Fourth Amendment Gets A Small Boost At The Border From Fourth Circuit Appeals Court

from the better-than-maintaining-the-status-quo dept

The Fourth Circuit Appeals Court has handed down a decision [PDF] suggesting the Fourth Amendment might still provide some minimal protection at our nation’s borders. Most rights are considered to be waived — especially those affecting privacy — thanks to a prevailing national security interest that is seldom challenged by courts. Two years ago, a California federal court looked at the Supreme Court’s Riley decision (which instituted a warrant requirement for cellphone searches) and decided that simply didn’t apply within 100 miles of US borders.

This precedential decision doesn’t cut the government quite as much slack. While it recognizes border security is a national priority, it’s not as quick to give federal agencies a free pass on Fourth Amendment exceptions. The underlying facts make it a less-than-ideal challenge, but even so, the court finds enough to work with in the Riley decision to suggest not all border searches should be suspicionless.

Hamza Kolsuz, the appellant, had been caught twice exiting the country with firearms parts in his luggage. Those incidents occurred in 2012 and 2013. The parts were seized both times, with federal agents explaining licensing requirements but choosing not to arrest Kolsuz for violating federal law.

In 2016, the same thing happened again. Agents searched his luggage and found firearms parts. One agent then performed a cursory examination of the phone Kolsuz was carrying. This search the court has zero issues with. It’s easily covered by the border search exception.

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.

Not much Fourth to be had there and the underlying circumstances — the discovery of more firearms parts being moved out the country without proper export licenses — gave the agents more reasonable suspicion than they actually needed.

But it wasn’t the only search performed on Kolsuz’s phone. An offsite forensic search followed the airport search.

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 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.

This search was challenged, with Kolsuz arguing the phone was no longer being searched under the border exception, but rather as “cident to arrest,” subject to the Supreme Court’s Riley decision. The court agrees… to a point. It doesn’t find that taking the phone offsite for a deeper search affected the “border search” nexus. The search was still related to the transnational crime of weapons smuggling. It’s the intrusiveness of the search that troubles the court.

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.

It’s not quite a warrant requirement, but it does suggest federal agents should no longer perform highly-intrusive searches without justification. However, the court won’t go as far as to institute a warrant requirement.

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.

It’s not a hugely helpful decision but it does show this court isn’t willing to allow the border search exception to continue to expand, swallowing up the few shreds of Fourth Amendment that remain. Forensic searches must be justified with at least particularized reasonable suspicion, which is more than other courts have been willing to hold.

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Comments on “Fourth Amendment Gets A Small Boost At The Border From Fourth Circuit Appeals Court”

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15 Comments
Anonymous Coward says:

Re: Re:

It’s not a hugely helpful decision but it does show this court isn’t willing to allow the border search exception to continue to expand

Learn to read, blue. I know it makes the bowl of tepid oatmeal you use for a brain hurt, but that’s the point.

"Basis for suspicion" doesn’t mean jack when the FBI regularly lets known lone wolves plot and carry out attacks in exchange for their greater power demands.

Anonymous Coward says:

with this 100-mile stuff, I reset and wipe my phones before I go go Disneyland, which is within 100 miles of the Mexican border.

I factory reset my phones, and killdisk my laptops, and then re-install everything, so that if I am pulled over by police, for any reason, any search of my phone will find anything.

People have been burned for what they did not know was there. So when you to to Disneyland, killdisk your laptops and factory reset your phones, so that anything you don’t know about will not get you in trouble.

Before I get on the road, I run killdisk on my laptops, and factory reset all my phones and re-install everything, so that any cop who does pull me over for any reason, will not find anything on my phone just thumbing through it. And any CHP officer or Anaheim police officer who stops me will have no idea my phone was ever wiped.

Doing a killdisk on my laptops and wiping my phones does not break any law in the State Of California. So if you do this, before hitting the road to Disneyland, you will not be breaking any laws.

