An intensive forensic search of an outbound noncitizen’s cell phone required at least reasonable suspicion and maybe a warrant under Riley. Case law, however, uniformly says not at the time this happened, so the search is valid under the good faith exception. United States v. Kolsuz, 2018 U.S. App. LEXIS 12147 (4th Cir. May 9, 2018)
. . . 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. 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, 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).
. . .
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 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).
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)