United States v. Hamza Kolsuz

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4687
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HAMZA KOLSUZ,
Defendant - Appellant.
------------------------------
ELECTRONIC FRONTIER FOUNDATION; ASIAN AMERICANS
ADVANCING JUSTICE-ASIAN LAW CAUCUS; BRENNAN CENTER FOR
JUSTICE; COUNCIL ON AMERICAN-ISLAMIC RELATIONS; CAIR
CALIFORNIA; CAIR FLORIDA; CAIR MISSOURI; CAIR NEW YORK; CAIR
OHIO; CAIR DALLAS/FORT WORTH; NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS; CAUSE OF ACTION INSTITUTE;
COMMITTEE FOR JUSTICE; FLOOR64, INC.; AMERICAN CIVIL
LIBERTIES UNION; ACLU OF VIRGINIA; ACLU OF MARYLAND; ACLU
OF NORTH CAROLINA; ACLU OF SOUTH CAROLINA; ACLU OF WEST
VIRGINIA,
Amici Supporting Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. T.S. Ellis, III, Senior District Judge. (1:16-cr-00053-TSE-1)
Argued: October 26, 2017 Decided: May 9, 2018
Before WILKINSON, MOTZ, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Harris wrote the opinion, in which Judge Motz
joined. Judge Wilkinson wrote a separate opinion concurring in the judgment.
ARGUED: Todd M. Richman, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Jeffrey Michael Smith, National Security Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Esha Bhandari, AMERICAN CIVIL LIBERTIES UNION, New York, New York, for
Amici American Civil Liberties Union, ACLU of Virginia, ACLU of Maryland, ACLU
of North Carolina, ACLU of South Carolina, and ACLU of West Virginia. ON BRIEF:
Geremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Dana Boente, United States Attorney,
Mary B. McCord, Acting Assistant Attorney General for National Security, Heather
Alpino, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. Hope R. Amezquita, AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF VIRGINIA, Richmond, Virginia, Nathan Freed Wessler, Vera
Eidelman, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New
York, for Amici American Civil Liberties Union, ACLU of Virginia, ACLU of
Maryland, ACLU of North Carolina, ACLU of South Carolina, and ACLU of West
Virginia. Curt Levey, THE COMMITTEE FOR JUSTICE, Washington, D.C., Erica L.
Marshall, CAUSE OF ACTION INSTITUTE, Washington, D.C., for Amici Cause of
Action Institute, The Committee for Justice, and Floor64, Inc. Sophia Cope, Adam
Schwartz, ELECTRONIC FRONTIER FOUNDATION, San Francisco, California, for
Amici Electronic Frontier Foundation, Asian Americans Advancing Justice-Asian Law
Caucus, Council on American-Islamic Relations (CAIR), CAIR California, CAIR
Florida, CAIR Missouri, CAIR New York, CAIR Ohio, CAIR Dallas/Fort Worth, and
The National Association of Criminal Defense Lawyers. Michael Price, BRENNAN
CENTER FOR JUSTICE AT NYU SCHOOL OF LAW, New York, New York, for
Amicus Brennan Center for Justice.
2
PAMELA HARRIS, Circuit Judge:
Hamza Kolsuz was detained at Washington Dulles International Airport while
attempting to board a flight to Turkey because federal customs agents found firearms
parts in his luggage. After arresting Kolsuz, the agents took possession of his smartphone
and subjected it to a month-long, off-site forensic analysis, yielding a nearly 900-page
report cataloguing the phone’s data. The district court denied Kolsuz’s motion to
suppress, applying the Fourth Amendment’s border search exception and holding that the
forensic examination was a nonroutine border search justified by reasonable suspicion.
Kolsuz ultimately was convicted of attempting to smuggle firearms out of the country
and an associated conspiracy charge.
Kolsuz now challenges the denial of his suppression motion. First, he argues that
the forensic analysis of his phone should not have been treated as a border search at all.
According to Kolsuz, once both he and his phone were in government custody, the
government interest in preventing contraband from crossing the border was no longer
implicated, so the border exception should no longer apply. Second, relying chiefly on
Riley v. California, 134 S. Ct. 2473 (2014) (holding that search incident to arrest
exception does not apply to searches of cell phones), Kolsuz urges that the privacy
interest in smartphone data is so weighty that even under the border exception, a forensic
search of a phone requires more than reasonable suspicion, and instead may be conducted
only with a warrant based on probable cause.
We agree with the district court that the forensic analysis of Kolsuz’s phone is
properly categorized as a border search. Despite the temporal and spatial distance
3
between the off-site analysis of the phone and Kolsuz’s attempted departure at the airport,
the justification for the border exception is broad enough to reach the search in this case.
We also agree with the district court that under Riley, the forensic examination of
Kolsuz’s phone must be considered a nonroutine border search, requiring some measure
of individualized suspicion. What precisely that standard should be – whether reasonable
suspicion is enough, as the district court concluded, or whether there must be a warrant
based on probable cause, as Kolsuz suggests – is a question we need not resolve:
Because the agents who conducted the search reasonably relied on precedent holding that
no warrant was required, suppression of the report would be inappropriate even if we
disagreed. Accordingly, we affirm the judgment of the district court.
I.
A.
We begin with the Fourth Amendment principles that govern this case. As a
general rule, the Fourth Amendment requires that law enforcement searches be
accompanied by a warrant based on probable cause. Arizona v. Gant, 556 U.S. 332, 338
(2009). But there are exceptions, and one such exception typically covers our nation’s
borders. At a border – or at a border’s “functional equivalent,” like the international
airport at which Kolsuz was intercepted – government agents may conduct “routine”
searches and seizures of persons and property without a warrant or any individualized
suspicion. Almeida-Sanchez v. United States, 413 U.S. 266, 272–73 (1973); United
States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985). The Supreme Court has
4
described the border exception as “grounded in the recognized right of the sovereign to
control, subject to substantive limitations imposed by the Constitution, who and what
may enter the country.” United States v. Ramsey, 431 U.S. 606, 620 (1977); see United
States v. Flores-Montano, 541 U.S. 149, 152 (2004) (border exception rests on
government interest in “preventing the entry of unwanted persons and effects”). Routine
searches and seizures at the border therefore are exempted from standard Fourth
Amendment requirements so that the government can “prevent the introduction of
contraband” into the country and bar entry by those who would bring harm across the
border, “whether that be communicable diseases, narcotics, or explosives.” Montoya de
Hernandez, 473 U.S. at 537, 544.
