United States v. Kolsuz involved the search of an iPhone under the so-called “border search” exception to the Fourth Amendment’s prohibition on warrantless searches and seizures.
Hamza Kolsuz was arrested at Washington Dulles International Airport on charges of attempted firearms smuggling. Federal customs agents found firearms parts in Kolsuz’s luggage and detained him as he was boarding a flight to Turkey. The agents took Kolsuz’s smart phone and subjected it to forensic analysis for almost a month, generating an 896-page report. In the trial that followed, the court relied in part on evidence from that report to convict Kolsuz of attempting to illegally smuggle firearms. Kolsuz moved to suppress the evidence that was obtained through the warrantless search of his phone.
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 was consistent with the Ninth Circuit’s approach in United States v. Cotterman, the Brennan Center believed it did 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 argued 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.
In May 2018, the Fourth Circuit Court of Appeals ruled that a forensic cell phone search conducted at the border may only be performed upon a showing of individualized suspicion. A forensic search uses software or hardware to search all the content on a device and extract files from it. The court reasoned that based on the Supreme Court’s decision in Riley, a forensic search of a phone is a nonroutine border search that cannot be performed without reasonable suspicion.
In its ruling, the Fourth Circuit adopted the district court’s rationale that there is a distinction between manual and forensic cell phone searches. The district court provided an example based on a border search of a computer and disks in the 2005 Fourth Circuit case United States v. Ickes. In that case, the district court said, agents manually searched the devices “by accessing their content in the same way a typical user would do so.” By contrast, the border officers here used a device to extract files from Kolsuz’s phone. The court did not set out a warrant requirement for forensic searches, as the amici and defendant requested; instead, the court created an individualized suspicion standard, but it declined to rule on whether an official must show more than reasonable suspicion to satisfy that standard.
Note: On May 23, 2018, the Eleventh Circuit split with the Fourth and Ninth Circuits on this issue, ruling in United States v. Touset that the Fourth Amendment does not require suspicion for forensic searches of electronic devices at the border.