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United States v. Kolsuz - 890 F.3d 133 (4th Cir. 2018)


The rationales underlying the border exception to the warrant requirement extend to exit as well as entry searches. The fundamental principles of national sovereignty that are the basis for the border search exception apply equally to government efforts to protect and monitor exports from the country as they do to efforts to control imports. 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. And that power surely extends to controls on the exports of dangerous weapons. Even at the border, however, the government's authority is not without limits. The "ultimate touchstone" of the Fourth Amendment remains "reasonableness." While suspicionless border searches generally are reasonable simply by virtue of the fact that they occur at the border, the Supreme Court of the United States also has recognized a category of "nonroutine" border searches that are constitutionally reasonable only if based on individualized 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.


Defendant 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. At trial in federal district court, the 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 appealed the denial of his suppression motion, arguing that the forensic analysis of his phone should not have been treated as a border search at all and that the privacy interest in smartphone data was so weighty that even under the border exception, a forensic search of a phone required more than reasonable suspicion.


Was the search of Kolsuz's phone covered by the border search exception to the Fourth Amendment warrant requirement?




The appellate court held that despite the temporal and spatial distance between the off-site forensic analysis of Kolsuz's phone and his attempted departure at the airport, the justification for the border exception to the Fourth Amendment warrant requirement was broad enough to reach the search of the phone. The court found that there was a direct link between the predicate for the search and the rationale for the border exception. Because the forensic search of Kolsuz's phone was conducted in part to uncover information about an ongoing crime of illegal firearms exports, it fit within the core of the rationale underlying the border search exception. Finally, the court concluded that it was reasonable for the officers who conducted the forensic analysis of the phone to rely on the established and uniform body of precedent allowing warrantless border searches of digital devices that were based on at least reasonable suspicion.

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