In this case, the search in question was initiated when Kolsuz attempted to exit the
country, not to enter. But we have long held that the rationales underlying the border
exception extend to exit as well as entry searches. See United States v. Oriakhi, 57 F.3d
1290, 1296–97 (4th Cir. 1995). The “fundamental principles of national sovereignty”
that are the basis for the border search exception, we have explained, apply equally to
government efforts to “protect[] and monitor[] exports from the country” as they do to
efforts to control imports. Id. at 1296, 1297. Thus, with respect to exit searches, the
border search exception is justified by the government’s power to regulate the export of
currency and other goods. Id. at 1297. And that power surely extends to controls on the
exports of dangerous weapons, like the firearms parts at issue here. See, e.g., United
States v. Boumelhem, 339 F.3d 414, 422–23 (6th Cir. 2003) (applying border exception to
exit search of shipping container believed to hold smuggled firearms).
5
Even at the border, however, the government’s authority is not without limits. The
“ultimate touchstone” of the Fourth Amendment, Riley, 134 S. Ct. at 2482, remains
“reasonableness.” See Montoya de Hernandez, 473 U.S. at 538. While suspicionless
border searches generally are “reasonable simply by virtue of the fact that they occur at
the border,” Ramsey, 431 U.S. at 616, the Supreme Court also has recognized a category
of “nonroutine” border searches that are constitutionally reasonable only if based on
individualized suspicion. See Montoya de Hernandez, 473 U.S. at 541 (holding that
overnight detention for monitored bowel movement followed by rectal examination is
“beyond the scope of a routine customs search” and permissible under the border
exception only with reasonable suspicion). Such nonroutine border searches, the Court
has suggested, include “highly intrusive searches” that implicate especially significant
“dignity and privacy interests,” as well as destructive searches of property and searches
carried out in “particularly offensive” manners. Flores-Montano, 541 U.S. at 152, 154 &
n.2.
B.
In January 2016, Turkish citizen Hamza Kolsuz entered the United States in
Miami, Florida, on a tourist visa. By that time, Kolsuz already was well known to
government authorities. In December 2012, agents had discovered 163 firearms parts in
his luggage when Kolsuz checked in for a flight to Turkey at John F. Kennedy
International Airport in New York. The parts were listed on the United States Munitions
List (“USML”), subjecting them to export controls and a license requirement under the
Arms Export Control Act, 22 U.S.C. § 2778(b)(2). See 22 C.F.R. §§ 120.2, 121.1 (setting
6
out USML, and defining “defense articles and defense services” subject to control under
the Act). Agents explained the licensing requirements to Kolsuz and his companions,
and ultimately seized the weapons parts. Just one month later, in January 2013, the
process more or less repeated itself: Kolsuz arrived at JFK Airport for a flight to Turkey;
a search of his checked luggage revealed firearms parts; and a licensing determination
disclosed that although the parts were listed on the USML, Kolsuz had not obtained the
requisite export license.
When Kolsuz reentered the country on January 25, 2016, the authorities were
ready for him. On February 1, 2016, Charles Reich, a Special Agent with United States
Customs and Border Protection (“CBP”) in New York, reached out to CBP officers on
duty at Washington Dulles International Airport (“Dulles”) to let them know that Kolsuz,
who had been stopped before while attempting to smuggle firearms parts out of the
country, would be traveling from Dulles to Turkey the following day. Agent Reich urged
the officers to search Kolsuz’s luggage for firearms parts, and followed up with an email
containing additional information and a list of questions to ask Kolsuz about his
associates and activities.
On February 2, 2016, Kolsuz began his return trip by checking in at Miami
International Airport for a series of flights that would take him through Dulles and on to
Turkey. When Kolsuz and his luggage reached Dulles, CBP officers Lauren Colgan and
7
Jonathan Budd conducted an outbound customs examination of his two checked bags. 1
Once again, they found multiple firearms parts: 18 handgun barrels, 22 9mm handgun
magazines, four .45 caliber handgun magazines, and one .22 caliber conversion kit.
Colgan and Budd, thanks to their training, immediately recognized that the barrels and
conversion kit were listed on the USML and thus could not be removed from the country
without a license. And when Kolsuz was stopped on the jetway as he attempted to board
his flight to Turkey, he admitted that he was in possession of firearms parts for which he
did not have a federal license.
After transporting Kolsuz to a secondary inspection area, the officers conducted
what would be the first of two searches of Kolsuz’s iPhone 6 Plus. This search – often
referred to as a “manual” search – involved using the iPhone’s touch screen, which was
not password protected, to scroll through Kolsuz’s recent calls and text messages. The
officers also confirmed through a records search that Kolsuz had no export license or
pending application for a license. After an interview with a number of CBP officers,
Kolsuz was arrested.
At that point, CBP Special Agent Adam Coppolo initiated the second search of
Kolsuz’s phone, this one commonly known as a “forensic” search. Coppolo first
transported the phone approximately four miles from Dulles to the Homeland Security
1
Kolsuz never has suggested that this standard customs search of his checked
luggage presents any constitutional problem. Nor could he: It is long established that a
search of luggage taken from or bound for an overseas flight is a routine border search
that may be conducted on a suspicionless basis. See Montoya de Hernandez, 473 U.S. at
538; see also, e.g., United States v. Ezeiruaku, 936 F.2d 136, 140–41 (3d Cir. 1991).
8
Investigations office in Sterling, Virginia. There, Computer Forensic Agent Michael Del
Vacchio attached the phone to a Cellebrite Physical Analyzer, which extracts data from
electronic devices, and conducted an advanced logical file system extraction. The phone
remained in airplane mode throughout, so the forensic examination did not reach data
stored remotely – or “in the cloud” – and was instead limited to data stored on the phone
itself. Even so, the data extraction process lasted for a full month, and yielded an 896-
page report that included Kolsuz’s personal contact lists, emails, messenger
conversations, photographs, videos, calendar, web browsing history, and call logs, along
with a history of Kolsuz’s physical location down to precise GPS coordinates.
C.
Kolsuz was indicted on three counts: (i) attempting to export firearms parts on the
USML without a license, in violation of the Arms Export Control Act, 22 U.S.C. §§
2278(b) and (c); (ii) attempting to smuggle goods from the United States in violation of
18 U.S.C. § 554(a); and (iii) conspiracy to commit those offenses, in violation of 18
U.S.C. § 371.
Before trial, Kolsuz filed a motion to suppress the report generated by the forensic
examination of his phone, arguing primarily that the border exception did not apply to the
search. According to Kolsuz, a forensic search of a phone that occurs miles away from
an airport and for a month after an attempted departure does not constitute a “border
search.” Moreover, Kolsuz contended, the rationales justifying the border exception were
not implicated in this case, because at the time of the search there was no prospect that
either he or his phone – both securely in government custody – would be crossing the
9
border. Instead, Kolsuz argued, the forensic search should be treated as a search incident
to his arrest, and under Riley v. California, cell phones may be searched incident to arrest
only with a warrant based on probable cause.
