UNITED STATES of America, Plaintiff-Appellee, v. Daniel ORIAKHI, Defendant-Appellant.
No. 93-5252.
United States Court of Appeals, Fourth Circuit.
June 22, 1995.
Argued Feb. 2, 1995.
III. CONCLUSION
For all the reasons detailed above, we will affirm the judgment of the district court.
Before: SLOVITER, Chief Judge, and BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, MCKEE, and SAROKIN, Circuit Judges.
SUR PETITION FOR REHEARING
Aug. 1, 1995
The petition for rehearing filed by the appellant, Thomas Fashauer, Jr., in the above captioned matter having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the court in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
Before NIEMEYER, Circuit Judge, PHILLIPS, Senior Circuit Judge, and YOUNG, Senior United States District Judge for the District of Maryland, sitting by designation.
Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Senior Judge YOUNG joined, and Senior Judge PHILLIPS wrote a specially concurring opinion.
OPINION
NIEMEYER, Circuit Judge:
Daniel Oriakhi was indicted by a grand jury in the District of Maryland for participating in a conspiracy to distribute heroin and for possessing heroin with the intent to distribute on two separate occasions. During trial, the government introduced evidence seized in two separate searches in the New York area in December 1990, as well as evidence obtained through court-approved wiretaps. Oriakhi was convicted on all counts and sentenced to 300 months imprisonment. He now challenges various aspects of his trial, contending principally that both searches in the New York area were illegal, that the wiretaps were illegally obtained, and therefore that important evidence obtained from these searches and wiretaps should not have been admitted at trial. Finding his arguments unpersuasive, we affirm.
I
During the period from late 1988 through April 1990, two large scale heroin distribution organizations were operating in the Baltimore area, one headed by Robert Dowdy, the other by Linwood Williams. Both organizations were supplied heroin by Daniel Oriakhi and his partners. Oriakhi originally worked with his brother, Felix Oriakhi, to smuggle heroin into the United States from their native Nigeria. When Daniel and Felix Oriakhi broke off their relationship in the late fall of 1989, Daniel Oriakhi formed a new partnership with Raymond Ebo, who resided in New York. Together Daniel Oriakhi and Ebo continued to supply heroin to the Dowdy and Williams organizations in Baltimore. Oriakhi and Ebo sent couriers to Nairobi, Kenya, to obtain kilogram quantities of heroin from a Nairobi supplier and then to smuggle the drugs into the United States for distribution.
Oriakhi‘s participation as a supplier to the Baltimore organizations first came to the government‘s attention in 1989 during an investigation of the Dowdy and Williams organizations by the Baltimore police and the federal Drug Enforcement Administration (DEA). Government agents were able to observe Daniel Oriakhi actually deliver heroin to Dowdy at Dowdy‘s apartment in Baltimore and to Williams at the Owings Mills Mall north of Baltimore. Surveillance officers also followed Oriakhi and observed him hand two men a bag which was later seized and found to contain $47,000 in cash.
When Dowdy was arrested in February 1990, he agreed to cooperate with the government‘s ongoing investigation of the Baltimore organizations. Oriakhi‘s brother Felix was arrested a short time later, but Daniel Oriakhi fled the United States to Nigeria. Notwithstanding his flight, in June 1990 Daniel Oriakhi was indicted along with seven others for conspiracy to import heroin into the United States in violation of
Oriakhi returned to the United States later in the summer of 1990 with a false passport issued in the name of “Adoga Smith.” Oriakhi apparently continued his drug enterprise under the names “Adoga Smith” and “The Adoga Smith Company,” although government officials were not able at the time to connect Oriakhi with his “Adoga Smith” alias.
Three days after the search in Port Elizabeth, an independent search was conducted of Oriakhi at the J.F.K. International Airport in New York. Oriakhi had checked some luggage under “Adoga Smith” on a Swissair flight bound for Zurich, Switzerland, but Oriakhi‘s bags were checked through to Lagos, Nigeria. A Swissair official, as a matter of course, notified the U.S. Customs Contraband Enforcement Team that some baggage had been checked through to Nigeria and was about to be loaded onto the plane. The Contraband Enforcement Team typically scrutinizes freight and passengers arriving from and departing to locations considered suspicious for one of several reasons. High risk areas on the in-bound side include narcotic source countries and “transit countries” from which seizures have been made in the past. On the out-bound side, the Team focuses on passengers and baggage headed for countries considered to be high risk destinations for the illegal export of U.S. currency or critical technology. The Team regards Nigeria as a high risk country on in-bound flights because of the potential for concealed narcotics and a “light risk” country on out-bound flights because of the potential for the export of currency which may be the proceeds from drug trafficking.
