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United States v. Kolsuz

United States Court of Appeals, Fourth Circuit

May 9, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,

          Argued: October 26, 2017

          Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T.S. Ellis, III, Senior District Judge. (1:16-cr-00053-TSE-1)


          Todd M. Richman, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.

          Jeffrey Michael Smith, National Security Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

          Esha Bhandari, AMERICAN CIVIL LIBERTIES UNION, New York, New York, for Amici American Civil Liberties Union, ACLU of Virginia, ACLU of Maryland, ACLU of North Carolina, ACLU of South Carolina, and ACLU of West Virginia.

         ON BRIEF:

          Geremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.

          Dana Boente, United States Attorney, Mary B. McCord, Acting Assistant Attorney General for National Security, Heather Alpino, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

          Hope R. Amezquita, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, Richmond, Virginia, Nathan Freed Wessler, Vera Eidelman, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Amici American Civil Liberties Union, ACLU of Virginia, ACLU of Maryland, ACLU of North Carolina, ACLU of South Carolina, and ACLU of West Virginia. Curt Levey, THE COMMITTEE FOR JUSTICE, Washington, D.C., Erica L. Marshall, CAUSE OF ACTION INSTITUTE, Washington, D.C., for Amici Cause of Action Institute, The Committee for Justice, and Floor64, Inc. Sophia Cope, Adam Schwartz, ELECTRONIC FRONTIER FOUNDATION, San Francisco, California, for Amici Electronic Frontier Foundation, Asian Americans Advancing Justice-Asian Law Caucus, Council on American-Islamic Relations (CAIR), CAIR California, CAIR Florida, CAIR Missouri, CAIR New York, CAIR Ohio, CAIR Dallas/Fort Worth, and The National Association of Criminal Defense Lawyers. Michael Price, BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW, New York, New York, for Amicus Brennan Center for Justice.

          Before WILKINSON, MOTZ, and HARRIS, Circuit Judges.


         Hamza Kolsuz 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 Kolsuz, the agents took possession of his smartphone and subjected it to a month-long, off-site forensic analysis, yielding a nearly 900-page report cataloguing the phone's data. The district court denied Kolsuz's motion to suppress, applying the Fourth Amendment's border search exception and holding that the forensic examination was a nonroutine border search justified by reasonable suspicion. Kolsuz ultimately was convicted of attempting to smuggle firearms out of the country and an associated conspiracy charge.

         Kolsuz now challenges the denial of his suppression motion. First, he argues that the forensic analysis of his phone should not have been treated as a border search at all. According to Kolsuz, once both he and his phone were in government custody, the government interest in preventing contraband from crossing the border was no longer implicated, so the border exception should no longer apply. Second, relying chiefly on Riley v. California, 134 S.Ct. 2473 (2014) (holding that search incident to arrest exception does not apply to searches of cell phones), Kolsuz urges that the privacy interest in smartphone data is so weighty that even under the border exception, a forensic search of a phone requires more than reasonable suspicion, and instead may be conducted only with a warrant based on probable cause.

         We agree with the district court that the forensic analysis of Kolsuz's phone is properly categorized as a border search. Despite the temporal and spatial distance between the off-site analysis of the phone and Kolsuz's attempted departure at the airport, the justification for the border exception is broad enough to reach the search in this case. We also agree with the district court that under Riley, the forensic examination of Kolsuz's phone must be considered a nonroutine border search, requiring some measure of individualized suspicion. What precisely that standard should be - whether reasonable suspicion is enough, as the district court concluded, or whether there must be a warrant based on probable cause, as Kolsuz suggests - is a question we need not resolve: Because the agents who conducted the search reasonably relied on precedent holding that no warrant was required, suppression of the report would be inappropriate even if we disagreed. Accordingly, we affirm the judgment of the district court.



         We begin with the Fourth Amendment principles that govern this case. As a general rule, the Fourth Amendment requires that law enforcement searches be accompanied by a warrant based on probable cause. Arizona v. Gant, 556 U.S. 332, 338 (2009). But there are exceptions, and one such exception typically covers our nation's borders. At a border - or at a border's "functional equivalent, " like the international airport at which Kolsuz was intercepted - government agents may conduct "routine" searches and seizures of persons and property without a warrant or any individualized suspicion. Almeida-Sanchez v. United States, 413 U.S. 266, 272-73 (1973); United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985). The Supreme Court has described the border exception as "grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country." United States v. Ramsey, 431 U.S. 606, 620 (1977); see United States v. Flores-Montano, 541 U.S. 149, 152 (2004) (border exception rests on government interest in "preventing the entry of unwanted persons and effects"). Routine searches and seizures at the border therefore 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." Montoya de Hernandez, 473 U.S. at 537, 544.

