United States v. Saboonchi

• Citation: 990 F.Supp.2d 536
• Decision Date: 07 April 2014
• Docket Number: Criminal Case No. PWG–13–100.
• Parties: UNITED STATES of America v. Ali SABOONCHI, et al.
• Court: U.S. District Court — District of Maryland

990 F.Supp.2d 536

UNITED STATES of America

v.Ali SABOONCHI, et al.

Criminal Case No. PWG–13–100.

United States District Court,

D. Maryland,

Southern Division.

Signed April 7, 2014.

Christine Manuelian, Rod J. Rosenstein, Office of the United States Attorney, Baltimore, MD, for United States of America.

Elizabeth Genevieve Oyer, Office of the Federal Public Defender, Baltimore, MD, for Ali Saboonchi, et al.

MEMORANDUM OPINION

PAUL W. GRIMM, District Judge.

Defendant Ali Saboonchi is alleged to have violated U.S. export restrictions on trade with the Islamic Republic of Iran. On July 18, 2013, Saboonchi moved to suppress the fruits of warrantless forensic searches of his smartphones and flash drive performed under the authority of the border search doctrine after they were seized at the U.S.—Canadian border. At a hearing on September 23, 2013, I issued an oral opinion denying the motion but stated that, in light of the difficult issues raised by a forensic search of digital devices seized at the border, I would be issuing a written opinion further explaining my reasoning. Supplemental briefing was requested and permitted. I now hold that, under the facts presented by this case, a forensic computer search cannot be performed under the border search doctrine in the absence of reasonable suspicion. Because the officials here reasonably suspected that Saboonchi was violating export restrictions, Defendant's Motion to Suppress is denied.

I. BACKGROUND

Defendant Ali Saboonchi is a dual citizen of the United States and the Islamic Republic of Iran. Gov't Opp'n 3, ECF No. 65. On March 4, 2013, Saboonchi was indicted by a grand jury on four counts of unlawful export to an embargoed country and one count of conspiracy to export to an embargoed country, in violation of the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. §§ 1702 & 1705, and the Iranian Transactions and Sanctions Regulations (“ITSR”), 31 C.F.R. § 560.203–204. See Indictment, ECF No. 1. On August 22, 2013, the grand jury returned a superseding indictment that added more alleged co-conspirators, an additional count, and additional acts in furtherance of the alleged conspiracy, and revised the alleged start of the conspiracy from November 2009 to September 2009. Superseding Indictment, ECF No. 66.¹

On July 18, 2013, Saboonchi filed several motions including a Motion to Suppress Evidence, ECF No. 58.

Most of the basic facts are undisputed. Saboonchi and his wife were stopped by United States Customs and Border Protection (“CBP”) agents on March 31, 2012 at the Rainbow Bridge outside of Buffalo, New York when returning from a daytrip to the Canadian side of Niagara Falls. Def.'s Mot. 2. Saboonchi and his wife were questioned separately, and Saboonchi was questioned in a locked room where he was “required to remain in the room and directed to answer questions by a federal agent.” Id. “Without Defendant's knowledge and consent, all electronics were seized with intent to search.” Id. at 3. Eventually, Saboonchi and his wife were allowed to reenter the United States, but an Apple iPhone, a Sony Xperia phone, and a Kingston DT101 G2 USB flash drive (the “Devices”) were seized; Saboonchi claims that “no clear justification was given for” keeping the Devices. Id. Saboonchi was given a “Detention Notice and Custody Receipt for Detained Property,” CBP Form 6051D, listing the devices. CBP Form 6051D, Def's Mot. Ex. B, ECF No. 58–2.

On April 4, 2012, a Homeland Security Investigations (“HSI”) special agent imaged each of the Devices, see ICE Report of Investigation Continuation (the “ICE Reports”), Def.'s Mot. Ex. A, ECF No. 58–1.² Thereafter, the image of each device was forensically searched using specialized software. Id.

On April 13, 2012, Saboonchi met with two HSI agents in Baltimore who returned the Devices to him. Def.'s Mot. 6; Gov't Opp'n 25. At that time, a conversation occurred that Saboonchi characterized as an “interrogat[ion],” Def.'s Mot. 6, and that, at the very least, confirmed that Saboonchi owned two of the Devices and included questioning about an internship Saboonchi once had with an Iranian company and his knowledge of restrictions on doing business with Iran, Gov't Opp'n 25.