Customs officials at J.F.K. proceeded to examine the bags checked by Oriakhi for destination to Lagos, Nigeria, in the Swissair baggage room with a portable x-ray machine. The x-ray of one suitcase disclosed the image of a handgun. The inspectors opened the suitcase and found two 9mm semi-automatic handguns and 10 boxes of 9mm ammunition. They then learned that the suitcase had been checked by a passenger named “Adoga Smith” and proceeded to open and search the other bags checked under that name. The inspectors found $10,000 in $100 bills in the pocket of a pair of pants in one of the other bags.
A customs officer then had Swissair make an announcement requesting “Adoga Smith” to disembark from the plane. Oriakhi voluntarily walked off the plane and was questioned by the customs officer on the Jetway. After examining his passport, the officer explained to Oriakhi that currency reporting laws required anyone leaving the country with $10,000 or more to fill out a particular form. The officer asked Oriakhi to fill out such a form, which he did, declaring that he was leaving the country with only $2,000. The officer then searched Oriakhi‘s person by patting him down. Numerous packets of U.S. currency totalling $97,000 were discovered on Oriakhi‘s person. An additional $5,000 was recovered from the attache case he was carrying. The customs officer read Oriakhi his Miranda warnings and arrested him, charging him in the Eastern District of New York with currency and weapons violations. But law enforcement officials were still unaware of Oriakhi‘s true identity or that he was the subject of an indictment in Maryland.
Oriakhi filed motions to suppress evidence obtained from the New York searches and wiretaps, which were denied. In December 1992 the jury found Oriakhi guilty on all counts. The court sentenced Oriakhi to concurrent terms of 300 months imprisonment on each count. The sentences were also designated to run concurrently with the sentence imposed by the Eastern District of New York for the currency and firearms violations.
II
Oriakhi‘s strongest argument on appeal is his challenge to the admission of evidence seized during the New Jersey port search of his freight container and the New York airport search of his luggage in December 1990. Neither search was conducted pursuant to a warrant. Oriakhi contends that the searches were conducted in violation of his Fourth Amendment rights because they were conducted without probable cause or even reasonable suspicion.1 Although Oriakhi acknowledges that these searches occurred “at the border”2 and that routine searches of persons and effects entering the country may be conducted at the border without a warrant, probable cause, or any level of individualized suspicion, he contends that this border search exception to the Fourth Amendment does not apply to persons and their effects leaving the country. He argues that the principal case articulating the border search exception to the Fourth Amendment, United States v. Ramsey, 431 U.S. 606 (1977), is ambiguous as to whether the exception applies to exit searches. In Ramsey, the Court summarized the centuries-old doctrine:
Border searches, then, from before the adoption of the Fourth Amendment, have been considered to be “reasonable” by the single fact that the person or item in question had entered into our country from outside. There has never been any additional requirement that the reasonableness of a border search depended on the existence of probable cause. This long-standing recognition that searches at our bor-
Id. at 619 (footnote omitted). Oriakhi emphasizes that Ramsey‘s language is not clear as to whether its holding applies only to persons and objects “enter[ing] into our country from outside,” or more broadly to all “searches at our borders.” Id. He thus contends that “considerable controversy exists as to whether the border search exception applies to searches of persons and their belongings exiting the country,” and he urges us to adopt his narrow reading of Ramsey.
The issue of whether the border search exception to the Fourth Amendment‘s reasonableness requirement extends to exit searches is one of first impression in this circuit. While this circuit has yet to rule on this issue, every other circuit addressing the issue has held that the exception applies regardless of whether the person or items searched are entering or exiting the United States.3 Although Oriakhi correctly notes that several of these appellate decisions were made by divided courts, any “considerable controversy” that may have existed on the scope of the border search exception has now been replaced by a considerable consensus. The one case on which Oriakhi relied, United States v. Ezeiruaku, 754 F.Supp. 420 (E.D.Pa.1990), had been reversed by the Third Circuit in United States v. Ezeiruaku, 936 F.2d 136 (3d Cir.1991), well in advance of Oriakhi‘s trial.4
The rationale for exempting border searches from the Fourth Amendment‘s probable cause and warrant requirements rests on fundamental principles of national sovereignty, which apply equally to exit and entry searches. Even though Oriakhi places great emphasis on language in Ramsey that “[t]he border search exception is grounded in the recognized right of the sovereign to control . . . who and what may enter the country,” 431 U.S. at 620 (emphasis added), we note that the Supreme Court also emphasized that the right to control who and what enters the country is derived from a broader and more basic principle, the “long-standing right of the sovereign to protect itself.” Id. at 616.