         In this case, the search in question was initiated when Kolsuz attempted to exit the country, not to enter. But we have long held that the rationales underlying the border exception extend to exit as well as entry searches. See United States v. Oriakhi, 57 F.3d 1290, 1296-97 (4th Cir. 1995). The "fundamental principles of national sovereignty" that are the basis for the border search exception, we have explained, apply equally to government efforts to "protect[] and monitor[] exports from the country" as they do to efforts to control imports. Id. at 1296, 1297. Thus, with respect to exit searches, the border search exception is justified by the government's power to regulate the export of currency and other goods. Id. at 1297. And that power surely extends to controls on the exports of dangerous weapons, like the firearms parts at issue here. See, e.g., United States v. Boumelhem, 339 F.3d 414, 422-23 (6th Cir. 2003) (applying border exception to exit search of shipping container believed to hold smuggled firearms).

         Even at the border, however, the government's authority is not without limits. The "ultimate touchstone" of the Fourth Amendment, Riley, 134 S.Ct. at 2482, remains "reasonableness." See Montoya de Hernandez, 473 U.S. at 538. While suspicionless border searches generally are "reasonable simply by virtue of the fact that they occur at the border, " Ramsey, 431 U.S. at 616, the Supreme Court also has recognized a category of "nonroutine" border searches that are constitutionally reasonable only if based on individualized suspicion. See Montoya de Hernandez, 473 U.S. at 541 (holding that overnight detention for monitored bowel movement followed by rectal examination is "beyond the scope of a routine customs search" and permissible under the border exception only with reasonable suspicion). Such nonroutine border searches, the Court has suggested, include "highly intrusive searches" that implicate especially significant "dignity and privacy interests, " as well as destructive searches of property and searches carried out in "particularly offensive" manners. Flores-Montano, 541 U.S. at 152, 154 & n.2.


         In January 2016, Turkish citizen Hamza Kolsuz entered the United States in Miami, Florida, on a tourist visa. By that time, Kolsuz already was well known to government authorities. In December 2012, agents had discovered 163 firearms parts in his luggage when Kolsuz checked in for a flight to Turkey at John F. Kennedy International Airport in New York. The parts were listed on the United States Munitions List ("USML"), subjecting them to export controls and a license requirement under the Arms Export Control Act, 22 U.S.C. § 2778(b)(2). See 22 C.F.R. §§ 120.2, 121.1 (setting out USML, and defining "defense articles and defense services" subject to control under the Act). Agents explained the licensing requirements to Kolsuz and his companions, and ultimately seized the weapons parts. Just one month later, in January 2013, the process more or less repeated itself: Kolsuz arrived at JFK Airport for a flight to Turkey; a search of his checked luggage revealed firearms parts; and a licensing determination disclosed that although the parts were listed on the USML, Kolsuz had not obtained the requisite export license.

         When Kolsuz reentered the country on January 25, 2016, the authorities were ready for him. On February 1, 2016, Charles Reich, a Special Agent with United States Customs and Border Protection ("CBP") in New York, reached out to CBP officers on duty at Washington Dulles International Airport ("Dulles") to let them know that Kolsuz, who had been stopped before while attempting to smuggle firearms parts out of the country, would be traveling from Dulles to Turkey the following day. Agent Reich urged the officers to search Kolsuz's luggage for firearms parts, and followed up with an email containing additional information and a list of questions to ask Kolsuz about his associates and activities.

         On February 2, 2016, Kolsuz began his return trip by checking in at Miami International Airport for a series of flights that would take him through Dulles and on to Turkey. When Kolsuz and his luggage reached Dulles, CBP officers Lauren Colgan and Jonathan Budd conducted an outbound customs examination of his two checked bags.[1]Once again, they found multiple firearms parts: 18 handgun barrels, 22 9mm handgun magazines, four .45 caliber handgun magazines, and one .22 caliber conversion kit. Colgan and Budd, thanks to their training, immediately recognized that the barrels and conversion kit were listed on the USML and thus could not be removed from the country without a license. And when Kolsuz was stopped on the jetway as he attempted to board his flight to Turkey, he admitted that he was in possession of firearms parts for which he did not have a federal license.