In a comprehensively reasoned opinion, the district court denied Kolsuz’s
suppression motion. United States v. Kolsuz, 185 F. Supp. 3d 843, 860 (E.D. Va. 2016).
The court held first that the forensic search of Kolsuz’s phone was properly evaluated as
a border search. That Kolsuz had been arrested, the district court explained, did not
transform the forensic examination into a search incident to arrest or render the border
exception inapplicable; both the Fourth Circuit and other courts have held that a border
search may be conducted after a traveler is arrested and no longer in a position to cross
the border. Id. at 851 (citing United States v. Ickes, 393 F.3d 501, 507 (4th Cir. 2005)).
Similarly, the court found, it is well established that a search initiated at the border may
fall under the border exception even if it ultimately is conducted off-site and over a long
period of time. Id. at 851–52.
Now applying the border exception, the district court went on to consider whether
the forensic search of Kolsuz’s smartphone was a routine border search, subject to no
Fourth Amendment requirements, or whether, as Kolsuz urged, it was a nonroutine
search that required some degree of individualized suspicion. The court acknowledged
that in Ickes, the Fourth Circuit treated as routine a border inspection of a computer’s
contents, accessed manually “in the same way a typical user would” and without any
“sophisticated forensic analysis.” Id. at 853 (citing Ickes, 393 F.3d at 502–03). But that
decision, the court determined, “does not address whether more sophisticated forensic
10
searches” also may be classified as routine, id. at 854, particularly in light of the Supreme
Court’s subsequent decision in Riley and its emphasis on the significant privacy interests
in the digital contents of phones.
The court concluded that while the manual search of Kolsuz’s iPhone at the airport
was a routine border search, 2 the off-site forensic analysis of the phone’s data qualified as
a nonroutine search. After Riley, the court found, a forensic search of a phone no longer
can be analogized to an ordinary search of luggage or some other container at the border,
given the breadth and sensitivity of the private information that may be uncovered. It is
“difficult to conceive of a property search more invasive or intrusive than a sophisticated,
digital search of a cell phone,” the court concluded, which might be compared to a “body
cavity search” of a phone. Id. at 856 (quoting United States v. Saboonchi, 990 F. Supp.
2d 536, 569 (D. Md. 2014)).
As a nonroutine border search, the court went on to hold, the forensic analysis of
Kolsuz’s phone required particularized suspicion, in the form of the familiar reasonable
suspicion standard. The court rejected the more demanding requirement of a warrant
based on probable cause, noting that no reported case has held a border search to that
standard. Instead, courts consistently have deemed reasonable suspicion sufficient to
2
Although the district court addressed this initial search in the course of its
reasoning, Kolsuz’s suppression motion is limited to the subsequent forensic
examination. On appeal, Kolsuz expressly disclaims any challenge to the manual search
of his phone at Dulles, which in any event did not reveal information used against him at
trial.
11
justify even the most intrusive of nonroutine border searches, including body cavity and
alimentary canal searches. Because the government in this case had “more than
reasonable suspicion” that a forensic examination of Kolsuz’s phone would reveal
evidence of both past and ongoing attempts to export firearms parts illegally, the court
concluded, the forensic search was reasonable under the Fourth Amendment. Id. at 859,
860.
The parties consented to a bench trial, and the district court found Kolsuz guilty of
all three counts against him. In finding that Kolsuz acted with the requisite willfulness,
the court relied in part on messages Kolsuz exchanged with a co-conspirator, obtained
from the forensic search of Kolsuz’s phone. 3 The court ultimately entered judgment only
on the Arms Export Control Act and conspiracy counts against Kolsuz, dismissing the
smuggling charge on the government’s motion. Kolsuz was sentenced to 30 months in
prison and three years of supervised release, and this timely appeal followed.
II.
Kolsuz’s appeal is a narrow one, and we begin by clarifying what is and is not in
front of us today. First, Kolsuz does not challenge the manual search of his smartphone,
undertaken on-site at the airport as he tried to depart for Turkey. We thus have no
3
The court also adopted an independent willful blindness theory, under which it
was “unnecessary to rely” on the messages recovered from Kolsuz’s phone. J.A. 243
n.34. As the government recognizes, however, that theory does not apply to the
conspiracy charge of which Kolsuz was convicted, and thus does not provide an
alternative basis for affirming the district court judgment in full.
12
occasion to consider application of the border exception to manual searches of electronic
devices, conducted at the border and roughly contemporaneously with an attempted
crossing. Cf. United States v. Molina-Isidoro, 884 F.3d 287, 289 (5th Cir. 2018)
(sustaining manual search of phone at border under good-faith exception to Fourth
Amendment exclusionary rule).
Nor does Kolsuz challenge the seizure of his phone, either initially at the airport or
later at the Homeland Security Investigations office where it was forensically examined.
The Fourth Amendment protects property as well as privacy, see Flores-Montano, 541
U.S. at 154, and a seizure reasonable at its inception must remain reasonable in scope and
duration to satisfy the Fourth Amendment, see Montoya de Hernandez, 473 U.S. at 541–
42. But perhaps because he was in custody while the government undertook its month-
long forensic analysis, Kolsuz has not asserted any impairment of a possessory interest in
his phone. Accordingly, we do not address whether and under what circumstances an
extended confiscation of a traveler’s phone – quite apart from any search undertaken –
might constitute an unreasonable seizure of property for Fourth Amendment purposes.
Cf. Saboonchi, 990 F. Supp. 2d at 569 (noting that forensic searches of digital devices
may deprive individuals of their possessions for periods of days or weeks).
That leaves the question that is raised by this appeal: whether the forensic search
of Kolsuz’s phone, and the associated invasion of Kolsuz’s privacy, was justified under
the border search exception. In considering the district court’s denial of Kolsuz’s motion
to suppress, we review that court’s legal conclusions de novo and its factual findings for
clear error, considering the evidence in the light most favorable to the government. See
13
United States v. Palmer, 820 F.3d 640, 648 (4th Cir. 2016). For the reasons given below,
we affirm.
A.
Kolsuz’s primary argument is that the forensic analysis of his phone was not
subject to the border search exception at all. Once he was arrested and his phone seized
and transported miles from the airport, Kolsuz contends, the government interest that
underlies the border search exception – preventing contraband from crossing a border –
was no longer at issue, and the border exception was therefore inapplicable. Rather,
standard Fourth Amendment rules governed the forensic search, and required a warrant
based on probable cause because the search was incident to Kolsuz’s arrest. See Riley,
134 S. Ct. at 2485, 2493–94 (holding that the search incident exception does not apply to
cell phones, which generally may be searched incident to arrest only with probable cause
and a warrant). We cannot agree.
