Hello, this is Summary Judgment, a podcast offering easy-to-understand explanations of major court cases as they are decided. I’m Alan Mygatt-Tauber.
This week we’re discussing United States v. Kolsuz, a Fourth Circuit case about cell phone searches at the border.
Hamza Kolsuz, a Turkish citizen, was detained at Washington Dulles International Airport while attempting to board a flight to Turkey because federal customs agents found firearms parts in his luggage. After arresting him for violating the Arms Export Control Act, the agents took his cell phone and subjected it to a month-long, off-site forensic analysis that yielded a nearly 900 page report cataloguing the phone’s data.
By the time he appeared at Dulles, Kolsuz was well-known to Homeland Security. In December 2012, he had been caught with 163 firearms parts in his luggage, all of which were on the Export Control List, and he lacked a permit. He was informed of the licensing requirements. Just a month later, in January 2013, he was again caught trying to leave the country with export-controlled firearms parts without the appropriate export license.
When he re-entered the country in February 2016, customs agents watched for his departure and searched his luggage. Once again, they discovered firearms parts on the export control list and once again, he lacked the appropriate license. After taking him to a secondary inspection area, the officers conducted the first of two searches of Kolsuz’s iPhone. This first search was known as a “manual” search – using the touch screen, which was not password protected, to scroll through recent calls and text messages. After confirming Kolsuz lacked an export license, he was arrested.
Following his arrest, Customs agents initiated the second search of the phone, known as a “forensic” search. The phone was first taken to a DHS site approximately four miles from Dulles where it was attached to a cell phone analyzer, which extracts data from electronic devices and conducted an advanced logical file system extraction. The phone remained in airplane mode throughout, so no data stored remotely – in the cloud – was accessed. Despite this, the search lasted a full month and yielded an 896-page report.
Kolsuz was indicted on three counts related to the attempted exportation of restricted firearms parts.
He filed a motion to suppress the data, which the district court denied. It held that the Fourth Amendment’s border search exception applied, but the Court also held that the forensic examination constituted a non-routine border search, which required reasonable suspicion. The District Court held that such suspicion was present in this case and upheld the search.
Kolsuz appealed. He argued that the forensic analysis of his phone should not be treated as a border search at all. Because he and his phone were in Government custody, he argued, the Government interest in preventing contraband from crossing the border no longer applied, so the exception should not apply.
Second, Kolsuz relied on the Supreme Court’s 2014 case of Riley v. California. There, the Supreme Court held that the search incident to arrest exception to the Fourth Amendment does not apply to searches of cell phones. He argued that the privacy interest in smartphone data is so weighty that even if the border exception applied, a forensic search of a cell phone requires a warrant supported by probable cause.
The Fourth Circuit affirmed the district court. It began its opinion with an examination of the general principles underlying the Fourth Amendment. It noted that, as a general rule, the Fourth Amendment requires that law enforcement searches be accompanied by a warrant based on probable cause. But there are recognized exceptions, and one covers searches at the border.
At the border, or its functional equivalent, the Government may conduct “routine” searches and seizures of property and persons without a warrant or any individualized suspicion. Such searches are exempt from standard Fourth Amendment protection because they further the sovereign’s interest to control who and what may enter the country. This exception has long been extended to exit searches as well as entry searches.
But this exception is not without limits. Even at the border, the ultimate touchstone of the Fourth Amendment, is reasonableness. The Supreme Court has also recognized a category of non-routine border searches that are reasonable only if they are based on individualized suspicion. Such searches include highly intrusive searches that implicate especially significant dignity and privacy interests, destructive searches of property and searches carried out in particularly offensive manners.
Thus, the district court concluded, the manual search of Kolsuz’s phone was a routine border search, but the off-site forensic search qualified as non-routine. The court stated that it was difficult to conceive of a property search more invasive or intrusive than a forensic search of a phone.
As a non-routine search, the forensic analysis required particularized suspicion. However, no case had ever held that such suspicion required a warrant in the border search context. Indeed, even the most invasive searches of the person had been upheld at the border with nothing more than reasonable suspicion.
On appeal, Kolsuz challenged only the forensic search of his phone. The Fourth Circuit held that the border exception is broad and is not rendered inapplicable because a search initiated at the border ultimately is conducted at some physical or temporal remove. Kolsuz conceded this on appeal. The Fourth Circuit, however, went further and held that his arrest did not transform the search into one incident to arrest, triggering the protections of Riley. The context of this search at the border controlled over the search incident to arrest doctrine.