         After transporting Kolsuz to a secondary inspection area, the officers conducted what would be the first of two searches of Kolsuz's iPhone 6 Plus. This search - often referred to as a "manual" search - involved using the iPhone's touch screen, which was not password protected, to scroll through Kolsuz's recent calls and text messages. The officers also confirmed through a records search that Kolsuz had no export license or pending application for a license. After an interview with a number of CBP officers, Kolsuz was arrested.

         At that point, CBP Special Agent Adam Coppolo initiated the second search of Kolsuz's phone, this one commonly known as a "forensic" search. Coppolo first transported the phone approximately four miles from Dulles to the Homeland Security Investigations office in Sterling, Virginia. There, Computer Forensic Agent Michael Del Vacchio attached the phone to a Cellebrite Physical Analyzer, which extracts data from electronic devices, and conducted an advanced logical file system extraction. The phone remained in airplane mode throughout, so the forensic examination did not reach data stored remotely - or "in the cloud" - and was instead limited to data stored on the phone itself. Even so, 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 was indicted on three counts: (i) attempting to export firearms parts on the USML without a license, in violation of the Arms Export Control Act, 22 U.S.C. §§ 2278(b) and (c); (ii) attempting to smuggle goods from the United States in violation of 18 U.S.C. § 554(a); and (iii) conspiracy to commit those offenses, in violation of 18 U.S.C. § 371.

         Before trial, Kolsuz filed a motion to suppress the report generated by the forensic examination of his phone, arguing primarily that the border exception did not apply to the search. According to Kolsuz, a forensic search of a phone that occurs miles away from an airport and for a month after an attempted departure does not constitute a "border search." Moreover, Kolsuz contended, the rationales justifying the border exception were not implicated in this case, because at the time of the search there was no prospect that either he or his phone - both securely in government custody - would be crossing the border. Instead, Kolsuz argued, the forensic search should be treated as a search incident to his arrest, and under Riley v. California, cell phones may be searched incident to arrest only with a warrant based on probable cause.

         In a comprehensively reasoned opinion, the district court denied Kolsuz's suppression motion. United States v. Kolsuz, 185 F.Supp.3d 843, 860 (E.D. Va. 2016). The court held first that the forensic search of Kolsuz's phone was properly evaluated as a border search. That Kolsuz had been arrested, the district court explained, did not transform the forensic examination into a search incident to arrest or render the border exception inapplicable; both the Fourth Circuit and other courts have held that a border search may be conducted after a traveler is arrested and no longer in a position to cross the border. Id. at 851 (citing United States v. Ickes, 393 F.3d 501, 507 (4th Cir. 2005)). Similarly, the court found, it is well established that a search initiated at the border may fall under the border exception even if it ultimately is conducted off-site and over a long period of time. Id. at 851-52.

         Now applying the border exception, the district court went on to consider whether the forensic search of Kolsuz's smartphone was a routine border search, subject to no Fourth Amendment requirements, or whether, as Kolsuz urged, it was a nonroutine search that required some degree of individualized suspicion. The court acknowledged that in Ickes, the Fourth Circuit treated as routine a border inspection of a computer's contents, accessed manually "in the same way a typical user would" and without any "sophisticated forensic analysis." Id. at 853 (citing Ickes, 393 F.3d at 502-03). But that decision, the court determined, "does not address whether more sophisticated forensic searches" also may be classified as routine, id. at 854, particularly in light of the Supreme Court's subsequent decision in Riley and its emphasis on the significant privacy interests in the digital contents of phones.

         The court concluded that while the manual search of Kolsuz's iPhone at the airport was a routine border search, [2] the off-site forensic analysis of the phone's data qualified as a nonroutine search. After Riley, the court found, a forensic search of a phone no longer can be analogized to an ordinary search of luggage or some other container at the border, given the breadth and sensitivity of the private information that may be uncovered. It is "difficult to conceive of a property search more invasive or intrusive than a sophisticated, digital search of a cell phone, " the court concluded, which ...

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