Saboonchi moved to suppress any evidence obtained from the Devices, any statements that he made to CBP on March 31, 2012, and any statements that he made to HSI on April 13, 2012. See Def.'s Mot. Saboonchi's motion relied on his argument that the warrantless search of the Devices at the border—and their later forensic search—violated the Fourth Amendment's prohibition of unreasonable searches and seizures, id. at 7–8, that any statements made on March 31 were obtained in violation of the Fifth Amendment's Self–Incrimination Clause, id. at 6–7, and that any statements made on April 13 resulted from the improper search of Saboonchi's Devices, id., and therefore are the “fruit of the poisonous tree,” Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939). The Government responded, taking the position that the search of the Devices was a routine border search that required neither a warrant nor particularized suspicion and that Saboonchi's statements did not result from custodial interrogation. Gov't Opp'n 28–29. Shortly before the hearing on the motion to suppress, I sent a letter to the parties seeking additional briefing as to certain matters, Letter to Counsel (Sept. 13, 2013), ECF No. 73, and the parties responded shortly thereafter, see Gov't Supp. Mots. Resp., ECF No. 75; Def.'s Supp. Briefing Submission, ECF No. 76.

A hearing was held before me on September 23, 2013, at which the Government presented testimony from two witnesses: CBP Officer Kenneth Burkhardt, see Hr'g Tr., Testimony of Kenneth Burkhardt (“Burkhardt Tr.”), ECF No. 85, and HSI Special Agent Kelly Baird, see Hr'g Tr., Testimony of Kelly Baird (“Baird Tr.”), ECF No. 84.

A. Testimony of Kenneth Burkhardt

Officer Burkhardt was one of the officers who performed a secondary screening on Saboonchi when he re-entered the United States via the Rainbow Bridge in Niagara Falls, New York on March 31, 2013, Burkhardt Tr. 6:4–9, and his testimony primarily relied on his recollection as refreshed by his report of the events of March 31, 2012, as well as his knowledge of standard practices at the Rainbow Bridge facility. According to Burkhardt, people traveling by car go through primary screening in one of about seventeen lanes. Id. at 6:17–21. Although Burkhardt lacked firsthand knowledge of Saboonchi's primary inspection, it was his understanding that Saboonchi arrived at the Rainbow Bridge facility at 9:47 p.m., id. at 22:11, and was referred to secondary inspection because his name had produced a “hit” in the TECS database during primary screening, id. at 38:11–17.³

In general, once a car is diverted to secondary inspection, it is approached by one or more officers, with weapons holstered, to escort the car to secondary inspection. Id. at 7:13–8:15. When the car reaches the main CBP building, a “stop stick” tire deflation device is placed between the front and back tires of the car to prevent flight. Id. at 17:20–23. The passengers are escorted inside and a secondary inspection typically is conducted in a room off of the building's lobby called the “medium secondary.” Id. at 9:11–16. The medium secondary is reached through a locked door, which is operated remotely to buzz people in or out. Id. at 15:17–16:5. The room contains several chairs and a metal table, id. at 15:7–16:5; Hr'g Ex. 1F–1H, and has windows that are tinted on their bottom portion. See Hr'g Ex. 1F–1H. Saboonchi and his wife were taken into the secondary inspection area and Officer Burkhardt took their passports and Saboonchi's wife's visa. Burkhardt Tr. 18:8–19:24.

Burkhardt ran his own query of TECS and discovered two flags on Saboonchi, one out of Washington, D.C. and one out of Baltimore. Id. at 20:5–7. Because of those flags, at 9:52 p.m., Burkhardt contacted HSI Special Agent Kelly Baird about Saboonchi; Baird told him to detain Saboonchi's Devices. Id. at 20:8–23; 22:11–12.

At 10:00 p.m., Burkhardt interviewed Saboonchi and his wife. Id. at 22:15. The interview consisted of routine questions regarding their citizenship, their reason for traveling to Canada, and other information relevant to their readmission to the United States. Id. at 23:21–24:10. The interview did not last more than thirty minutes, and may have been as short as ten to fifteen minutes. Id. at 29:3–20. Burkhardt did not give Miranda warnings to Saboonchi or his wife, id. at 31:7–9, and testified that they

are allowed to refuse to answer questions, but until we determine their admissibility, I mean, a thorough search of the car, a thorough search of them, I mean, we are going to, so to speak, get to the bottom of what we want to—I mean, 99.9 percent of people answer questions.

Id. at 68:2–6. Although Burkhardt did not recall the details of questioning Saboonchi and his wife, he stated that his standard practice would be to separate a car's passengers and question them separately. Id. at 33:11–14. At this time they also would have been asked to empty their pockets, known as a “pocket dump,” id. at 21:14–18, 65:16–21, but they probably were not subjected to a pat-down or other more invasive search of their persons, id. at 30:16–22. At approximately 10:30 p.m., a “seven-point exam,” which is a detailed examination of Saboonchi's car, was performed. Id. at 22:18–23:2. Saboonchi and his wife were not free to leave during this process. Id. at 46:17–47:14.

The HSI duty agent at the Rainbow Bridge, Cornelius O'Rourke, was contacted at 10:55 p.m. and responded at 11:20 p.m. Id. at 23:9–12. At 11:55 p.m., HSI Special Agent Kelly Baird requested that all of the Saboonchis' information be turned over to the local Joint Terrorism Task Force (“JTTF”) agent, Jeff Alrich. Id. at 23:12–15. The local chief was informed of all that had...