UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 16-4687

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. HAMZA KOLSUZ,

Defendant - Appellant. ------------------------------ ELECTRONIC FRONTIER FOUNDATION; ASIAN AMERICANS ADVANCING JUSTICE-ASIAN LAW CAUCUS; BRENNAN CENTER FOR JUSTICE; COUNCIL ON AMERICAN-ISLAMIC RELATIONS; CAIR CALIFORNIA; CAIR FLORIDA; CAIR MISSOURI; CAIR NEW YORK; CAIR OHIO; CAIR DALLAS/FORT WORTH; NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; CAUSE OF ACTION INSTITUTE; COMMITTEE FOR JUSTICE; FLOOR64, INC.; AMERICAN CIVIL LIBERTIES UNION; ACLU OF VIRGINIA; ACLU OF MARYLAND; ACLU OF NORTH CAROLINA; ACLU OF SOUTH CAROLINA; ACLU OF WEST VIRGINIA,

Amici Supporting Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T.S. Ellis, III, Senior District Judge. (1:16-cr-00053-TSE-1)

Argued: October 26, 2017 Decided: May 9, 2018

Before WILKINSON, MOTZ, and HARRIS, Circuit Judges. Affirmed by published opinion. Judge Harris wrote the opinion, in which Judge Motz joined. Judge Wilkinson wrote a separate opinion concurring in the judgment.

ARGUED: Todd M. Richman, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Jeffrey Michael Smith, National Security Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Esha Bhandari, AMERICAN CIVIL LIBERTIES UNION, New York, New York, for Amici American Civil Liberties Union, ACLU of Virginia, ACLU of Maryland, ACLU of North Carolina, ACLU of South Carolina, and ACLU of West Virginia. ON BRIEF: Geremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Dana Boente, United States Attorney, Mary B. McCord, Acting Assistant Attorney General for National Security, Heather Alpino, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Hope R. Amezquita, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, Richmond, Virginia, Nathan Freed Wessler, Vera Eidelman, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for Amici American Civil Liberties Union, ACLU of Virginia, ACLU of Maryland, ACLU of North Carolina, ACLU of South Carolina, and ACLU of West Virginia. Curt Levey, THE COMMITTEE FOR JUSTICE, Washington, D.C., Erica L. Marshall, CAUSE OF ACTION INSTITUTE, Washington, D.C., for Amici Cause of Action Institute, The Committee for Justice, and Floor64, Inc. Sophia Cope, Adam Schwartz, ELECTRONIC FRONTIER FOUNDATION, San Francisco, California, for Amici Electronic Frontier Foundation, Asian Americans Advancing Justice-Asian Law Caucus, Council on American-Islamic Relations (CAIR), CAIR California, CAIR Florida, CAIR Missouri, CAIR New York, CAIR Ohio, CAIR Dallas/Fort Worth, and The National Association of Criminal Defense Lawyers. Michael Price, BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW, New York, New York, for Amicus Brennan Center for Justice.

2 PAMELA HARRIS, Circuit Judge:

Hamza Kolsuz was detained at Washington Dulles International Airport while attempting to board a flight to Turkey because federal customs agents found firearms parts in his luggage. After arresting Kolsuz, the agents took possession of his smartphone and subjected it to a month-long, off-site forensic analysis, yielding a nearly 900-page report cataloguing the phone’s data. The district court denied Kolsuz’s motion to suppress, applying the Fourth Amendment’s border search exception and holding that the forensic examination was a nonroutine border search justified by reasonable suspicion. Kolsuz ultimately was convicted of attempting to smuggle firearms out of the country and an associated conspiracy charge.

Kolsuz now challe