First, as the district court explained, the border exception is not rendered
inapplicable because a search initiated at a border ultimately is conducted at some
physical or temporal remove. See Kolsuz, 185 F. Supp. 3d at 851–52 (“as several courts
have held, an off-site forensic search of an electronic device over a long period of time is
nonetheless a border search”); see also, e.g., United States v. Cotterman, 709 F.3d 952,
961–62 (9th Cir. 2013) (en banc) (applying border exception to forensic examination of
laptop computer conducted miles from and days after attempted border crossing);
Saboonchi, 990 F. Supp. 2d at 548–49, 561 (applying border exception to forensic search
of cell phones conducted several hundred miles from border crossing). Indeed, after
14
pressing this point before the district court, Kolsuz concedes it on appeal, agreeing that
the location and timing of the search in this case are consistent with the border search
exception.
Nor, as the district court determined, does the fact of Kolsuz’s arrest transform the
examination of his phone into a search incident to arrest, triggering Riley and calling for a
search warrant based on probable cause. In Ickes, our court applied the border search
exception to approve a manual search of computer data that occurred only after the
defendant had been arrested, obviating any threat of an imminent border crossing. See
393 F.3d at 503; see also, e.g., United States v. Ramos, 190 F. Supp. 3d 992, 998–1000
(S.D. Cal. 2016) (rejecting argument that arrest renders border exception inapplicable by
making it impossible for defendant or contraband to cross border). Kolsuz attempts to
distinguish Ickes on the ground that it involved an entry search rather than the exit search
at issue here, but for these purposes, it makes no difference: As we have explained,
where the relevant governmental interests are present, the border search exception
extends equally to entry and exit searches, see Oriakhi, 57 F.3d at 1296–97, and any rule
carving out post-arrest searches from that doctrine would apply equally in both contexts,
as well.
In its strongest form, Kolsuz’s argument combines all of these factors – his arrest
as he sought to depart the country, the phone in government custody miles from the
border, the month-long gap between the action at the airport and the end of the search –
and argues that taken together, they show that the search in this case is entirely
“untethered” from any justification behind the border exception. The rationale allowing
15
outgoing border searches, as Kolsuz describes it, is limited to intercepting contraband as
it crosses the national border. Here, with the phone as well as the firearms parts seized
by the government and Kolsuz under arrest, there was no contraband poised to exit the
country and thus no nexus to that rationale. When that is the case, Kolsuz argues, the
border search exception does not apply, because the concerns underlying a warrant
exception “define the boundaries of the exception.” See Gant, 566 U.S. at 339.
Kolsuz’s foundational premise is correct: As a general rule, the scope of a warrant
exception should be defined by its justifications. See Riley, 134 S. Ct. at 2484–88 (asking
whether “application of the search incident to arrest doctrine to this particular category of
effects would untether the rule from the justifications underlying the [search incident to
arrest] exception”). As a result, where the government interests underlying a Fourth
Amendment exception are not implicated by a certain type of search, and where the
individual’s privacy interests outweigh any ancillary governmental interests, the
government must obtain a warrant based on probable cause. See id. At some point, in
other words, even a search initiated at the border could become so attenuated from the
rationale for the border search exception that it no longer would fall under that exception.
See Molina-Isidoro, 884 F.3d at 295–97 (Costa, J., concurring) (questioning whether
search for evidence as opposed to contraband is consistent with justifications for border
search exception).
But this is not that case. On the facts here, the link between the search of Kolsuz’s
phone and the interest that justifies border searches was sufficient to trigger the border
exception on any account of a “nexus” requirement. Government agents forensically
16
searched Kolsuz’s phone because they had reason to believe – and good reason to
believe, in the form of two suitcases filled with firearms parts – that Kolsuz was
attempting to export firearms illegally and without a license. See Kolsuz, 185 F. Supp. 3d
at 859–60. That is a transnational offense that goes to the heart of the border search
exception, which rests in part on “the sovereign interest of protecting and monitoring
exports from the country.” See Oriakhi, 57 F.3d at 1297; see also Boumelhem, 339 F.3d
at 423 (holding that exit search for firearms implicates “significant government interests”
not only in controlling exports but also in national security). This is not a case, in other
words, in which the government invokes the border exception on behalf of its generalized
interest in law enforcement and combatting crime. Cf. United States v. Vergara, 884
F.3d 1309, 1317 (11th Cir. 2018) (Pryor, J., dissenting) (relying on “general law
enforcement justification” to approve evidentiary border searches would “untether the
[border search exception] from its justifications”). Here, there is a direct link between the
predicate for the search and the rationale for the border exception.
Moreover, as the district court explained, the agents who searched Kolsuz’s phone
reasonably believed that their search would reveal not only evidence of the export
violation they already had detected, but also “information related to other ongoing
attempts to export illegally various firearms parts.” Kolsuz, 185 F. Supp. 3d at 860. The
government emphasizes that finding – not contested by Kolsuz – in its argument before
us, and properly so. The justification behind the border search exception is broad enough
to accommodate not only the direct interception of contraband as it crosses the border,
but also the prevention and disruption of ongoing efforts to export contraband illegally,
17
through searches initiated at the border. See, e.g., Ramos, 190 F. Supp. 3d at 999
(approving post-arrest “investigatory” border search of cell phone for information about
larger smuggling organization and “more contraband entering into the country at that
time”); United States v. Mendez, 240 F. Supp. 3d 1005, 1007–10 (D. Ariz. 2017)
(approving post-arrest border search of cell phone for evidence of additional contraband
entering country); cf. United States v. Kim, 103 F. Supp. 3d 32, 44, 46, 59 (D.D.C. 2015)
(holding unreasonable forensic search of laptop at border where search was expected to
reveal evidence of past but not ongoing criminal activity).
In the circumstances presented here, we agree with the government’s bottom line:
Because the forensic search of Kolsuz’s phone was conducted at least in part to uncover
information about an ongoing transnational crime – in particular, information about
additional illegal firearms exports already underway, by freight or in the custody of a
coconspirator, see Kolsuz, 185 F. Supp. 3d at 860 – it “fits within the core of the
rationale” underlying the border search exception. Brief of United States at 19–20.
B.
Most of Kolsuz’s appeal is devoted to his argument against application of the
border exception. But Kolsuz has a fallback position, as well: Even under the border
exception, Kolsuz contends, the forensic search of his phone constituted a nonroutine
border search “unsupported by the type of reasonable suspicion required to justify” such
searches. Defendant’s Brief at 31. Again, we disagree.
18
1.
Like the district court, we begin by considering the first premise of Kolsuz’s
argument: that the forensic search of his cell-phone data qualifies as a nonroutine border
search, requiring some level of particularized suspicion. We agree with the district court
that particularly in light of the Supreme Court’s decision in Riley, a forensic border
search of a phone must be treated as nonroutine, permissible only on a showing of
individualized suspicion. See Kolsuz, 185 F. Supp. 3d at 852–58.
