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Federal Appeals Court Requires Individualized Suspicion in Search of a Cellphone, But Not Necessarily a Warrant

Posted on June 1st, 2018

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In U.S. v. Kolsuz, (4th Cir. May 9, 2018), the United States Court of Appeals for the Fourth District determined requirements for a proper border search.

Hamza Kolsuz (“Kolsuz”) was detained by federal customs agents at Washington Dulles International Airport while he was attempting to board a flight to Turkey. The customs agents, which found firearms in his luggage, took Kolsuz’s phone for an off-site forensic analysis of its data that produced a 900-page report.

The district court denied Kolsuz’s motion to suppress based on the Fourth Amendment’s border search exception and that the search of the phone was justified by reasonable suspicion. Kolsuz challenged the court’s denial of his suppression motion, arguing that an analysis of his phone should not have been treated as a border search. In his argument, Kolsuz claimed that once he and his phone were in federal custody, nothing would be leaving the United States. Therefore, the border exception should not apply. In addition, Kolsuz argued that due to the privacy interests associated with smartphone data, a forensic search of a phone requires more than reasonable suspicion. According to Kolsuz, the examination should only be conducted with a warrant based on probable cause.

In most cases, the Fourth Amendment requires searches to be done with warrants based on probable cause. There are exceptions at our nation’s borders or a functioning equivalent of our borders, such as an international airport. Agents searched Kolsuz when he was trying to exit the country. The federal government has the power to regulate the export of currency and other goods, such as controls on the export of weapons.

However, there are limitations on the federal government’s powers in respect to border searches. Suspicionless border searches are generally reasonable because they are conducted at the border, but the Supreme Court of the United States (SCOTUS) also recognizes a category of border searches that are reasonable only if they are based on individualized suspicion.

Kolsuz’s suppression motion was denied by the district court on the grounds that it was a border search. Applying the border exception, the district court also considered whether the search of Kolsuz’s phone was a routine or nonroutine search, the latter of which requires some degree of individualized suspicion. In its decision, the Court found that the manual search of Kolsuz’s iPhone was a routine border search. The off-site search that produced a 900-page report was a nonroutine search, meaning it required individualized suspicion. However, the Court did not find a requirement for a warrant based on probable cause.

The Appeals Court agreed with the government’s argument that because the forensic search of the phone was conducted to uncover information about an ongoing crime, it fit within the rationale underlying the border search exception.

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