Duest

Sometimes, the most interesting customs cases are not litigated at the Court of International Trade. They are in the U.S. district courts and involve important constitutional and administrative law principles not related to duties and penalties. Two of those deserve note here. This post will cover the first.

And, yes, I know there are more routine CIT and CAFC cases to address. Someone [a former government official who, despite this crack, I still like] event recently chastised me for being behind here. I promise you that my self-appointed obligation to the trade community weighs heavily on me. I will try to catch up.

But first is U.S. v. Kolsuz. This case involves CBP's suspicion-less search of a cell phone.

As background, you need to know that the law has been clear for decades that Customs and Border Protection is allowed to search cargo and the personal effects of arriving passengers without a warrant and without even particularized suspicion that they might contain evidence of a crime. In other words, as a general matter, your fourth amendment protections from unreasonable search and seizure do not apply at the border. There are lots of reasons for that. Primarily it relates to the ability of a sovereign nation to control who and what cross its borders (both entering and leaving).

There are a lot of things that are not permitted into the country whether or not it is a crime to import the item. CBP protects the health and safety of the public by interdicting, for example, unsafe consumer products, equipment that does not meet environmental standards, the products of endangered species, and agricultural pests. Every now and then, it finds illegal Mongolian horse meat and genitals. CBP could not do its job if it needed a warrant or even suspicion to check whether an arriving passenger has some contraband. Similarly, there are also many things that may not leave the country without prior approval. By crossing the border, the passenger and cargo become subject to inspection for any reason or no reason whatsoever. But note that if the "inspection" were by a street cop away from the border, it would be a "search" and would require a warrant if not incident to an arrest. Remember that the next time you arrive at the border.

An issue that has been percolating for some time is whether this principle extends to the contents of your digital devices. Can CBP review the contents of a passenger's cell phone or computer? That is a potentially far more personally invasive search than is poking around in the wet bathing suits and uninvited beach sand that is in many carry-on bags arriving with passengers. People have been arguing that a search of data should require grounds beyond simply being at the border. Lately, this argument is getting some traction.

You should note that Kolsuz had previously been stopped for illegally exporting firearm parts, so he was on Customs' radar. In this case, he was at Dulles airport in Virginia attempting to board a flight to Turkey when CBP searched his luggage and found firearm parts. Under the International Traffic in Arms Regulations, the weapons can only be exported with a license, which Kolsuz did not have. After finding the weapons, CBP conducted an on-the-spot manual search of his mobile phone. After that, CBP conducted a more detailed forensic search of his phone. That search produced a report showing his contacts, emails, instant messages, photographs, browsing history, physical locations and other personal information. The full report was almost 900 pages long and took a month to compile using specialized software.

Kolsuz moved to suppress the introduction of evidence taken from the forensic search of his phone. He did not challenge the manual search.

The Fourth Circuit noted that the law has long upheld warrantless and suspicion-less routine border searches. However, the law also requires that enforcement agents have individualized suspicions before conducting "highly invasive," non-routine searches. In the past, this has generally applied to physically, personally invasive searches of, for example, body cavities where the "dignity and privacy" of the person are at stake or searches that destroy or unreasonably damage personal property.

In Kolsuz's favor is a recent U.S. Supreme Court decision called Riley v. California. In Riley, the Supreme Court held that cells phones may only be searched incident to an arrest with a warrant based on probable cause to believe the phone contains evidence of a crime. Riley was not a border search, but it did set a bar for local police indicating that the search of a cell phone is not the same as a pat down intended to protect the arresting officer and preserve evidence.

Kolsuz's first argument was that once the phone was taken from him (for a month) and he was in custody, the rationale for the border search exception dissipated and  warrant became necessary. This makes some sense. To the extent the border search exists to allow the United States to control its borders and interdict incoming or outbound contraband, it has already served its purpose. Subsequent investigation, which involved the detailed search of personal data, should, according to this argument, require a warrant. The Court disagreed and held that because the search began as a border search and involved a transnational crime, it remained connected to the border and the border search exception applies.

The defendant's next argument was that a month-long forensic deep dive into a personal cell phone is "highly invasive" and not the kind of routine search permitted at the border without a warrant. The Court agreed that the forensic search should be considered "non-routine," involving a threat to the dignity and privacy of Kolsuz. The factors the Court found persuasive include:

• the shear amount of data stored on a modern smart phone, which greatly exceeds what could be hand carried or packed into a car if printed, and 
• the uniquely personal nature of the data on a smart phone including contacts, email, physical locations and web history.