National sovereignty is the undivided power of a people and their government within a territory, and a nation draws on that power when it acts in relationship to other nations. The sovereign power does not depend on a particular form of internal or domestic governmental organization. Thus, regardless of how power is organized and divided within a nation‘s territory, inherent in national sovereignty are the overarching rights of a nation to defend itself from outside threats, to act in relation to other nations, and to secure its territory and assets. See, generally, United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315-18 (1936) (explaining that the United States’ power to act as a sovereign nation is defined “not in the provisions of the Constitution, but in the law of nations“). From the sovereign‘s power to protect itself is derived its power to exclude harmful influences, including undesirable aliens, from the sovereign‘s territory, see id. at 318; United States v. Montoya de Hernandez, 473 U.S. 531, 544 (1985),
While it is undoubtedly true that border searches are more often conducted in furtherance of the sovereign‘s interest in excluding undesirable outside influences, such as entrants with communicable diseases, narcotics, or explosives, see e.g. Montoya de Hernandez, 473 U.S. at 544, that interest in exclusion is not the only function of the border search. As important is the sovereign‘s interest in regulating foreign commerce and, in particular, in regulating and controlling its currency. The economic lifeblood of a nation is drawn from its monetary supply, and the protection of the nation‘s currency is crucial to its economic survival. Other courts have similarly recognized the paramount importance of regulating currency in analyzing the “reasonableness” of exit searches. As the Eleventh Circuit observed:
The governmental interest in stemming the flow of unreported currency out of the United States is substantial. . . . The “long-standing right of the sovereign to protect itself” that underlies the traditional rationale for the border search exception is implicated to a substantial degree where the international borders of the United States are penetrated by large sums of undeclared currency departing this country.
Hernandez-Salazar, 813 F.2d at 1138 (footnotes omitted).
While the sovereign‘s ability to regulate its currency is important in itself, it is even more significant in light of the overwhelming flow of illegal narcotics into the United States. Regulating the export of currency provides a mechanism for controlling the import of narcotics since there must be an accompanying outflow of cash to pay for the import of billions of dollars worth of illegal drugs. It is therefore also recognized that the “dictates of public policy [against drug trafficking] reinforce the necessity of identifying, if not monitoring or controlling, a cash outflow from the country as well as an influx of narcotics into the country.” Ezeiruaku, 936 F.2d at 143.
In sum, even though in Ramsey the border search under consideration involved opening mail used to import heroin into the United States, the principles articulated in that case also apply to the sovereign interest of protecting and monitoring exports from the country, including, importantly, its currency. Accordingly, we join the several other circuit courts which have held that the Ramsey border search exception extends to all routine searches at the nation‘s borders, irrespective of whether persons or effects are entering or exiting from the country.
In this case, the search of “Adoga Smith‘s” freight container at Port Elizabeth, New Jersey, was a routine border search directed at exports to suspect countries and exports without appropriate paperwork. And the independent search of “Adoga Smith” at J.F.K. airport was similarly directed routinely at the illegal export of U.S. currency. Both searches began as routine and were expanded only as further information developed. Even though the searches were not conducted upon probable cause or pursuant to a warrant and were conducted upon a person exiting from the country, each search fell properly within the border search exception to the Fourth Amendment.
III
Oriakhi also contends that evidence obtained through a court-approved wiretap monitoring the operations of the Dowdy and Williams narcotics organizations should have
Electronic eavesdropping by law enforcement personnel is governed by the federal wiretap statute, codified at
The purpose of
In this case, the government‘s affidavits specifically detailed how it exhausted reasonable alternatives to investigate the Dowdy and Williams organizations through surveillance, telephone tolls, informants, and attempts to establish undercover operatives. The affidavits also set forth the difficulties involved in establishing undercover contact with Oriakhi given that Oriakhi was new to the country, spoke a foreign language, and knew few people in the area. While the several affidavits for the various wiretaps involved may have relied on the same facts, their recitation was not boilerplate. An appellate court owes “considerable deference” to the district court‘s determination that “exhaustion” has been shown, see id., and on these facts, the district court‘s findings are amply supported.
