United States v. Kolsuz, Case No. 1:16-CR-53

• Decision Date: 05 May 2016
• Docket Number: Case No. 1:16-CR-53
• Citation: 185 F.Supp.3d 843
• Parties: United States of America v. Hamza Kolsuz
• Court: U.S. District Court — Eastern District of Virginia

185 F.Supp.3d 843

United States of America

v.Hamza Kolsuz

Case No. 1:16-CR-53

United States District Court, E.D. Virginia, Alexandria Division .

Signed May 5, 2016

Heather Alpino, Dennis Fitzpatrick, United States Attorney's Office, Alexandria, VA, for United States of America.

Todd M. Richman, Office of the Federal Public Defender, Alexandria, VA, Erica Lynn Marshall, Cause of Action, Washington, DC, for Hamza Kolsuz.

MEMORANDUM OPINION

T.S. Ellis, III, United States District Judge

Defendant is charged in a three-count indictment with (i) attempting to export from the United States various firearms parts on the United States Munitions List ("USML") without a license, in violation of 22 U.S.C. § 2778, (ii) attempting to smuggle goods from the United States, in violation of 18 U.S.C. § 554(a), and (iii) engaging in a conspiracy to commit those offenses, in violation of 18 U.S.C. § 371.

At issue is defendant's pre-trial motion to suppress evidence discovered as a result of the government's two warrantless searches of defendant's cell phone, which the government seized as defendant was about to board an airplane to leave the United States. The government first searched defendant's cell phone at the airport by reviewing the cell phone's most recent calls and text messages. Thereafter, following defendant's arrest, the government transported defendant's cell phone to an off-site facility and conducted an extensive forensic search of the information contained on the cell phone. Defendant's motion to suppress presents the following questions:

(i) whether the search of defendant's cell phone conducted at the airport and the search of defendant's cell phone conducted at the off-site location qualify as border searches; and

(ii) if so, whether both searches of defendant's cell phone qualify as routine border searches that do not require a warrant, probable cause, reasonable suspicion, or any level of individualized suspicion.

As the matter has been fully briefed and argued orally, it is now ripe for disposition.

I.¹

On January 25, 2016, defendant, a Turkish citizen who speaks little English, entered the United States at Miami International Airport on a B2 visitor's visa.

Thereafter, on February 1, 2016, Charles Reich, the United States Customs and Border Protection ("CBP") Special Agent assigned to the New York Homeland Security Investigations ("HSI") Field Office, called CBP Supervisory Officer Mike Augustino and Special Agent Jay Culley, who were on duty at Washington Dulles International Airport ("Dulles"), and informed them (i) that defendant had previously been stopped at John F. Kennedy International Airport ("JFK") attempting to export items on the USML from the United States to the Republic of Turkey without an export license, (ii) that defendant was scheduled to fly from Dulles to Turkey the following day, February 2, 2016, and (iii) that at Dulles, defendant's checked bags should be searched to determine whether they contained any firearms parts.

Thereafter, Special Agent Reich sent a follow up email to Supervisory Officer Augustino and Special Agent Culley, providing them with (i) defendant's name, date of birth, and Turkish citizenship, (ii) the summary written by the CBP officer who interviewed defendant when he entered the United States on January 25, 2016, and (iii) defendant's flight itinerary. Gov. Ex. 1, Reich Email. The email also stated, "[n]ot sure how his English is, on 1/08/2013 (2013SZ003360701) he was stopped by CBP exodus team at jfk with gun parts. Had a Turkish speaking [CBP officer] on site." Id. In the same email, Special Agent Reich again asked Supervisory Officer Augustino and Special Agent Culley to examine defendant's checked bags to look for firearms parts. Special Agent Reich also requested that Supervisory Officer Augustino and Special Agent Culley ask defendant various questions.²

Shortly thereafter, Supervisory Officer Augustino forwarded Special Agent Reich's email to CBP's Tactical Terrorist Response Team ("TTRT") and the Counterterrorism Response Team at Dulles. Thereafter, TTRT Supervisory Officer Lauren Colgan assigned CBP Officer Jonathan Budd to the matter. Both Supervisory Officer Colgan and Officer Budd reviewed Special Agent Reich's email.

After reading Special Agent Reich's email, Supervisory Officer Colgan reviewed a CBP report summarizing the circumstances involved in the January 8, 2013 stop of defendant at JFK. This report disclosed:

(i) that on January 8, 2013, a search of defendant's checked luggage revealed a Beretta .380 automatic pistol slide, a barrel, a guide rod, and a recoil spring;

(ii) that the CBP detained the parts and referred the matter to the United States Department of State to determine whether the parts were on the USML; and

(iii) that the parts were seized one week later after CBP was advised by the Department of State that the parts were listed on the USML and could not legally be exported from the United States without a license from the United States Department of State Directorate of Defense Trade Controls ("DDTC").