As described above, the Supreme Court has held that even at the border,
individualized suspicion is necessary to justify certain “highly intrusive searches,” in
light of the significance of the individual “dignity and privacy interests” infringed.
Flores-Montano, 541 U.S. at 152. Beyond that general guidance, the Court has not
delineated precisely what makes a search nonroutine. Compare id. at 155 (removal and
disassembly of car’s gas tank does not qualify as nonroutine border search) with Montoya
de Hernandez, 473 U.S. at 541–42 (16-hour detention for monitored bowel movement
pending rectal examination is nonroutine). But as the district court ably explains, in
deciding whether a search rises to the level of nonroutine, courts have focused primarily
on how deeply it intrudes into a person’s privacy. Kolsuz, 185 F. Supp. 3d at 853. Under
that approach, border searches of luggage, outer clothing, and personal effects
consistently are treated as routine, while searches that are most invasive of privacy – strip
searches, alimentary-canal searches, x-rays, and the like – are deemed nonroutine and
permitted only with reasonable suspicion. See id. at 853 & n.14 (citing cases).
19
By that metric, even before the Supreme Court issued its 2014 decision in Riley,
there was a convincing case for categorizing forensic searches of digital devices as
nonroutine. See Cotterman, 709 F.3d at 963–68 (holding that forensic examination of
computer is nonroutine border search requiring reasonable suspicion); Saboonchi, 990 F.
Supp. 2d at 549–60 (same as to smartphones and flash drives). First is the matter of
scale: The sheer quantity of data stored on smartphones and other digital devices dwarfs
the amount of personal information that can be carried over a border – and thus subjected
to a routine border search – in luggage or a car. “The average 400-gigabyte laptop hard
drive can store over 200 million pages. . . . Even a car full of packed suitcases with
sensitive documents cannot hold a candle to the sheer, and ever-increasing, capacity of
digital storage.” Cotterman, 709 F.3d at 964. Subjected to comprehensive forensic
analysis, a digital device can reveal an unparalleled breadth of private information.
The uniquely sensitive nature of that information matters, as well. Smartphones
and laptops “contain the most intimate details of our lives: financial records, confidential
business documents, medical records and private emails,” id., and also may provide
access to data stored remotely, id. at 965. 4 The report generated by the month-long
logical file system extraction of data from Kolsuz’s phone is a case in point, revealing
896 pages’ worth of sensitive data including personal contacts, photographs, web
4
The forensic search of Kolsuz’s phone, which remained in airplane mode
throughout, did not extend to information stored remotely (“in the cloud”), nor to residual
data of files that had been deleted by Kolsuz. Kolsuz, 185 F. Supp. 3d at 849 & n.8. Like
the district court, however, we decline “to distinguish an extensive forensic search of a
cell phone from a very extensive forensic search of a cell phone.” Id. at 857.
20
browsing history, and a “history of [Kolsuz’s] physical location down to precise GPS
coordinates,” J.A. 94 – the kind of information that, analyzed cumulatively, “generates a
precise, comprehensive record of a person’s public movements that reflects a wealth of
detail about her familial, political, professional, religious and sexual associations.” See
United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring). And
finally, while an international traveler can mitigate the intrusion occasioned by a routine
luggage search by leaving behind her diaries, photographs, and other especially personal
effects, the same is not true, at least practically speaking, when it comes to smartphones
and digital devices. Portable electronic devices are ubiquitous – for many, the most
reliable means of contact when abroad – and it is neither “realistic nor reasonable to
expect the average traveler to leave his digital devices at home when traveling.”
Saboonchi, 990 F. Supp. 2d at 556.
And then came Riley, in which the Supreme Court confirmed every particular of
that assessment. Riley holds that the search incident to arrest exception, which allows for
automatic searches of personal effects in the possession of an arrestee, does not apply to
manual searches of cell phones. 134 S. Ct. at 2493–94. The key to Riley’s reasoning is
its express refusal to treat such phones as just another form of container, like the wallets,
bags, address books, and diaries covered by the search incident exception. See id. at
2488–90. Instead, Riley insists, cell phones are fundamentally different “in both a
quantitative and a qualitative sense” from other objects traditionally subject to
government searches. Id. at 2489. And that is so, Riley explains, for precisely the
reasons already identified by cases treating border searches of digital devices as
21
nonroutine: the “immense storage capacity” of cell phones, putting a vastly larger array
of information at risk of exposure, id.; the special sensitivity of the kinds of information
that may be stored on a phone, such as browsing history and historical location data, id. at
2490; and, finally, the “element of pervasiveness that characterizes cell phones,” id.,
making them an “insistent part of daily life,” id. at 2484.
After Riley, we think it is clear that a forensic search of a digital phone must be
treated as a nonroutine border search, requiring some form of individualized suspicion.
See Kolsuz, 185 F. Supp. 3d at 858; see also United States v. Saboonchi, 48 F. Supp. 3d
815, 819 (D. Md. 2014) (“Saboonchi II”) (discussing ways in which Riley confirms prior
holding that border searches of digital devices are nonroutine). Indeed, the impact of
Riley is plain enough that the government’s brief does not seriously contest this point,
focusing instead on the argument (which we next address) that nonroutine or not, the
search of Kolsuz’s phone was justified under the border exception. 5 We also note that
shortly after argument in this case, the Department of Homeland Security adopted a
policy that treats forensic searches of digital devices as nonroutine border searches,
insofar as such searches now may be conducted only with reasonable suspicion of
5
The government does note that in Ickes, 393 F.3d at 505–07, our court treated a
search of a computer as a routine border search, requiring no individualized suspicion for
the search. But as the district court explained, Ickes approved a manual, on-site
inspection of computer contents that would be accessible to any user, and did not address
the use of the sophisticated forensic search methods at issue here. Kolsuz, 185 F. Supp.
3d at 853–54; see also Saboonchi, 990 F. Supp. 2d at 546 (distinguishing Ickes on same
ground). Because Kolsuz does not challenge the initial manual search of his phone at
Dulles, we have no occasion here to consider whether Riley calls into question the
permissibility of suspicionless manual searches of digital devices at the border.
22
activity that violates the customs laws or in cases raising national security concerns. U.S.
Customs and Border Prot., CBP Directive No. 3340-049A, Border Search of Electronic
Devices 5 (2018). That the agency has chosen to adopt these requirements, of course,
does not establish that they are constitutionally mandated. Cf. Ickes, 393 F.3d at 507
(distinguishing between agency practice and constitutional requirements). But it does
suggest, as courts have anticipated, that the distinction between manual and forensic
searches is a perfectly manageable one, see Cotterman, 709 F.3d at 967 (categorizing
forensic searches as nonroutine requires only “that officers make a commonsense
differentiation between a manual review of files on an electronic device and application
of computer software to analyze a hard drive”), and that treating forensic phone searches
as nonroutine need not interfere unduly with the agency’s protective mission at the
border, see Saboonchi, 990 F. Supp. 2d at 570. 6
2.
