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May 9 — Although a border search is ‘nonroutine,' federal agents are justified in doing a forensic search of a Turkish man's cellphone at an off-site facility, the Eastern District of Virginia held May 5.
The court denied a motion to suppress evidence as a result of two warrantless searches of Hamza Kolsuz's cell phone because the searches constituted border searches not subject to the Fourth Amendment's warrant requirement.
Cellphone and computer technology creates confusion and uncertainty over whether border searches are routine or nonroutine because of the amount of information that can be stored in phones and the privacy concerns that follow. Nonroutine searches require a particularized showing of suspicion, but courts find it difficult to draw a line in terms of digital searches as to what constitutes a nonroutine search.
In February 2016, after spending time in the United States, Turkish citizen Hamza Kolsuz was stopped on a Dulles International Airport jetway. The detaining officers had already seized and searched Kolsuz's checked luggage, and were acting on information that Kolsuz was potentially smuggling firearms outside of the United States based on his past smuggling attempts.
On the jetway, the officers took Kolsuz's iPhone and transported him, his carry-ons and his phone to secondary inspection. There, an officer was able to manually reveal Kolsuz's most recent texts and calls as his phone was not password-protected. Kolsuz was arrested and a special agent took custody of his phone.
The phone was transported outside of Dulles for a forensic examination of the phone's data, from which an 896-page report was generated, although no data was actually pulled from remote storage.
Kolsuz moved pre-trial to suppress the data on the phone, arguing both searches of his phone were nonroutine border searches requiring some level of individualized suspicion.
The court noted that while the Supreme Court hasn't described explicitly what renders a border search nonroutine, circuit courts have analyzed the intrusiveness of a search in distinguishing routine and nonroutine border searches.
The court cited United States v. Saboonchi, 990 F. Sup.. 2 d 536 (D. Md. 2014), which held that a comprehensive forensic search of a cell phone—as compared to a manual search—was a nonroutine search because of its intrusiveness and therefore required reasonable suspicion to be exempt from the warrant requirement (14 DDEE 394, 8/14/14).
The government argued that the instant forensic search could be distinguished from the one in Saboonchi because the government didn't make a complete bitstream copy of all the space on the iPhone. The court wasn't swayed however.
“In other words, the government attempts to distinguish an extensive forensic search of a cell phone from a very extensive forensic search of a cell phone,” the court said. “This argument fails because it draws too fine a distinction…The forensic search in issue here was not as extensive as the forensic search in Saboonchi, to be sure, but both searches involved the use of specialized software to copy a large amount of data from an individual's cell phone.”
The court concluded that while the manual search of Kolsuz's phone was a routine border search, the subsequent forensic search was nonroutine, requiring some level of individualized suspicion.
The court held that reasonable suspicion was present because of the information the government had when it detained Kolsuz.
“Given these facts, government agents reasonably suspected that they would discover information on defendant's iPhone related not only to attempted export violations they had already discovered, but perhaps also information related to other ongoing attempts to export illegally various firearm parts,” the court said.
The court ultimately denied the motion to suppress evidence.
Judge T.S. Ellis III wrote the order.
Todd M. Richman, of the Federal Public Defenders Office in Alexandria, Va., represented Kolsuz.
Heather Alpino, of the U.S. Attorney's Office in Alexandria, Va., represented the government.
To contact the reporter on this story: Tera Brostoff in Washington at firstname.lastname@example.org.
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