IV
Oriakhi contends next that the court improperly allowed Robert Dowdy, a co-conspirator, and Special Agent Rivello to testify that the voice heard on several incriminating audio tapes was Oriakhi‘s. He argues (1) that Dowdy‘s testimony was obtained through an impermissibly suggestive procedure and (2) that Rivello‘s testimony was based on conversations he had with Oriakhi which themselves would not be admissible in evidence, such as plea discussions. We reject both contentions.
Regarding Dowdy‘s testimony, Oriakhi asserts that Dowdy made his identification by listening to the tapes with the aid of a government-prepared transcript containing portions of dialogue labeled with the name of “Daniel Oriakhi.” We agree that if the record revealed that this was how Dowdy made his identification, Oriakhi‘s challenge on appeal might have merit. However, the record does not support this assertion. Although the transcript of Dowdy‘s testimony is not conclusive on this point, it is sufficiently clear to affirm the district court‘s finding that Dowdy initially identified the voice on the tapes based solely on Dowdy‘s personal knowledge of Oriakhi‘s voice and his interaction with Oriakhi spanning a period of almost one year. Dowdy specifically testified that no one told him in advance whose voices he
Oriakhi does not dispute the well-settled rule that the sound of a defendant‘s voice, even if heard during privileged communications, is not itself testimonial, and therefore is not protected by the Fifth Amendment privilege against self-incrimination. See United States v. Dionisio, 410 U.S. 1, 8 (1973); Doe v. United States, 487 U.S. 201, 210 (1988) (“in order to be testimonial, an accused‘s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.“). Indeed, Oriakhi recognizes that a criminal suspect may be compelled to furnish a voice exemplar without impinging on Fifth Amendment protections. See id. Rather, Oriakhi argues that since Agent Rivello “could have easily identified him from his thought processes and the content of his speech, both of which are testimonial and protected by the Fifth Amendment” (emphasis added), the voice identification made by Rivello was presumptively inadmissible. Furthermore, he claims, without citing any authority, that the government had the burden of proving that Agent Rivello‘s identification was based on the sound of Oriakhi‘s voice rather than the content of his speech. Aside from these bald assertions, Oriakhi has failed to explain how Rivello may have identified his voice by the content of what he said rather than the sound of his voice. Beyond this, it was for the factfinder to determine whether Agent Rivello testified truthfully when he stated that he made his identification based on the sound of Oriakhi‘s voice.
Oriakhi also claims that his Sixth Amendment right to counsel, as set forth in Massiah v. United States, 377 U.S. 201 (1964), was violated when Agent Rivello heard Oriakhi‘s voice without the active participation of counsel to protect him from making unwise or improper disclosures. In Gilbert v. California, 388 U.S. 263 (1967), however, the Court held that the government could take a handwriting exemplar from a defendant without the presence of counsel because taking the sample was not a “critical stage” of the proceedings and any inaccuracy in the exemplar could be corrected in the adversary process at trial. Id. at 267. The Court‘s reasoning in Gilbert would likewise apply to the taking of a voice exemplar. Since Agent Rivello‘s hearing the sound of Oriakhi‘s voice was the functional equivalent of taking a voice sample, the fact that Agent Rivello happened to hear Oriakhi‘s voice outside the presence of counsel while informally speaking with Oriakhi during escorts did not violate Oriakhi‘s Sixth Amendment rights.
Finally, Oriakhi‘s argument that
V
During the course of the trial, the prosecution admitted into evidence numerous tapes of Oriakhi‘s telephone conversations intercepted by government agents. On appeal, Oriakhi singles out one of these tapes, known as “Tape-67,” and demands an evidentiary hearing to rebut the government‘s claim that the tape was properly minimized under
The wiretapping statute does not require that all innocent communications be left untouched. Rather, it requires simply that unnecessary intrusions into speakers’ privacy be minimized or “reduced to the smallest degree possible.” See United States v. Clerkley, 556 F.2d 709, 716 (4th Cir.1977), cert. denied, 436 U.S. 930 (1978). In determining whether the minimization requirements of
The tape in question, Tape-67, contains a conversation between Daniel Oriakhi and the wife of his brother, Felix Oriakhi, which entire conversation was played for the jury. Oriakhi claims that the conversation was completely personal in nature and unrelated to any offense with which Oriakhi was charged. The government responds that, while neither of the parties to the conversation explicitly mentioned drugs or drug trafficking, a constantly recurring subject was the money which Daniel Oriakhi intended to send to his family in Nigeria. The government argues that most of the conversation was highly relevant because at the time the conversation was intercepted, the government was investigating Oriakhi‘s role in a drug conspiracy which involved exporting drug proceeds to Nigeria.
