US v. Oceanic: Two closely related corporate entities, Oceanic and Oceanfleet, had ships wherein the crews ignored the waste disposal procedures required by statute and international convention, and illegally dumped bilge water consisting of large quantities of oily pollutants into the ocean. Such waste must normally be incinerate onboard the vessel, or offloaded at port to a licensed hauler and disposal facility. The foregoing proper disposal must be recorded in a ship’s Oil Record Book. In this case, the appellants’ Oil Record Books were allegedly falsified. Both companies were charged in nine counts of obstruction, falsification of the Oil Record Book, witness tampering, and lying to the Coast Guard. The parties went to trial in South Carolina in September 2016. The two corporations, as well as two chief crew members, were found guilty on all counts. On appeal, Oceanic and Oceanfleet argued that the evidence was insufficient to prove corporate criminal liability. Oceanic was ordered to pay $675k in fines plus $225k in restitution to the Gray’s Reef National Marine Sanctuary Foundation; Oceanfleet was ordered to pay $1.35 million in fines plus $450k restitution to the same foundation. The companies’ ships were also prohibited from using US ports.
According to the Fourth Circuit, the evidence presented at trial proved that bilge water and sludge was discharged consistently during the appellants’ transoceanic journeys. Also, the Oil Record Books were falsified, and attempts to conceal the illegal activities were made. Two Coast Guard investigators testified that they had been tipped off by a spouse of one ship’s third engineer to the illegality. That engineer agreed to fully cooperate with investigators, which prompted a criminal investigation.
Under a theory of vicarious liability, the Fourth Circuit held that there was sufficient evidence for the guilty verdicts. The corporations were criminal liable for the illegal dumping activity taken by the chief and first engineers aboard their ships. The Fourth Circuit affirmed the convictions and sentences.
Wednesday, May 16, 2018
Border search exception clarifications
US v. Kolsuz: In this appeal, the Fourth Circuit analyzes how privacy rights apply to searches of cell phones seized at an international border. Kolsuz was stopped by federal agents as he attempted to board a plane at Dulles International, bound for Turkey. Firearm parts were discovered in his bags. After arresting Kolsuz, agents seized his smartphone, and took 90 days to conduct forensic analysis on it and generated a report of some 900 pages. Kolsuz filed a motion to suppress, arguing that the seizure of his phone was a non-routine border search not justified by reasonable suspicion, which motion was denied. Kolsuz was eventually convicted of attempting to smuggle firearms out of the country and also a conspiracy count. He appealed, challenging the denial of his motion to suppress, arguing that even under the border exception, a forensic search of a smartphone requires more than reasonable suspicion, and may only be conducted with a warrant based upon probable cause.
The Fourth Circuit held that the forensic analysis of Kolsuz’s phone was properly categorized as a border search, and it was non-routine, so pursuant to Supreme Court precedent, it required some measure of individualized suspicion. However, because the agents involved believed no warrant was required, the Fourth Circuit found suppression of the forensic analysis report on the phone was not appropriate, and affirmed the district court.
In its analysis, the Fourth Circuit discusses how border searches are an exception to the normal rule requiring warrants; at borders, agents can conduct “routine” searches and seizures of people and property with no warrant or individualized suspicion. However, now the Fourth Circuit requires suspicion for forensic, advanced, searches of cell phones seized at the border. Basic, or manual, searches can still be conducted without suspicion - these searches do not involve the use of external equipment or software.
Further, the Fourth Circuit sets out the following test for future cases, requiring the government to identify its border search-related interest justifying that particular search in order to rely on the border search exception.
The Fourth Circuit held that the forensic analysis of Kolsuz’s phone was properly categorized as a border search, and it was non-routine, so pursuant to Supreme Court precedent, it required some measure of individualized suspicion. However, because the agents involved believed no warrant was required, the Fourth Circuit found suppression of the forensic analysis report on the phone was not appropriate, and affirmed the district court.
In its analysis, the Fourth Circuit discusses how border searches are an exception to the normal rule requiring warrants; at borders, agents can conduct “routine” searches and seizures of people and property with no warrant or individualized suspicion. However, now the Fourth Circuit requires suspicion for forensic, advanced, searches of cell phones seized at the border. Basic, or manual, searches can still be conducted without suspicion - these searches do not involve the use of external equipment or software.
Further, the Fourth Circuit sets out the following test for future cases, requiring the government to identify its border search-related interest justifying that particular search in order to rely on the border search exception.
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