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.

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