Given the nature of the government‘s investigation into the export of drug proceeds and into the importation and distribution of drugs in this case, we find no error in the district court‘s conclusion that admission of the entire Tape-67 was reasonable under
VI
Finally, Oriakhi contends that his trial was fundamentally unfair because the district court refused his request to define “reasonable doubt” in the jury instructions. It is well settled in this circuit that a district court should not attempt to define the term “reasonable doubt” in a jury instruction absent a specific request for such a definition from the jury. See, e.g., United States v. Headspeth, 852 F.2d 753, 755 (4th Cir.1988). We have repeatedly concluded that the words “beyond a reasonable doubt” have the meaning generally understood for them and that further efforts to restate their meaning with different words tend either to alter or to obfuscate that meaning. See, e.g., United States v. Reives, 15 F.3d 42, 45 (4th Cir.) (“there is no better way of explaining the concept“), cert. denied, 512 U.S. 1225, 114 S.Ct. 2679 (1994). See also Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 1243 (1994) (“the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course.“). As we observed in Reives:
If there is a definition that can clarify the meaning of reasonable doubt, common sense suggests that such a definition be offered to all juries, even those that do not venture a request. But until we find a definition that so captures the meaning of “reasonable doubt” that we would mandate its use in all criminal trials in this circuit, we cannot hold that it is error to refuse to give some definition.
For the reasons given, the judgment of the district court in this case is
AFFIRMED.
PHILLIPS, Senior Circuit Judge, specially concurring:
I concur in the judgment and in Parts I, III, IV, V, and VI of the majority opinion. I write separately because I would affirm the judgment on different grounds than those relied on by the majority in Part II of its opinion. I understand the majority there to hold that the “border search exception” to the Fourth Amendment which permits government agents to conduct “routine” searches of persons and things entering the country even absent any degree of particularized suspicion1 applies to searches of persons and things exiting, as well as entering, the country. I believe that that critical constitutional holding is not necessary in order to resolve this case and affirm the judgment. And, with all respect, I believe that whether it conforms to Supreme Court precedent is a far more equivocal issue than the majority acknowledges. For these reasons—non-necessity to decision and closeness of the issue—I would avoid the issue vel non of the border search exception‘s applicability to exit searches. I would instead uphold the two border searches here at issue as consistent with ordinary “interior” Fourth Amendment jurisprudence, specifically on the basis that neither was “unreasonable” within the meaning of settled Fourth Amendment doctrine.
I.
A conclusion that the ordinary rules of Fourth Amendment jurisprudence, rather than the border search “exception,” govern exit searches need not entail that the searches here at issue were unreasonable just because they were conducted without a warrant issued upon probable cause. Neither probable cause nor a warrant is invariably required whether at the international borders or in the interior. “Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place.” New Jersey v. T.L.O., 469 U.S. 325, 337 (1985). The Supreme Court repeatedly has emphasized that “the permissibility of a particular practice ‘is judged by balancing its intrusion on the individual‘s Fourth Amendment interests against its promotion of legitimate government interests.‘” Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 619 (1989) (quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979)). This does not mean that whether a particular search is reasonable depends in each case upon an ad hoc balancing of factors. The Court‘s approach seems rather to be one of categorical balancing. Therefore, even were it not the case that “the border search exception to the Fourth Amendment‘s reasonableness requirement extends to exit searches,” ante, at 1296, it would nonetheless remain true that the fact that a search was conducted of persons or things exiting the country must be relevant to the balance, for “the Fourth Amendment‘s balance of reasonableness is qualitatively different at the international border than in the
The fact that a particular search occurs as a person or her effects are leaving the country bears relevance to Fourth Amendment analysis in at least two ways. First, the government‘s need to apprehend the traveller before the crime is completed is particularly great when the completion of the crime necessarily will occur beyond the nation‘s territorial jurisdiction. Because investigation of the crime and apprehension of the perpetrator are likely to be especially difficult in cases of illegal export, law enforcement efforts must naturally focus more heavily on crime prevention. Second, travellers (or exporters) undoubtedly have a lesser expectation of privacy when they (or their goods) leave the country; see, e.g., United States v. Stanley, 545 F.2d 661, 667 (9th Cir.1976), cert. denied, 436 U.S. 917 (1978), if for no other reason than that the departure from the United States is almost invariably followed by an entry into another country which will likely conduct its own border search. For these reasons, I have no doubt that the usually requisite degree of suspicion—probable cause—ought not to govern exit searches. Exit searches ought to be constitutionally “reasonable” so long as the government agent has an objectively reasonable suspicion that a search of the person or property in question would reveal a violation of the law.