However, it does not follow that an invasive, non-routine search at the border requires a warrant. This is where things start to fall apart for Kolsuz. The Court noted that even after Riley, there is no binding precedent holding that an invasive forensic search of a cell phone at the border requires a warrant. Rather, the CBP officers involved reasonably relied on the current understanding that a non-routine search may be conducted on the basis of reasonable suspicion. Having previously found firearm parts in his bags, CBP had reasonable and individualized suspicion that Kolsuz's phone might contain evidence of a crime. Thus, the search was permissible.

There are other similar cases making their way through the courts. Eventually, this will end up at the Supreme Court. In the meantime, travelers take note. I have read lots of advice about encryption and burner phones and leaving all sensitive data in the cloud. I'm not going to give legal advice on this. You need to do what is appropriate. If you have concerns, talk to a lawyer.

Traveling lawyers should keep in mind that their phones and other personal devices may contain privileged information that needs special attention if stopped by CBP (or any police agency). Finally, corporate compliance policies should take this into consideration for traveling employees.

Hat tip to Peter Quinter of GrayRobinson.

Had I been thinking and available to do it, I would have posted this on April 20. Sorry I am late.

Grab some snacks, because we are about to discuss HQ H282163 (Apr. 13, 2017), which addresses whether a storage case with multiple adjustable compartments and a combination lock closure is prohibited merchandise.

Why would that be the case? It might help to know that the cases go by the name "Stashlogix" and come in three modes: Go-Stash, Eco-Stash and Pro-Stash. In addition to the combination lock, other Stashlogix features include a "stash journal" to "help keep track of all those crazy names," a UV-proof jar that can be re-labeled, odor absorbing packs, and a labeling marker. The products are designed "based on the principles of functionality, security, and discretion." The company advertises that the cases are used to store valuable private items such as fire-arms and addictive pharmaceuticals.

Here is a picture of the "Pro-Stash" case:

any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, possession of which is unlawful under this subchapter. It includes items primarily intended or designed for use in ingesting, inhaling, or otherwise introducing marijuana . . . .

1. instructions, oral or written, provided with the item concerning its use;
2. descriptive materials accompanying the item which explain or depict its use;
3. national and local advertising concerning its use;
4. the manner in which the item is displayed for sale;
5. whether the owner, or anyone in control of the item, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;
6. direct or circumstantial evidence of the ratio of sales of the item(s) to the total sales of the business enterprise;
7. the existence and scope of legitimate uses of the item in the community; and
8. expert testimony concerning its use.

Given all of this, the legal question is whether the Stashlogix cases are "primarily intended for use" and "designed for use" in, among other things, concealing a controlled substance. These are to be considered objectively and with respect to the likely use of the item, not a specific or individual use. My example of the well-organized chef, does not help if the most likely use is by the Stoner Mom and her stoner ilk.

So, what is the evidence of intended use and design?

First, the odor absorbing packets are described as providing "discretion." According to Customs and Border Protection, the intent and likely use of these packets is to conceal the odor of weed.

What about the UV-proof jars? Initially, I thought the intent was to preserve the contents by blocking UV light; like putting beer in an amber or green bottle. Apparently, my weed knowledge is limited. According to Customs, the specific type of glass involved here has the capacity to absorb UV light and also X-rays. That means the jars are designed and intended to help conceal, rather than preserve, the contents.

Marketing for the bags did not help. As mentioned, they are sold along side other bags that are more explicitly for the storage of pot by retailers expressly catering to stoners. It is hard to say whether that marketing should be imputed to Stashlogix. The fact that Stoner Mom and other bloggers find the bag useful is not really direct evidence of Stashlogix's design and intent.

On the other hand, Stashlogix does not seem to have gone out of its way to break that association. Stashlogix does not explicitly say it makes and imports stash bags for stoners. It says it provides locking cases for people looking to discretely store private items. Those private items could be prescription medications, weapons, or anything else. A post on its website includes this picture:

Because this is the 21st Century, I figured I should try more than one media. Below is the recording of a webinar I conducted with my colleague Chuck Joern.


Consumer Products and Import Requirements from Barnes Global Trade on Vimeo.