United States v. Kolsuz, No. 16-4687

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtPAMELA HARRIS, Circuit Judge
Citation890 F.3d 133
Parties UNITED STATES of America, Plaintiff–Appellee, v. Hamza KOLSUZ, Defendant–Appellant.
Docket NumberNo. 16-4687
Decision Date09 May 2018

890 F.3d 133

UNITED STATES of America, Plaintiff–Appellee,
v.
Hamza KOLSUZ, Defendant–Appellant.

No. 16-4687

United States Court of Appeals, Fourth Circuit.

Argued: October 26, 2017
Decided: May 9, 2018
Amended: May 18, 2018


ARGUED: 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.

Affirmed by published opinion. Judge Harris wrote the opinion, in which Judge Motz joined. Judge Wilkinson wrote a separate opinion concurring in the judgment.

PAMELA HARRIS, Circuit Judge:

890 F.3d 136

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

890 F.3d 137

contraband from crossing the border was no longer implicated, so the border exception should no longer apply. Second, relying chiefly on Riley v. California , ––– U.S. ––––, 134 S.Ct. 2473, 189 L.Ed.2d 430 (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.

I.

A.

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, 129 S.Ct. 1710, 173 L.Ed.2d 485 (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, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973) ; United States v. Montoya de Hernandez , 473 U.S. 531, 538, 105 S.Ct. 3304, 87 L.Ed.2d 381 (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, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977) ; see United States v. Flores–Montano , 541 U.S. 149, 152, 124 S.Ct. 1582, 158 L.Ed.2d 311 (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, 105 S.Ct. 3304.

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

890 F.3d 138

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, 105 S.Ct. 3304. 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, 97 S.Ct. 1972, 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, 105 S.Ct. 3304 (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, 124 S.Ct. 1582.

B.

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...

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50 practice notes
  • Alasaad v. Nielsen, No. 17-cv-11730-DJC
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 12, 2019
    ...nor reasonable to expect the average traveler to leave his digital devices at home when traveling.’ " United States v. Kolsuz, 890 F.3d 133, 144-45 (4th Cir. 2018) (quoting United States v. Saboonchi, 990 F. Supp. 2d 536, 556 (D. Md. 2014) ).419 F.Supp.3d 160 It is correct, as Defendan......
  • People v. Salcido, E067578
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    • May 2, 2019
    ...site information from third parties, despite no such requirement for standard business records]; United States v. Kolsuz (4th Cir. 2018) 890 F.3d 133, 144 [though routine border searches do not require suspicion, Riley requires that a border search of a cell phone is "permissible only ......
  • United States v. Bosyk, No. 18-4302
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • August 1, 2019
    ...we review its legal conclusions de novo, viewing the evidence in the light most favorable to the government. United States v. Kolsuz , 890 F.3d 133, 141–42 (4th Cir. 2018). For reasons that follow, we find no error.III. Before searching a home, the government generally must obtain a warrant......
  • United States v. Cano, No. 17-50151
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 16, 2019
    ...both required only reasonable suspicion and that was for the more intrusive forensic search."); see also United States v. Kolsuz , 890 F.3d 133, 137 (4th Cir. 2018) (concluding that a "forensic examination of Kolsuz’s phone must be considered a nonroutine border search, requiring ......
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50 cases
  • Alasaad v. Nielsen, No. 17-cv-11730-DJC
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • November 12, 2019
    ...nor reasonable to expect the average traveler to leave his digital devices at home when traveling.’ " United States v. Kolsuz, 890 F.3d 133, 144-45 (4th Cir. 2018) (quoting United States v. Saboonchi, 990 F. Supp. 2d 536, 556 (D. Md. 2014) ).419 F.Supp.3d 160 It is correct, as Defendan......
  • People v. Salcido, E067578
    • United States
    • California Court of Appeals
    • May 2, 2019
    ...site information from third parties, despite no such requirement for standard business records]; United States v. Kolsuz (4th Cir. 2018) 890 F.3d 133, 144 [though routine border searches do not require suspicion, Riley requires that a border search of a cell phone is "permissible only ......
  • United States v. Bosyk, No. 18-4302
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • August 1, 2019
    ...we review its legal conclusions de novo, viewing the evidence in the light most favorable to the government. United States v. Kolsuz , 890 F.3d 133, 141–42 (4th Cir. 2018). For reasons that follow, we find no error.III. Before searching a home, the government generally must obtain a warrant......
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    • August 16, 2019
    ...both required only reasonable suspicion and that was for the more intrusive forensic search."); see also United States v. Kolsuz , 890 F.3d 133, 137 (4th Cir. 2018) (concluding that a "forensic examination of Kolsuz’s phone must be considered a nonroutine border search, requiring ......
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