A.
Customs agents opened Oriakhi‘s shipping container because it was bound for a narcotics source country and was accompanied by vague and incomplete documentation which conspicuously omitted the names of a shipper or a consignee. The agents had the requisite reasonable suspicion. What they did not have was a warrant. But they did not need one. As the majority notes, ante, at 1295 n. 1, the New Jersey container search was conducted pursuant to customs officers’ duty to enforce the criminal laws regulating currency export. Consequently, the search was not a regulatory inspection directed to discovering health or safety violations but, rather, one undertaken for traditional law enforcement purposes. Because the Fourth Amendment itself directs that “no Warrant shall issue, but upon probable cause,” the Supreme Court has held that, at least outside of the administrative search context, the constitution does not require a warrant when the degree of suspicion necessary to make a search is less than probable cause. Griffin v. Wisconsin, 483 U.S. 868, 877-78 (1987). Consequently, as an exit search supported by reasonable suspicion, the New Jersey container search passed Fourth Amendment muster even though conducted without a warrant and without any need to invoke the border search exception.
B.
The search of Oriakhi‘s luggage at JFK airport was also constitutionally reasonable, though for somewhat different reasons. The crucial fact here is that customs agents x-rayed Oriakhi‘s luggage before they opened
Of course, once the x-ray revealed firearms and ammunition, customs agents had probable cause to suspect that a crime was being committed. See
II.
Because Oriakhi‘s challenge to the New Jersey and New York exit searches should be rejected regardless whether the border search exception applies to exit searches, I believe that we need not reach the more profound constitutional question whether government agents may conduct “routine” searches of all persons and effects exiting the country even absent any degree of particularized suspicion. Nonetheless, it might be appropriate to reach that question if it were an open-and-shut one that should be decided now simply to provide circuit precedent on an important question of first impression. For the reasons that briefly follow, I do not think the question is nearly as clear-cut as does the majority and therefore I would reserve it for a case in which its resolution is strictly necessary.
First, I believe the majority understates the case in observing that “the Supreme Court has not yet ruled directly on the question of whether the border search exception to the Fourth Amendment applies to persons leaving the country.” Ante, at 1295-96 n. 4. The Court has simply not ruled on that question directly or otherwise. As a chambers opinion, Julian v. United States, 463 U.S. 1308 (1983), reflects, of course, the view of only a single Member of the Court. And the dicta in Shultz that supports the majority‘s conclusion is counterbalanced by contrasting language from other Supreme Court decisions. See United States v. Ramsey, 431 U.S. at 619 (“Border searches, then, from before the adoption of the Fourth Amendment, have been considered to be ‘reasonable’ by the single fact that the person or item in question had entered into our country from outside.“) (emphasis added); Montoya de Hernandez, 473 U.S. at 538 (“Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant, and first-class mail may be opened without a warrant on less than probable cause, Ramsey, supra.“) (emphasis added).
Second and most important, the Supreme Court decisions that recognized the border search exception do not by their own logic apply to exit searches. In Ramsey, “the
Third, there is reason to doubt that the principle upon which the majority does exclusively rely—the long-standing right of the sovereign to protect itself—can shoulder the analytical burden assigned it. Because that principle is at least potentially implicated every time the government might wish to engage in a search, a more persuasive analysis is required to explain why that principle justifies placing exit searches within an “exception” to the Fourth Amendment. It is by no means self-evident either that the harm caused by illegal currency export is of extraordinary magnitude or that, in order to combat that harm, there is a compelling need for the sovereign to be able to conduct “routine” suspicionless searches of all persons and property leaving the country.4
Because we need not decide the weighty and difficult constitutional issue whether we and all our personal effects may be subjected to “routine” searches by the Government, without any particularized suspicion, possibly including searches of our effects outside our presence and without any advance notice, whenever we take a trip across our borders, I would not do so. That decision should await a case where it is flatly unavoidable.