That One Guy (profile) says:

Ever so slightly better than terrible is still terrible

Forensic searches must be justified with at least particularized reasonable suspicion, which is more than other courts have been willing to hold.

‘Reasonable’ as defined by who? Because they clearly thought they had ‘reasonable suspicion’ to conduct a highly detailed search without even a hint of a warrant requirement, and the court agrees with them.

That this might be a higher bar than other courts have set is not something to praise this court for, but merely highlights how abysmally low the bar has been set by other courts.

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.

If a search that results in that much personal data doesn’t require a warrant, then the court might as well save everyone a lot of time and explicitly toss the requirement in the trash all at once. That was not a ‘cursory search’, it as a lengthy, detailed one, involving taking property off-site and going through it in detail, and if they’re going to give that a pass because the agents believed their actions were legal then the court didn’t really protect squat beyond some meaningless ‘reasonable suspicion’ wording.

Anonymous Coward says:

Re: I hadn't thought about.....

Portland ME, Boston, New York, Miami, etc are all Fourth Amendment free zones?

The Constitution in the 100-Mile Border Zone (ACLU)

Much of U.S. Population Affected

  • Roughly two-thirds of the United States’ population lives within the 100-mile zone—that is, within 100 miles of a U.S. land or coastal border. That’s about 200 million people.
  • Connecticut, Delaware, Florida, Hawaii, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Vermont lie entirely or almost entirely within this area.
  • Nine of the ten largest U.S. metropolitan areas, as determined by the 2010 Census, also fall within this zone: New York City, Los Angeles, Chicago, Houston, Philadelphia, Phoenix, San Antonio, San Diego and San Jose.
Anonymous Coward says:

Re: Re: I hadn't thought about.....

Nine of the ten largest U.S. metropolitan areas…

Hmmm… I hadn’t looked closely at the list of metropolitan areas before. But after posting that…

Well, I think Wikipedia’s List of metropolitan statistical areas, sorted by population from the 2010 census, shows the top ten as: NY, LA, Chicago, Dallas, Philadelphia, Houston, DC, Miami, Atlanta, Boston.

Have no clue how the ACLU came up with Phoenix, San Antonio, San Diego, and San Jose in the top ten.

Anonymous Coward says:

Re: Re: Re:2 I hadn't thought about.....

It looks like they were looking at the top 10 cities in the US…

Thanks.

I had gotten sidetracked ’cause Google showed me this “Metropolitan Areas” page at census.gov. And as a result, I tried looking at the primary statistical area list to see if that list would fit. But it obviously doesn’t fit any better than the MSA list.

So I just gave up. Didn’t cross my mind that ACLU might mean “incorporated place”.

Personanongrata says:

All Together Now or Spring Time for Dystopia in America?

The Fourth Circuit Appeals Court has handed down a decision [PDF] suggesting the Fourth Amendment might still provide some minimal protection at our nation’s borders. Most rights are considered to be waived — especially those affecting privacy — thanks to a prevailing national security interest that is seldom challenged by courts.

If we are waiting on the courts to execute some form of judicial dues ex machina in order to save us from the repressive yoke of US government tyranny the status quo will forever be our present/future.

Our Rights are inherent to our humanity. It matters not one iota what some defective/compromised state/federal court jester (ie judge) decrees as their words can never strip us of our Rights unless we allow them.

As history has shown in order to conquer a great nation the citizens of such must first be divided amongst themselves.

It is as simple as remembering that despite our differences (most of which are skin deep) we have much in common. We all breath the same air, drink the same water, work the same soil, live beneath the same stars (ie Sun) life giving energy, we all urinate/defecate, we are all mortal and we all want to see our children reach further than we ever could have imagined.

As corny as it may read:

Together we stand, divided we fall.

We need to knock on our local hometown congress criminals doors and be persistent, articulate and knowledgeable in our demands.

Demand the criminals (they claim they are not) in government honor their obligations at all times and failing at such be held accountable for their malfeasance, misfeasance and nonfeasance.

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