Federal appeals court says there must be some reason to suspect a particular traveler has committed a crime

This article is more than 2 years old

This article is more than 2 years old

US border authorities cannot search the cellphones of travelers without having some reason to believe a particular traveler has committed a crime, a federal appeals court ruled on Wednesday.

The 4th US circuit court of appeals in Richmond ruled in the case of a Turkish national who was arrested at Dulles international airport after agents found firearm parts in his luggage.

A lower court judge refused to suppress evidence obtained from a warrantless search of Hamza Kolsuz’s phone.

The 4th circuit upheld that ruling and found that a forensic search of electronic devices requires “individualized suspicion” of wrongdoing. The court said agents had that suspicion because Kolsuz had made two previous attempts to smuggle weapons parts out of the US.

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The fourth amendment requires law enforcement officers to obtain warrants based on probable cause. But courts have made an exception for searches at airports and US ports of entry, finding that the government can conduct warrantless border searches to protect national security, prevent transnational crime and enforce immigration and customs laws.

The American Civil Liberties Union (ACLU) had urged the 4th circuit to find that the government should be required to obtain a warrant or at least a determination of probable cause that evidence of a crime is contained on electronic devices before agents can search them at airports.

The 4th circuit said it did not have to reach the question of whether probable cause or a warrant is required. Reasonable suspicion is a lower legal standard.

Claire Gastanaga, the executive director of the ACLU of Virginia, said the group was pleased that the appeals court “recognized correctly that border agents can’t conduct invasive searches on a traveler’s cellphone or other electronic devices just because the person is crossing the border”.

Last year, the ACLU filed a federal lawsuit claiming warrantless border searches are unconstitutional because of the vast amount of private personal and business information stored on electronic devices.

The lawsuit was filed on behalf of 10 American citizens and a lawful permanent resident who all had their electronic devices searched by border agents when they returned from trips abroad. None of them had ever been accused of any wrongdoing.