That the forensic analysis of Kolsuz’s phone data qualifies as a nonroutine border
search does not resolve this case. Nonroutine searches are permitted under the border
6
The new policy does not use the “routine” and “nonroutine” terminology of
Supreme Court case law, distinguishing instead between “basic” and “advanced”
searches. But the import is the same. “Basic” searches (like those we term “manual”) are
examinations of an electronic device that do not entail the use of external equipment or
software and may be conducted without suspicion. “Advanced” searches (like “forensic”
searches) involve the connection of external equipment to a device – such as the
Cellebrite Physical Analyzer used on Kolsuz’s phone – in order to review, copy, or
analyze its contents, and are subject to the restrictions noted above. See U.S. Customs
and Border Prot., CBP Directive No. 3340-049A, Border Search of Electronic Devices 4–
5 (2018); Molina-Isidoro, 884 F.3d at 294 & n.2 (Costa, J., concurring).
23
exception, so long as they are accompanied by the appropriate level of individualized
suspicion. See Montoya de Hernandez, 473 U.S. at 540–41 & n.4.
The district court concluded that under the border exception, the “highest level of
Fourth Amendment protection available” is the reasonable suspicion standard, which was
met in this case. 7 Kolsuz, 185 F. Supp. 3d at 858–59. As the district court explained,
courts consistently have required only reasonable suspicion even when reviewing the
most intrusive of nonroutine border searches and seizures – like, for instance, the one at
issue in Montoya de Hernandez, in which the Supreme Court held that with reasonable
suspicion, the government could detain a traveler thought to be smuggling contraband in
her alimentary canal for 16 hours while it monitored her bowel movements and sought a
court order for a rectal examination. Id. at 852–53, 858–59.
Of course, certain searches conducted under exceptions to the warrant requirement
may require more than reasonable suspicion. See, e.g., California v. Carney, 471 U.S.
386, 393–95 (1985) (holding that automobile exception to the Fourth Amendment
permits a warrantless search of a motor home if based on probable cause). Perhaps the
7
Kolsuz also argues that even if the search of his phone could be justified by
reasonable suspicion, what would be required is reasonable suspicion that contraband, as
opposed to evidence, would be found on the device. Otherwise, according to Kolsuz, the
search would be “untethered” from the constitutional justification for border searches:
the interception of contraband as it crosses the border. If this argument sounds familiar,
that is because it is a reformulation of Kolsuz’s threshold argument against any
application of the border exception to this case, addressed above. And for essentially the
reasons already given, we cannot agree. The district court found – and Kolsuz does not
dispute – that the agents here had reason to believe that their search of Kolsuz’s phone
would reveal not only evidence of past export-control violations, but also evidence of
ongoing efforts to smuggle firearms over the border. Kolsuz, 185 F. Supp. 3d at 860.
That is enough to “tether” the search to the rationale behind the border exception.
24
same is true of some nonroutine border searches, as Kolsuz argues, but we need not
resolve that question here. As the government reminds us, even if a search is judged to
be constitutionally flawed in some way, its fruits need not be suppressed if the agents
acted “in reasonable reliance on binding precedent.” Davis v. United States, 564 U.S.
229, 241 (2011); see United States v. Baker, 719 F.3d 313, 320–21 (4th Cir. 2013)
(describing Davis). In such circumstances, suppression can do little to deter police
misconduct, and the “social costs” of suppression – the exclusion from trial of reliable
evidence bearing on guilt or innocence – outweigh any deterrence benefits. Davis, 564
U.S. at 237–38.
At the time the CBP officers conducted their forensic search of Kolsuz’s phone,
there was at least some case law indicating that reasonable suspicion might be required.
See Kolsuz, 185 F. Supp. 3d at 855–58 (discussing cases). But there was no case
suggesting that even more would be necessary – for a forensic search of a phone at the
border or, indeed, for any border search, no matter how nonroutine or invasive. And that
remains the case today: Even as Riley has become familiar law, there are no cases
requiring more than reasonable suspicion for forensic cell phone searches at the border.
But see Vergara, 884 F.3d at 1313–19 (Pryor, J., dissenting) (after Riley, forensic search
of phone is not subject to border search exception and therefore requires warrant based on
probable cause).
Under these circumstances, we think it was reasonable for the CBP officers who
conducted the forensic analysis of Kolsuz’s phone to rely on the established and uniform
body of precedent allowing warrantless border searches of digital devices that are based
25
on at least reasonable suspicion. See Molina-Isidoro, 884 F.3d at 293 (applying good-
faith exception to warrantless manual search of phone at border). Under Davis’s “good-
faith” exception to the Fourth Amendment exclusionary rule, that reasonable reliance by
itself is enough to bar suppression of the evidence generated by the search. See Baker,
719 F.3d at 321. Accordingly, we need not – and will not – reach the issue of whether
more than reasonable suspicion is required for a search of this nature in affirming the
judgment of the district court. See Molina-Isidoro, 884 F.3d at 294 (Costa, J.,
concurring) (reliance on good-faith exception particularly appropriate in area of rapid
legal and technological change).
III.
For the reasons given above, the judgment of the district court is
AFFIRMED.
26
WILKINSON, Circuit Judge, concurring in the judgment:
I thank the majority for its thoughtful opinion. While I agree with much of what is
said, my point of departure is quite basic. The majority appears to leave the legislative
and executive branches shivering in the cold. Those branches have a critical role to play
in defining the standards for a border search, and they are much better equipped than we
are to appreciate both the privacy interests at stake and the magnitude of the practical
risks involved.
The standard of reasonableness in the particular context of a border search should
be principally a legislative question, not a judicial one. Congress should decide that
standard. Courts should apply it. This is a separation of powers approach that makes use
of the respective capabilities of all three branches of government, not just one.
The infirmity of a constitutional rule in the unique context of a border search is
clear. Such a rule claims for courts the sole prerogative to set standards in an area where
legislative inquiry would be invaluable and where the executive maintains a strong
sovereign interest. Diminishing the other two branches flirts with real-life dangers. The
whole enterprise calls for the greatest caution and circumspection, not premature
declarations of constitutional rules.
If individualized suspicion is to be required in order to conduct what the majority
asserts is a “nonroutine border search,” Maj. Op. at 4, then Congress must say so. And in
all events, there was plainly reasonable suspicion to conduct the search here. The
majority should have stopped right there. Assuming without deciding that reasonable
suspicion was even required, it is present here in triplicate.
27
Instead my colleagues wander from what Article III indisputably envisions as the
core role of courts: simply to decide a case or controversy. The majority turns
prescriptive, but the pronouncement here is too abstract and floats too far above the
realities at the border.
