United States v. Kolsuz
March 21, 2017
United States v. Kolsuz involves the search of an iPhone under the so-called “border search” exception to the Fourth Amendment’s prohibition on warrantless searches and seizures.
In May 2016, a district court in Virginia ruled that agents could conduct “manual” searches of electronic devices at the border without suspicion, but that “reasonable suspicion” of criminal activity is required to conduct more invasive “forensic” searches. While the decision is consistent with the Ninth Circuit’s approach in United States v. Cotterman, the Brennan Center believes it does not go far enough in light of rapid advances in technology and the Supreme Court’s landmark decision in Riley v. California, requiring a warrant to search a cell phone incident to arrest.
On appeal to the Fourth Circuit, the Brennan Center filed an amicus brief arguing that the border search exception should not apply to digital devices, like an iPhone, and that all such searches should require a warrant based on probable cause. Specifically, the brief argues that: (1) digital devices contain and access vast quantities of highly intimate information; (2) the border search exception is narrow and does not justify warrantless searches of digital devices; and (3) all searches of digital devices are “non-routine” and therefore outside the domain of the border search exception.
The Brennan Center filed the brief in conjunction with the Electronic Frontier Foundation, Asian Americans Advancing Justice-Asian Law Caucus, the Council on American-Islamic Relations (CAIR) and CAIR affiliates in California, Florida, Missouri, New York, Ohio, and Dallas/Fort Worth, as well as the National Association of Criminal Defense Lawyers.
The brief can be found here.