CA4: Forensic border search of cell phone “non-routine” but GFE applies

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).

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