Lethal capabilities are advancing at a rapid pace. Detection of destructive devices
is becoming more difficult. Nation states, terrorist bands, and individual arms merchants
see profit and prestige and power in joining the arms race. Might we wish to hear in a
manner more probing than appellate briefs and oral argument exactly what are the
dimensions of the threats we face? What makes us think the elective branches would
downgrade the significant privacy interests the majority rightly identifies? Might the
other two branches, if given a fair chance, have something to say? And do not Articles I
and II, which set forth the legislative and executive roles in matters of grave international
import, give them the right to say it? Who are we to propound the idea that democratic
bodies, where Fourth Amendment reasonableness is concerned, have nothing to
contribute?
Alarmist? Hyperbolic? Perhaps. But if we so limit the role of our coordinate
branches with a constitutional ruling, how shall we ever know?
I.
The majority fairly recounts the facts here, and they are straightforward and
incriminating. Before his arrest at Dulles airport, Customs and Border Protection (CBP)
agents had twice stopped Kolsuz, a Turkish national, at JFK airport for carrying
contraband firearms parts proscribed by statute. See 22 U.S.C. § 2278. On both
28
occasions, Kolsuz failed to produce the license required to export those parts. Both times,
CBP agents informed Kolsuz that he needed a license to export those items.
Kolsuz reentered the United States on January 25, 2016, on a tourist visa. He again
purchased numerous gun parts. Law enforcement officials who were familiar with
Kolsuz’s previous attempts to export contraband firearms asked CBP to search Kolsuz’s
bags when he tried to return to Turkey. When Kolsuz arrived at Dulles, CBP searched his
bags. The inspection revealed eighteen handgun barrels, twenty-two 9 mm handgun
magazines, four .45 caliber handgun magazines, and one .22 caliber Glock conversion
kit. All of these firearms parts are restricted items on the U.S. Munitions List. At no time
did Kolsuz have permission to export them. Based on Kolsuz’s previous attempts to bring
firearm parts out of the country, CBP had ample reason to suspect that Kolsuz might
again try to export firearms.
Following the search of Kolsuz’s bags, CBP officers interrogated Kolsuz and
performed a cursory inspection of his iPhone. At the end of the interrogation, Kolsuz was
arrested and his iPhone seized. At that point, his iPhone was transported to Sterling,
Virginia, where federal law enforcement conducted an “advanced logical file system
extraction” of the iPhone. This extraction, as the majority notes, generated an 896-page
report on the information contained in the phone.
II.
This was plainly a border search. See Maj. Op. at 18. Assuming reasonable
suspicion of Kolsuz’s criminal activity is somehow required, it clearly existed here. We
need go no further. Rather than deciding the case on solid and suitably limited grounds,
29
the majority goes on to prescribe a constitutional standard whose rationale would label a
great many cell phone searches undertaken at the border as “nonroutine” and forbidden
absent prior individualized suspicion.
While the majority purports not to reach the question of the justification required
for the manual search of Kolsuz’s cell phone at Dulles airport, see Maj. Op. at 22 n.5, the
rhetorical thrust of its opinion as concerns cell phones and smartphones may be read by
many courts to require individualized suspicion for border searches of all cell phones
period. Or if the majority intends a less sweeping standard, the slipperiness of the
distinction between intrusive and less intrusive cell phone searches and between those
that are routine and those that are nonroutine will lead, I fear, to difficulties in application
down the road. While the majority’s constitutional venture may be correct, it also may
well not be. Again, we are not the ones to set the standard.
We are, each of us, in over our heads. We have no idea of the dangers we are
courting. JFK and Dulles are quintessential border posts. See Almeida-Sanchez v. United
States, 413 U.S. 266, 273 (1973). Thousands of international travelers go through them
every day. Yet the majority hardly grapples with how law enforcement is expected to
ascertain individualized suspicion when dealing with such numbers. The privacy interest,
while weighty, is the only side of a precarious balance that seems to concern the majority,
and this in the application of the Fourth Amendment, which articulates reasonableness
and hence balance as a standard. See Katz v. United States, 389 U.S. 347, 360 (1967).
One would hope that rather than charging unnecessarily ahead, the majority would
recognize the need for congressional input, which the enunciation of constitutional
30
standards makes more difficult. Constitutional standards are preemptive. They sweep all
other pieces off the board. Judicially promulgated constitutional standards say essentially,
“That’s that. The Constitution is the highest law, and the judiciary shall be its sole
guardian.”
Empirical questions lie at the heart of the tension between privacy and security
interests at the border. How many people travel through international airports every day?
What screening techniques and investigative resources does government have available?
What materials are being smuggled in and out, and by whom? What practical obstacles
exist to individualized findings? What, in other words, is the magnitude of danger courted
by progressive step-ups of search requirements?
The limited glimpse from a single case does no more than beg the question: What
is the reality of it all? This is why any Fourth Amendment standard is best designed here
through the more adaptable legislative process and the wider lens of legislative hearings.
See Riley v. California, 134 S. Ct. 2473, 2497-98 (2014) (Alito, J., concurring in the
judgment) (“Legislatures, elected by the people, are in a better position than we are to
assess and respond to the changes that have already occurred and those that almost
certainly will take place in the future.”). For “[a]s new technologies continue to appear in
the marketplace and outpace existing surveillance law, the primary job of evaluating their
impact on privacy rights and of updating the law must remain with the branch of
government designed to make such policy choices, the legislature.” In re Askin, 47 F.3d
100, 106 (4th Cir. 1995).
31
The majority contends that the “Department of Homeland Security adopted a
policy that treats forensic searches of digital devices as nonroutine border searches.” Maj.
Op. at 22. I think the document is more complex than this, but in all events, it proves my
point—that in this narrow area agency policy born of actual and ongoing experience is
more adaptable than a freeze-frame constitutional ruling.
Courts too often assume Congress is desensitized to the need for privacy
protections. This does lawmakers a disservice. Congress has long sought to strike a
balance between privacy and security in the context of digital searches. See, e.g., USA
Freedom Act of 2015, Pub. L. No. 114-23, 129 Stat. 268 (limiting government
surveillance of telephone records); 18 U.S.C. §§ 2510-22 (2012) (limiting the
government’s ability to monitor electronic communications); Orin S. Kerr, The Effect of
Legislation on Fourth Amendment Protection, 115 Mich. L. Rev. 1117, 1120 (2017)
(observing “the recent enactment of more and stronger statutory privacy laws” by federal
and state legislatures in the past five years). And, though of course not directly relevant in
the context of a federal border search, states have historically also protected Fourth
Amendment privacy rights. See Kerr, 115 Mich. L. Rev. at 1120 (documenting state
statutes limiting the use of digital searches).