Kolsuz argued that the combination of factors in his case untethered the search from the justifications for the border exception. The Court agreed that exceptions to the Fourth Amendment must be defined by their justifications. Thus, where the government interests underlying a Fourth Amendment exception are not implicated by a type of search, and where the individual’s privacy interests outweigh any governmental interests, the government must obtain a warrant based on probable cause. But, the Court held, this was not that case.
The link between Kolsuz’s phone and the interest justifying border searches was sufficient to trigger the border exception here. Government agents searched Kolsuz’s phone because they had reason to believe that he was attempting to illegally export firearms without a license.
However, Kolsuz also had a fallback position – that even if the border exception applied, the forensic search of his phone was a non-routine search requiring a warrant supported by probable cause. Again, the Court disagreed.
The Court did agree that the forensic search of his cell phone data qualifies as a non-routine border search, requiring some level of particularized suspicion. The Supreme Court has never defined precisely what makes a search non-routine – but courts have primarily focused on how deeply the search intrudes into a person’s privacy.
Even prior to Riley, the Court noted, there was a convincing case for categorizing forensic searches of digital devices as non-routine, based on the sheer quantity of data stored on smartphones and other digital devices as well as the uniquely sensitive nature of that information. Finally, the Court noted that, from a practical perspective, it was not possible for an international traveler to leave his phone behind. Riley merely confirmed this assessment. Thus, after Riley, a forensic search of a cell phone must be treated as non-routine.
The Court noted both that the Government did not seriously challenge this and that after argument in this case, the Department of Homeland Security had adopted a policy that treats forensic searches of digital devices as non-routine. This, the Court held, suggests that the distinction between manual and forensic searches is a manageable one for the Agency to implement. Therefore, its conclusion on this matter would not interfere unduly with the Agency’s mission.
However, the Court stated, this did not resolve the case. There is still the question of what level of individualized suspicion is necessary to support such a non-routine search. But here, the Court did not need to reach the answer, because even if the search was flawed, its fruits need not be suppressed if the agents acted in reasonable reliance on binding precedent, because there is no deterrence from such suppression. Here, there was no case indicating that anything more than reasonable suspicion was required – even after Riley, no cases requiring more than reasonable suspicion for forensic cell phone searches of the border could be found. Therefore, the Court found it reasonable for the Customs officers to rely on this uniform precedent allowing warrantless searches of digital devices at the border.
The Court was unanimous on the outcome of the case, but Judge J. Harvey Wilkinson filed a concurrence, arguing that the majority failed to take proper account of the role of the political branches. He believed that the standard of reasonableness at the border should be a legislative question, not a judicial one. Additionally, since there was no question that there was reasonable suspicion in this case, the Court’s inquiry should have ended there. Because of the unique risks of securing the border and the need for empirical judgments to properly balance privacy and security, Judge Wilkinson felt it was inappropriate for the Court to make a constitutional rule here. However, because he agreed with the ultimate outcome, he concurred with the result.
Overall, this case does not seem like it’s going to make a lot of difference on the conduct of law enforcement at the border. It is refreshing to hear that the Court recognizes that forensic searches of cell phones are non-routine and require a heightened level of suspicion before being conducted. But because the Court did not clarify exactly what is needed, it is likely that other courts will follow the Fourth Circuit’s lead and maintain the lower reasonable suspicion standard, as opposed to the higher probable cause requirement that accompanies a warrant.
As noted by both the majority and the concurrence, there was no real question that the customs agents had a good reason for searching Kolsuz’s phone. He was caught in the act of attempting to smuggle gun parts to Turkey in violation of the Arms Export Control Act. In this case, the outcome of the case would likely be unchanged regardless of what standard the court used, and so in that sense, it was correct in noting that it had no need to reach the ultimate conclusion of what standard was appropriate. But the appellate Court’s job is not just to decide the case before it, but to provide guidance for future courts. Hopefully, in some future case, it will take the opportunity to clarify exactly what level of suspicion is required before conducting such an invasive search.
Of course, the Court’s decision begs the question of whether there should be a border exception to the Fourth Amendment. However, that ship has long ago sailed. Given that, I believe the majority’s decision was the most in line with current Supreme Court precedent.
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