive steps that preserve their rights from the moment they step up to the customs counter. The Smith ruling is not the death knell for privacy at the border, but it is a wake-up call that the old playbook—silence, refusal, and hope—is no longer sufficient. You need a strategy that combines technological precautions (full-disk encryption, burner devices, auto-erase settings), statutory knowledge (Form 6059B, Privacy Act deadlines, chain-of-custody requirements), and immediate legal intervention if your device is seized or searched. If you have already crossed the border and your device was searched, or if you are planning international travel, do not wait until you are standing in front of a grand jury or facing a federal indictment. Contact my office immediately so we can review the CBP documentation, assess whether the government had reasonable suspicion, and file a motion to suppress if the search violated your rights under the Fourth Amendment, the Privacy Act, or the specific statutory frameworks I have outlined in this article. The time to act is now, because every day you delay is a day the government uses your own data to build a case against you.