A federal appeals court has ruled there are times when authorities must establish “probable cause” in order to search a cell phone at the border, in cases involving someone either entering the U.S. or leaving.

But the ruling from the 4th U.S. Circuit Court of Appeals says not in the case of Hamza Kolsuz.

Kolsuz went to court claiming authorities shouldn’t have been allowed to do that extensive search, a “forensic” search, because after he was arrested for trying to take weapons parts from the U.S. into Turkey without the proper permission, he was in custody and it no longer was a “border” case.

No dice, said the court, in an opinion explaining the nuances of the case and the justification for the search:

“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 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 …”

The judges found, “Kolsuz’s foundational premise is correct: As a general rule, the scope of a warrant exception should be defined by its justifications. … 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 government interests, the government must obtain a warrant based on probable cause. 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.”

“But, the judges continued, “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 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.”

A long list of organizations filed arguments on behalf of Kolsuz and the privacy of his phone, including the Brennan Center for Justice, Council on American-Islamic Relations, CAIR California, Cause of Action Institute, the ACLU of Virginia and others.

The outline of the case was that Kolsuz was detained at Washington Dulles while trying to board a flight to Turkey after customs agents found firearms parts in his luggage. They spotted the parts because he was on a watch list, for having tried to take gun parts out of the U.S. illegally several times earlier.

He was convicted of attempting to smuggle firearms and conspiracy.

He had demanded that information from his phone be suppressed, the trial judge rejected the demand and the appeals court as affirmed that decision.

Searches typically require a probable cause determination by authorities, but there is a border exception, because of the immediacy of contraband potentially getting over a border and beyond the reach of U.S. authorities.


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