We have a precious right, protected by the Fourth Amendment, to be secure in our “persons, houses, papers, and effects, against unreasonable searches and seizures.” If the police want to search our stuff, they have to get a warrant based on probable cause first, in most instances.
But the right is not absolute. There are exceptions – consent searches, motor vehicle searches, and exigent circumstances, to name a few. Border searches are also an exception, which brings us to the case of a Turkish man, Hamza Kolsuz, who was stopped at Dulles International Airport before boarding a plane to Turkey. His luggage was found to contain handgun barrels and other weapons parts. Kolsuz was already known to Homeland security from a previous arms smuggling incident.
He was convicted on three counts, including conspiracy to violate the Arms Export Control Act, but has appealed on Fourth Amendment grounds that his cellphone was unlawfully searched. Border agents searched his text messages and call logs at the airport. After Kolsuz was arrested, a month-long forensic search of the phone went into his browser history, photos, emails, and GPS coordinates of where he had been – all without a warrant. The information ran to almost 900 pages.
Ironically, the Fourth Amendment came about because of abuses by border agents. English customs agents in colonial America were given general search warrants called ‘writs of assistance’ empowering them to search for smuggled goods anytime, anyplace, without probable cause. These writs were permanent – they did not expire – and were even transferrable to anyone the agent chose. Abuses of these writs angered Americans and inspired the Fourth Amendment.
Back to Kolsuz: his appeal may turn on whether this is deemed to be a continuing border search – fitting within an established exception to the Fourth Amendment – or a search incident to arrest – which would have required a court to issue a warrant based on probable cause. Not an easy call. The facts seem to cut against the government – remember, the forensic search took place after Kolsuz was arrested. Also, there is a 2014 Supreme Court decision (Riley v. California) generally requiring a warrant to search a cellphone taken from someone incident to arrest not at the border. On the other hand, no court has ever required a warrant for a border search of a cellphone and the government has a strong interest in preventing the movement of certain materials across the border.
Border agents conducted almost 24,000 warrantless searches of electronic devices last year, five times as many as the year before. Privacy advocates including the ACLU and the Muslim Brotherhood front group CAIR argue that the treasure trove of information devices contain make cellphone searches fundamentally different from vehicle or luggage searches. I’m not sure I buy that. You can put a whole lot more than 900 pages of conspiracy information in a vehicle or a suitcase. I don’t know what’s magic about cellphones in that regard. But certainly the situation is ripe for more guidance from the courts as to what the Fourth Amendment means in the digital age. The Kolsuz case is on appeal to the 4th Circuit and the government’s brief is expected April 24th.