United States v. Kolsuz

185 F. Supp. 3d 843, 2016 U.S. Dist. LEXIS 60538, 2016 WL 2658156
CourtDistrict Court, E.D. Virginia
DecidedMay 5, 2016
DocketCase No. 1:16-CR-53
StatusPublished
Cited by5 cases

This text of 185 F. Supp. 3d 843 (United States v. Kolsuz) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kolsuz, 185 F. Supp. 3d 843, 2016 U.S. Dist. LEXIS 60538, 2016 WL 2658156 (E.D. Va. 2016).

Opinion

MEMORANDUM OPINION

T.S. Ellis, III, United States District Judge

Defendant is charged in a three-count indictment with (i) attempting to export from the United States various firearms parts on the United States Munitions List (“USML”) without a license, in violation of 22 U.S.C. § 2778, (ii) attempting to smuggle goods from the United States, in violation of 18 U.S.C. § 554(a), and (iii) engaging in a conspiracy to commit those offenses, in violation of 18 U.S.C. § 371. [846]*846At issue is defendant’s pre-trial motion to suppress evidence discovered as a result of the government’s two warrantless searches of defendant’s cell phone, which the government seized as defendant was about to board an airplane to leave the United States. The government first searched defendant’s cell phone at the airport by reviewing the cell phone’s most recent calls and text messages. Thereafter, following defendant’s arrest, the government transported defendant’s cell phone to an off-site facility and conducted an extensive forensic search of the information contained on the cell phone. Defendant’s motion to suppress presents the following questions:

(i) whether the search of defendant’s cell phone conducted at the airport and the search of defendant’s cell phone conducted at the off-site location qualify as border searches; and
(ii) if so, whether both searches of defendant’s cell phone qualify as routine border searches that do not require a warrant, probable cause, reasonable suspicion, or any level of individualized suspicion.

As the matter has been fully briefed and argued orally, it is now ripe for disposition.

I.1

On January 25, 2016, defendant, a Turkish citizen who speaks little English, entered the United States at Miami International Airport on a B2 visitor’s visa.

Thereafter, on February 1, 2016, Charles Reich, the United States Customs and Border Protection (“CBP”) Special Agent assigned to the New York Hoine-land Security Investigations (“HSI”) Field Office, called CBP Supervisory Officer Mike Augustino and Special Agent Jay Culley, who were on duty at Washington Dulles International Airport (“Dulles”), and informed them (i) that defendant had previously been stopped at John F. Kennedy International Airport (“JFK”) attempting to export items on the USML from the United States to the Republic of Turkey without an export license, (ii) that defendant was scheduled to fly from Dulles to Turkey the following day, February 2, 2016, and (iii) that at Dulles, defendant’s checked bags should be searched to determine whether they contained any firearms parts.

Thereafter, Special Agent Reich sent a follow up email to Supervisory Officer Au-gustino and Special Agent Culley, providing them with (i) defendant’s name, date of birth, and Turkish citizenship, (ii) the summary written by the CBP officer who interviewed defendant when he entered the United States on January 25, 2016, and (iii) defendant’s flight itinerary. Gov. Ex. 1, Reich Email. The email also stated, “[n]ot sure how his English is, on 1/08/2013 (2013SZ003360701) he was stopped by CBP exodus team at jfk with gun parts. Had a Turkish speaking [CBP officer] on site.” Id. In the same email, Special Agent Reich again asked Supervisory Officer Au-gustino and Special Agent Culley to examine defendant’s checked bags to look for firearms parts. Special Agent Reich also requested that Supervisory Officer Augus-tino and Special Agent Culley ask defendant various questions.2

[847]*847Shortly thereafter, Supervisory Officer Augustino . forwarded Special Agent Reich’s email to CBP’s Tactical Terrorist Response Team (“TTRT”)- and the Coun-terterrorism Response: Team at Dulles. Thereafter, TTRT -Supervisory Officer Lauren Colgan assigned CBP Officer Jonathan Budd to -the matter. Both Supervisory Officer • Colgan and Officer Budd reviewed Special Agent Reich’s email.

After reading Special Agent Reich’s email, Supervisory Officer- Colgan reviewed a CBP report summarizing the circumstances involved in the January 8, 2013 stop of defendant at JFK. This report disclosed:

(i) that on January 8, 2013, a search of defendant’s checked luggage revealed a Beretta .380 automatic pistol slide, a barrel, a guide rod, and a recoil spring;
(ii) that the CBP detained the parts and referred’the matter‘to the United States Department of State to determine whether the parts were on the USML; and , ,
(iii) that the parts were seized one week later after CBP was advised by the Department- of .State that the parts were listed on the USML and could not legally be exported from the United States without a license from the United States Department of State Directorate of Defense Trade Controls (“DDTC”).

The CBP report also referred to an incident on December 2, 2012, in which firearms parts listed on the USML were found in defendant’s luggage when he attempted to transport his luggage from the United States, through JFK, to Turkey without an export license from the Departs ment of State. CBP agents seized these firearms parts. In addition to reviewing the CBP report, Supervisory Officer Col-gan also reviewed TECS3 records memorializing the December 2, 2012 and January 8, 2013 stops of defendant at JFK, which disclosed defendant’s prior attempts to export firearms parts without a license.

On February- 2, 2016, defendant began his return trip to Turkey by checking in at Miami International Airport for a series of flights that would take him and his checked luggage through Cleveland Hopkins -International Airport and Dulles to Istanbul, Turkey. After defendant and his checked luggage arrived at Dulles, defendant’s checked bags were removed from defendant’s inbound United Airlines flight, but at Supervisory Officer Colgan and Officer Budd’s instruction, the checked bags were not loaded onto defendant’s outbound Turkish Airlines flight.

Once Supervisory Officer Colgan and Officer Budd obtained defendant’s two pieces of checked luggage, they performed an outbound customs examination of the luggage and discovered various firearms parts. Specifically, the inspection revealed eighteen handgun barrels, twenty-two 9mm handgun magazines, four ,45 caliber handgun magazines, and one .22 caliber Glock caliber conversion kit.4 Based on their training and experience, Supervisory Officer Colgan and Officer Budd immediately knew that the barrels and the caliber conversion kit were listed on the USML, [848]*848and therefore defendant could not lawfully remove these items from the United States without a DDTC export license.

After Supervisory Officer Colgan and Officer Budd discovered the firearms parts in defendant’s checked luggage, Special Agent Culley arrived at Dulles. Shortly thereafter, Supervisory Officer Colgan, Officer Budd, Supervisory Officer Augustino, and Special Agent Culley conducted an outbound customs inspection of defendant on the jetway as he attempted to board his flight to Istanbul.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Hamza Kolsuz
Fourth Circuit, 2018
Alasaad v. Duke
D. Massachusetts, 2018
United States v. Maria Molina-Isidoro
884 F.3d 287 (Fifth Circuit, 2018)
United States v. Molina-Isidoro
267 F. Supp. 3d 900 (W.D. Texas, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
185 F. Supp. 3d 843, 2016 U.S. Dist. LEXIS 60538, 2016 WL 2658156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kolsuz-vaed-2016.