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An airport search, a wiped phone and a potential test of Fourth Amendment protections

By CNN

(CNN) — In a small room at the Atlanta International Airport, without a warrant and ignoring his protest and requests for his attorney, a left-wing activist and US citizen says Border Patrol officers started to search his devices, luggage and diary.

Sam Tunick, involved in the Stop Cop City movement, which opposed an 85-acre law enforcement training center in Georgia that opened in April 2025, was returning from a vacation in the Dominican Republic in January of that year when Border Patrol officers, coordinating with the FBI, pulled him aside, according to his lawyers.

After refusing to answer questions, the officers began searching Tunick and the items eventually asking for access to his phone, Tunick and the prosecutors say. According to prosecutors, Tunick then gave officers a passcode that wiped the contents of the device.

Tunick was charged that November with a single count of destroying property to prevent seizure. He has pleaded not guilty and has not been charged with any additional crimes.

Experts told CNN the case could be a toehold to challenge how Fourth Amendment protections, which generally prohibit search and seizures without probable cause, are weakened at the US border and entry points into the US, including international airports.

“It’s not that the Fourth Amendment doesn’t apply at the border,” white-collar criminal defense attorney Paul Calli told CNN. “It’s that there’s no requirement for reasonable suspicion, like there would be not at the border.”

Warrantless search

Tunick’s lawyers say agents told him that he was suspected of possessing child pornography before they demanded access to his phone. But during a hearing last week on efforts to suppress evidence and testimony gathered during the search, CBP agents admitted there was no reason to suspect Tunick possessed child sex abuse material, according to his attorneys.

“They were unequivocal that no, we had no reason to think that was applicable to Sam, it was part of our shtick to sort of get him to open up,” Tunick’s attorney Matthew Dodge told CNN.

CBP said agents have authority to search the devices of anyone entering the US “regardless of citizenship.”

Despite Tunick’s protest and refusal to allow such a search, the officers still went through his luggage and personal journal before turning to his phone, according to his attorneys.

Tunick said he also repeatedly directed the officers to his lawyer’s business card, which he was carrying.

“Because you’re refusing to talk, which is your right, we have the authority to go through your phone to see what we’re looking for,” one of the officers said, according footage of the incident provided to Tunick’s attorneys.

CNN has not reviewed the footage.

When he asked for a second time why he was not allowed to contact his lawyer, Tunick was told that “when it comes to immigration and customs, right, it’s a whole different ballgame.”

“We have search authority, we don’t need a warrant,” Tunick was told, according to his lawyer’s March court filing.

Tunick’s attorneys also allege their client was never read his Miranda rights nor given the chance to have a lawyer present.

“Sam’s big interest here was protecting his privacy, not hiding evidence of wrongdoing,” Dodge said.

Tunick’s attorneys claimed in the March court filing the search was conducted because of his involvement in the group opposing law enforcement training facility.

As it was being constructed, the Atlanta facility was a hot spot for protests and, at times, violent clashes with police. Authorities charged dozens of activists allegedly associated with the protests. Law enforcement shot a man 57 times in January 2023 after they say he opened fire at officers near the facility.

Border exemptions and questions of obstruction

When asked about the case, CBP told CNN it has the authority to search all electronic devices for people, regardless of citizenship, coming or leaving the US, “to enforce laws addressing terrorism, child exploitation, drug- and human-smuggling, visa fraud, and national security threats.”

The statement continued: “The border search will only include an examination of information that is present on the device at the time it is presented for inspection. In Fiscal Year 2025, less than 0.01% of all arriving international travelers had their electronic devices searched by CBP.”

The limits of that authority, however, could be challenged with cases like Tunick’s.

“We are hopeful that this general rule, that the Fourth Amendment doesn’t apply at the border, (has) just got to be revised and corrected,” Dodge said. “And this is a pretty vivid example of why that rule is far too broad.”

“It has to be much more tailored rule about the Fourth Amendment at the airports,” Dodge added.

In speaking broadly about warrantless seizure, Nathan Freed Wessler, the American Civil Liberties Union’s deputy director for the foundation’s speech, privacy, and technology project told CNN there are several “cases pending in a few courts of appeals now where this question is really live.”

“A couple federal courts of appeals have imposed more stringent limitations than the government was,” Wessler added. “And there are a handful of federal district court judges who have actually gone the whole way and said a warrant is required because this is such a privacy imposition.”

The appeals court that will have jurisdiction over Tunick’s case — the 11th Circuit — however, has previously ruled that phones and electronic devices don’t have greater protections than a suitcase or handbag, despite the vast amount of personal information stored in those devices, Wessler noted.