It is sometimes said in non-border search cases that the judiciary does no more
than provide “a floor” which Congress can exceed at its discretion. See, e.g., Kelsey v.
Cty. of Schoharie, 567 F.3d 54, 64 (2d Cir. 2009); Graves v. Mahoning Cty., 821 F.3d
772, 778 (6th Cir. 2016). But the so-called floor in this case is not some innocuous
minimum, but a hugely consequential policy judgment that certain categories of border
32
searches will require individualized suspicion. The fact that Congress has not thus far
seen fit to adopt a court’s preferred standard gives us no license to act preemptively with
an unnecessary constitutional disquisition. The dangers of this notion are underscored by
the majority’s reservation here of the question whether probable cause or a warrant may
be required for some unspecified categories of border searches in the future. See Maj. Op.
at 24-25. This does not sound like any sort of “floor” at all.
The dangers of judicial standard-setting in an area as sensitive as border searches
is thus apparent. Here the legislative process would be informed by numerous
representatives of the executive branch, who can lend their practical insights and
experience to the inquiry. The executive’s role has always been thought especially
important in an area such as border searches, where it has long been held to have a
uniquely sovereign interest. The border search exception to the Fourth Amendment’s
warrant requirement is based on the “longstanding right of the sovereign to protect itself
by stopping and examining persons and property crossing into this country.” United
States v. Ramsey, 431 U.S. 606, 616 (1977). As the Supreme Court has explained, “[t]he
Government’s interest in preventing the entry of unwanted persons and effects is at its
zenith at the international border.” See United States v. Flores-Montano, 541 U.S. 149,
152 (2004). That interest is so powerful that border searches “are reasonable simply by
virtue of the fact that they occur at the border.” Ramsey, 431 U.S. at 616.
The role of courts is thus not to blanket the field of border searches by preempting
constitutionally the contributions that the other two branches of our government are
constitutionally empowered and uniquely positioned to make. Marbury v. Madison did of
33
course say that it is “emphatically the province and duty of the judicial department to say
what the law is.” 5 U.S. (1 Cranch) 137, 177 (1803). But that is a very different
proposition from holding that constitutional interpretation must be solely a judicial
function. Indeed “the general architecture of [the Constitution] would seem to imply a
basic coequality among the three departments. . . . [I]t nowhere explicitly raises the Court
above coordinate legislative and executive departments.” Akhil Reed Amar, Architecture,
77 Ind. L.J. 671, 692-93 (2002). This is not a new idea. James Madison wrote that “none
of [the three branches of government] ought to possess, directly or indirectly, an
overruling influence over the others in the administration of their respective powers.” The
Federalist No. 48 (James Madison). But it is precisely that “overruling influence” the
majority asserts in its unnecessary constitutional exercise today.
III.
The general search that all of us must undergo at airports attests to the difficulties
of ensuring airborne security through individualized suspicion. Our new world has
brought inconvenience and intrusions on an indiscriminate basis, which none of us
welcome, but which most of us undergo in the interest of assuring a larger common good.
Our old world of relative security and relative privacy, if indeed it ever existed, is now
gone with the wind. It is painful to dream of retrieving what is ours no longer.
The Supreme Court has often noted how technology endangers privacy. As it
observed in Riley, “[m]odern cell phones, as a category, implicate privacy concerns far
beyond those implicated by the search of a cigarette pack, a wallet, or a purse.” 134 S. Ct.
at 2488-89. But Riley involved the warrantless search of a cell phone following an
34
ordinary roadside arrest after a traffic violation. The defendant was not at the border. The
setting here is far different from Riley.
Nor does the privacy interest recognized in Riley begin to answer the question of
who should strike the balance between privacy and security at the border of the country,
the point most freighted with security threats and the point at which a nation asserts and
affirms its very right to nationhood.
Porous borders are uniquely tempting to those intent upon inflicting the vivid
horrors of mass casualties. Then too, there is the danger of highly classified technical
information being smuggled out of this country only to go into the hands of foreign
nations who do not wish us well and who seek to build their armaments to an ever more
perilous state.
It is no secret that rapid technological advances have enhanced the ability of
criminal syndicates and terrorist networks to execute transnational schemes through the
coordination now made possible by instantaneous communications. To give criminal
enterprises the advantage of technological advancements and at the same time impair
access of law enforcement to those same developments risks recalibrating the Fourth
Amendment balance in a manner that does not comport with reasonableness. Cell phones
may prove essential to revealing the scope of a conspiracy; who is involved; what
weapons and devices the conspirators possess; what the purpose and plans and timing of
the plotted criminal acts may be; and where indeed those who would carry out these acts
may be located.
35
But to stop there is to halve the equation. The majority is right to emphasize that
searches of cell phones and the like can reveal a trove of data unconnected to any
criminal offense. The intrusion upon personal privacy is undoubtedly severe. One may of
course say that international travelers are on notice that border inspections may be
uniquely intrusive, and that travelers can prepare for that prospect by not taking a full
load of personal data abroad, where additional dangers of theft and inadvertent loss may
also await. But the fact that we can pack our digital suitcase with the same care that we
pack personal belongings in traditional luggage still does not nullify the reality that these
sorts of searches look into our lives in a way that is deeply uncomfortable, especially
when government itself becomes the agent of intrusion. But the ultimate question here is
not whether there is a balance to be struck between what are highly significant privacy
and security interests. It is what branch of government is best suited to make that
determination. In this case, where there is a longstanding historical practice in border
searches of deferring to the legislative and executive branches, the majority should have
shown a modest measure of restraint simply by deciding the case. Our role in this narrow
area is more the application of standards than the creation of them. In reaching to
formulate a constitutional rule, the majority has turned the whole thing on its head.
We are ruling in a vacuum. We are building a doctrinal house without foundation.
The majority opinion provides little context or background or real-life picture of Dulles
Airport. It leaves little role for the legislative branch. At what point the domestic
conveniences of cell phone use should ripen into transnational entitlements is primarily
for the political branches to determine. The elected branches are also best able to gauge at
36
what point the creeping constitutionalization of border searches reflects the cultural
habits and practices of an elite group of transnational Americans at the risk of
endangerment that knows no class bounds.
It is ill advised to ignore the role of the political branches in addressing a
phenomenon that may fall short of the formal warfare contemplated in Articles I and II,
but still retains major features of international conflict. To reach beyond the Article III
function is to court grave dangers which we may perceive as remote and hypothetical
until one day, very suddenly, they are not. Not that any one case or any one appellate
court will likely bring down havoc on our heads. In our shielded circumstances, we may
never know or be apprised of many effects of our decisions. Still it is uncomfortable to
guess. I have nothing but respect for my friends in the majority. But taken cumulatively,
rulings slowly constitutionalizing border searches are taking chances with the safety and
lives of our fellow Americans. And this, as a judge, I cannot do.
37