The CBP report also referred to an incident on December 2, 2012, in which firearms parts listed on the USML were found in defendant's luggage when he attempted to transport his luggage from the United States, through JFK, to Turkey without an export license from the Department of State. CBP agents seized these firearms parts. In addition to reviewing the CBP report, Supervisory Officer Colgan also reviewed TECS³ records memorializing the December 2, 2012 and January 8, 2013 stops of defendant at JFK, which disclosed defendant's prior attempts to export firearms parts without a license.

On February 2, 2016, defendant began his return trip to Turkey by checking in at Miami International Airport for a series of flights that would take him and his checked luggage through Cleveland Hopkins International Airport and Dulles to Istanbul, Turkey. After defendant and his checked luggage arrived at Dulles, defendant's checked bags were removed from defendant's inbound United Airlines flight, but at Supervisory Officer Colgan and Officer Budd's instruction, the checked bags were not loaded onto defendant's outbound Turkish Airlines flight.

Once Supervisory Officer Colgan and Officer Budd obtained defendant's two pieces of checked luggage, they performed an outbound customs examination of the luggage and discovered various firearms parts. Specifically, the inspection revealed eighteen handgun barrels, twenty-two 9mm handgun magazines, four .45 caliber handgun magazines, and one .22 caliber Glock caliber conversion kit.⁴ Based on their training and experience, Supervisory Officer Colgan and Officer Budd immediately knew that the barrels and the caliber conversion kit were listed on the USML, and therefore defendant could not lawfully remove these items from the United States without a DDTC export license.

After Supervisory Officer Colgan and Officer Budd discovered the firearms parts in defendant's checked luggage, Special Agent Culley arrived at Dulles. Shortly thereafter, Supervisory Officer Colgan, Officer Budd, Supervisory Officer Augustino, and Special Agent Culley conducted an outbound customs inspection of defendant on the jetway as he attempted to board his flight to Istanbul. Although a CBP Turkish translator was not present during the outbound customs inspection, a Turkish Airlines representative acted as a translator.⁵ During the outbound customs inspection, defendant admitted (i) that he was in possession of firearms parts, (ii) that he had initially flown into Miami and then travelled to Ohio, (iii) that while in Ohio, he attended a gun show where he made cash purchases of the firearms found in his checked luggage,⁶ and (iv) that he did not have a federal firearms license for the firearms and was unware of any other licensing requirement. Defendant also noted that because he did not bring very much cash into the United States, he used his ATM cards to withdraw the cash needed to purchase the firearms parts found in his checked luggage. At the time of the encounter, defendant possessed approximately $2,600 in cash. Defendant claimed that he purchased the firearms parts for personal use and that he had no intention of selling them in Turkey or any other country.

On the jetway at Dulles, CBP officers took defendant's iPhone 6 Plus Model #A1524 ("iPhone") from his person and placed it in defendant's carry-on luggage. Defendant was then transported—along with his carry-on luggage—to the CBP secondary inspection area. There, Supervisory Officer Colgan used the iPhone's touch screen to navigate the iPhone's operating system—which was not password protected—to reveal defendant's most recent text messages and calls. No further inspection of defendant's iPhone was conducted at that time. Also in the secondary inspection area, Supervisory Officer Colgan used the Automated Export System ("AES"), a government database for information related to exports, to ascertain: (i) whether defendant had ever filed an export license with CBP at the time of any export, and (ii) whether defendant was listed as a license registrant with DDTC. The AES revealed no records associated with defendant.

CBP Special Agent Adam Coppolo then read defendant his Miranda⁷ rights, and Special Agent Coppolo, Special Agent Culley, and CBP Special Agent James Donovan interviewed defendant. During the interview, defendant stated

(i) that he entered the United States with the intention of sightseeing in Florida with a friend, Bayram Bulut, whom defendant has known since 2006 or 2007;

(ii) that defendant was in possession of $9,000 in cash when he entered the United States;(iii) that defendant had visited numerous gun shops, pawn shops, and a gun show while he was in Florida;

(iv) that defendant had purchased the firearms parts at the gun show in Florida;

(v) that Bulut had not purchased any of the firearms parts;

(vi) that no one had ordered the firearms parts found in his checked luggage; and

(vii)

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