Questions also remain over whether giving law enforcement a passcode that strips your device of information constitutes obstructing an investigation.

“Obstruction means I’m obstructing some type of investigation, and without any type of warrant or even reasonable suspicion of criminal activity, what investigation am I obstructing?” Mike Fox, a legal fellow at the libertarian Cato Institute, a think-tank focused on issues of civil liberties, told CNN.

Fox noted that it’s unclear what recourse federal agents would have if a person refused to hand over their phone passcode in a similar, warrantless search.

“They’re not going to deny entry because he’s a US citizen,” he said. “But are they going to charge him with some type of obstruction or take his device?”

“This is new, uncharted territory,” Fox added.

According to his attorneys, Tunick was told by officers that if he didn’t comply, they would take his phone and access it by other means.

The judge overseeing the case issued a deadline for final preliminary court filings in late October.

No trial date has been set.

The-CNN-Wire
™ & © 2026 Cable News Network, Inc., a Warner Bros. Discovery Company. All rights reserved.

Judge in Don Lemon indictment asks to see grand jury records, adding to growing scrutiny of Justice Department cases

By CNN
(CNN) — A federal judge in Minnesota will probe this week whether grounds exist to toss the Justice Department’s case against journalist Don Lemon. It’s the latest example of judges’ growing skepticism of whether the department is behaving ethically behind closed doors in grand jury proceedings.Judges across the country have signaled they are willing to give far less deference to federal prosecutors than in previous administrations and have raised concerns about DOJ’s apparent abandonment of regular practices.Federal judges in Wyoming, Illinois and Virginia have either thrown out charges or seriously admonished federal prosecutors for missteps in front of the grand jury. The botched grand jury presentments have prompted a historical review of cases in Chicago and, in some courts, new rules requiring defendants to be notified when a grand jury declines to indict.On August 18, Minnesota federal Judge Laura Provinzino issued a short but extraordinary order demanding the Justice Department provide her a wide swath of grand jury materials related to Lemon and his co-defendants, including presentations made by prosecutors and case agents, and the totality of communications prosecutors had with grand jurors resulting in their indictments.Provinzino set a Tuesday deadline to provide her with the presentation by federal prosecutors and case agents related to grand juries empaneled in January and February. Further, Provinzino told DOJ to provide any introduction, legal instructions, witness testimony, closing arguments, and answers to questions from grand jurors.Lemon’s team has aggressively pursued obtaining grand jury materials and had asked for either grand jury records to be provided to the defense or, at a minimum, reviewed by the judge privately, citing “irregularities” in the grand jury that resulted in his indictment.“There is substantial evidence of grand-jury irregularities in this case,” Lemon’s team wrote in a recent filing.“Multiple judges, including at the Eighth Circuit, found there was no probable cause to charge Lemon” and his co-defendant Georgia Fort, the filing said.Mark Wolf, a former Massachusetts District Court judge and federal prosecutor, said it is rare for defense attorneys to ask for grand jury transcripts in federal court. It is even more rare that judges grant the motions, he said.“There is a high bar to getting grand jury materials,” Wolf said. “You have to have some direct or circumstantial evidence that there has been some defect in the grand jury proceeding.”In her two-page order, Provinzino wrote that she weighed the necessity of maintaining grand jury secrecy against whether grounds may exist to dismiss the case due to a “matter that occurred before the grand jury.”She did not say she had already found evidence of any misconduct.The Justice Department’s initial attempt to charge Lemon in January for appearing alongside protestors who disrupted a church service in St. Paul, Minnesota, was rejected by a federal magistrate judge, which “enraged” then Attorney General Pam Bondi, according to a source who spoke to CNN at the time.Lemon, a former CNN anchor, was later indicted by a grand jury along with several other defendants, including independent journalist Georgia Fort. Lemon has been charged with conspiring to violate someone’s constitutional rights and violating the FACE Act, which prohibits the use of force or threats to intentionally interfere with someone expressing their First Amendment right to practice religion.Lemon has pleaded not guilty to both charges. His team has aggressively pursued obtaining grand jury materials throughout the case, and earlier this month filed a motion to dismiss the case altogether.Justice Department losing credibilityWolf told CNN he does not believe the Justice Department’s credibility remains intact.