UNITED STATES OF AMERICA v. HAMZA KOLSUZ
U.S. Court of Appeals for the Fourth Circuit, Harris, May 9, 2018,
Border Searches – A forensic examination of a smartphone is a “nonroutine” search that must be justified by individualized suspicion of wrongdoing
(Concur – Wilkinson – Congress should decide the limits and requirements of a border search, not courts)
WHAT EVIDENCE WAS RECOVERED??? He was found with gun parts in his luggage, admitted he had the gun parts, had been caught trying to smuggle gun parts twice before, and didn’t have a license. Was there an actual smoking gun in the phone? What is he trying to suppress?
Also, the Court gets into dangerous territory looking at whether a particular instantiation of a search comports with the general justification for that search. The Court states that because there was individualized suspicion related to border-search topics, it’s a border search… which… ummm… what?
“But this is not that case”… ok… but is that EVER going to invalidate an otherwise valid search that stays within the limits set forth for that type of search?. My guess is that this is just rhetorical, but let’s rein that in a bit, shall we?
We also get into “perhaps” a border search might need more than RAS, “but we need not resolve that question here.” WHAT? STOP OPENING DOORS UNLESS YOU WANT TO DEAL WITH WHAT’S ON THE OTHER SIDE!
And then we rely on GOOD FAITH??? Ugh. OF COURSE it’s good faith. IT’S THE LAW! Want to change the law? Write an opinion that changes the #@!$@#$@#$ law. Don’t just be passive aggressive about it.
As to the concurrence: Courts should set the very outside limit, not “what we’d like to see happen day to day.” But Courts definitely have a role to play in the discussion.
Facts:
In 2012, Hamza Kolsuz was discovered with 163 firearm parts in his luggage trying to take them out of the country without a license in violation of federal arms control law.
In 2013, Kolsuz was again discovered trying to leave the country with firearms parts and no export license.
In 2016, when Kolsuz reentered the country on a tourist visa, Customs and Border Protection (CBP) agents were on alert to search his luggage for firearms parts.
While at Dulles International Airport attempting to board a flight back to Turkey, his luggage was searched and CBP agents found 18 handgun barrels, 22 9mm handgun magazines, four .45 caliber handgun magazines, and one .22 caliber conversion kit. These are restricted from export with a license, and Kolsuz still did not have a license.
Kolsuz was stopped from boarding and admitted that he was in possession of firearms parts for which he did not have an export license.
Kolsuz was transported to a “secondary inspection area” where a manual search was conducted of his iPhone (which was not password/screenlock protected).
Kolsuz was then arrested and his phone was transported to DHS four miles from Dulles Airport for a Cellebrite forensic analysis of the phone. The phone remained in “airplane mode” and so the forensic search was limited to the phone itself.
The data extraction process lasted for a full month, and yielded an 896-page report that included Kolsuz’s personal contact lists, emails, messenger conversations, photographs, videos, calendar, web browsing history, and call logs, along with a history of Kolsuz’s physical location down to precise GPS coordinates.
Kolsuz tried to have the evidence recovered from the phone suppressed as the result of a 4th Amendment violation.
The trial court denied his motion and Kolsuz was convicted of attempting to smuggle firearms out of the country along with an accompanying conspiracy charge.
Kolsuz appealed, arguing that this was not a “border search” because at the time of the search he was under arrest and not leaving the country. He argued that a search warrant was required to search his phone under these circumstances.
Held: The 4th Circuit held that a forensic search of a cellphone can still be a “border search” if it’s initiated at the border, even if the actual search is conducted later and off-site.
Searches – A search must be justified by a search warrant unless that search falls into one of the “search warrant exceptions.”
Border Searches – At a national border (or equivalent, such as an airport), a government agent may conduct a “routine” search and seizure of people and property without any warrant or individualized suspicion.
Border Searches – Routine searches and seizures at the border are exempted from standard Fourth Amendment requirements so that the government can “prevent the introduction of contraband” into the country and bar entry by those who would bring harm across the border, “whether that be communicable diseases, narcotics, or explosives.”
Border Searches – A border search/seizure may be conducted regardless of whether the person/property is entering or leaving the country.
Border Search – A search can still be considered a “border search” even if the subject has already been arrested and is no longer in a position to cross the border
Border Search – A “border search” may still apply even though the item to be searched is moved from the border and searched later
Border Search – Smartphone – An off-site forensic examination of a computer can still count as a border search where it was initiated as part of a border search
Border Searches – Even at the border, a “nonroutine” search must be justified by individualized suspicion of wrongdoing
Note: “Individualized suspicion” for a border search is equivalent to reasonable, articulable suspicion (RAS)
Border Searches- “Nonroutine” searches are “highly intrusive” searches that deal with significant dignity or privacy interests as well as destructive searches or searches carried out in a “particularly offensive” manner.
Border Searches – A forensic examination of a smartphone is a “nonroutine” search that must be justified by individualized suspicion of wrongdoing
From the Case: “In deciding whether a search rises to the level of nonroutine, courts have focused primarily on how deeply it intrudes into a person’s privacy.” Smartphones and laptops “contain the most intimate details of our lives: financial records, confidential business documents, medical records and private emails and also may provide access to data stored remotely.”
Note: The Court did not consider whether a “manual” search of a smartphone is a “routine” search that may be performed without suspicion of wrongdoing
Good Faith – Evidence should not be suppressed if an officer conducted a search in good faith based on existing law, even if that law later changed
From the Case: “It was reasonable for the CBP officers who conducted the forensic analysis of Kolsuz’s phone to rely on the established and uniform body of precedent allowing warrantless border searches of digital devices that are based on at least reasonable suspicion.”