“For good reasons, the Department of Justice’s reputation with judges generally has been injured,” Wolf said.In Chicago, defense attorneys urged Judge April Perry to release grand jury transcripts in the highly publicized case against protestors at an ICE detention facility outside the city.After reviewing those transcripts, Perry found federal prosecutors engaged in inappropriate actions, such as interacting with grand jurors outside the proceeding, ordering some jurors to leave in another hearing, and “vouching” to the grand jurors.Vouching is a practice where prosecutors present their own reputation while delivering their case to a grand jury. It is forbidden in grand jury proceedings because the practice effectively asks jurors to trust the prosecutor personally rather than only on the merits of evidence.“I have never seen the types of prosecutorial behavior before a grand jury that I saw in those transcripts,” Judge Perry said during a May 21 hearing.US Attorney Andrew Boutros then dropped the case against the protestors. Later, after reviewing the prosecutor’s conduct, Boutros opted to drop at least two more criminal cases, ordered a historical review of more than 100 grand jury transcripts, and launched reforms such as more training on grand jury presentations.“If I was a federal public defender or a private defense attorney, every case I get that’s indicted, I’m going to file a motion that is asking the judge to review the transcripts,” said Mike Fox, a current Cato Institute fellow and former Colorado public defender.“In my view, at this point, it doesn’t matter in which court it is, doesn’t matter if I have binding case law,” Fox said. “Every single case, the defense attorney should be filing, and the judge should be inquiring.”In May, a panel of three federal judges in Wyoming dismissed felony drug and gun indictments against nine defendants after the judges found the acting Wyoming US Attorney referred to defendants as “bad guys,” and “murderers,” and handed out business cards to jurors outside of the proceeding.Prosecutors opted not to appeal the judges’ order. Later, Wyoming federal prosecutors empaneled a new grand jury which issued a new indictment. The case remains ongoing.Fox believes the remedy is a more engaged judiciary where judges routinely witness grand jury proceedings.The current law doesn’t require judges to listen to proceedings, but some courts are issuing new local rules to ensure greater oversight. This spring, the Northern District of Illinois, where Boutros is US Attorney, enacted a rule requiring grand juries to alert a magistrate judge when a grand jury fails to issue an indictment.A spokesperson for the Justice Department told CNN in an email the executive office of the US Attorney provides training for prosecutors which includes grand jury practice.“On rare occasions where there is an issue, as noted in our Chicago US Attorney’s office, we took immediate corrective action and provided renewed, in-depth instruction on ethics and grand jury practice,” the spokesperson wrote.“Our US Attorneys will always follow the law and prosecute cases without fear or favor. Nobody is above the law, regardless of political affiliation. Beyond that, we don’t comment on pending litigation.”Grand jury presentments in the spotlight last yearLast fall, in the most high-profile and politically charged example of a problematic grand jury presentment, then-interim US Attorney for the Eastern District of Virginia, Lindsey Halligan, took a proposed indictment against former FBI Director James Comey through a grand jury on her own. A magistrate judge in Alexandria, Virginia, reviewed the transcript and found Halligan may have incorrectly presented the law to the grand jury. The judge called the debacle “profound investigative missteps … to potentially undermine the integrity of the grand jury proceeding.”Halligan later admitted to a judge the grand jury hadn’t supported the initial version of the proposed indictment of Comey, and the full grand jury hadn’t signed off on the final charging document. That Comey case was dismissed for a separate reason, when a federal district judge determined Halligan wasn’t serving as a legitimate prosecutor. The Justice Department is appealing.But the grand jury handling in the Comey case and other cases continues to hover over prosecutors.Comey’s defense team, for instance, is attempting to pry into grand jury records in the separate, newer case against him, out of Eastern North Carolina. He is charged there with threatening the president by posting on social media a photo of the numbers “8647” written in seashells on a beach.The phrase 86 is sometimes used to say nix or get rid of something. Trump is the 47th president. Comey has denied wrongdoing in the case.“The highly irregular procedures that led to the indictment create a significant risk that the government misrepresented key issues of fact and law to the grand jury,” Comey’s lawyers wrote in a recent court filing, citing federal searches of Comey that they question.If Comey’s defense cannot gain access to the grand jury transcript, they at least want a judge to look at it to check the Justice Department’s work.Wolf said he is deeply troubled by the Justice Department’s recent actions and told CNN he believes it shows the American people that the department will use the law for partisan purposes.“It sends a message that a Department of Justice that should institutionalize our ideal of equal justice under law is not doing that,” Wolf said. “And that means anybody is vulnerable.”The-CNN-Wire™ & © 2026 Cable News Network, Inc., a Warner Bros. Discovery Company. All rights reserved.
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