United States v. Seljan

America, STATES UNITED America, STATES UNITED Plaintiff-Appellee, Plaintiff-Appellee, v. SELJAN, Defendant- John W. Appellant. HINKSON, Defendant- David Roland No. 05-50236. Appellant. Appeals, Court of United States

No. 05-30303. Ninth Circuit. Appeals, States Court United March Argued and Submitted Ninth Circuit. 23, 2008. Filed Oct. 20, 2008.

Oct. Esquire, Depart- Taxay, D.

Michael DC, Justice, Washington, for

ment of

Plaintiff-Appellee. Riordan, Horgan, Donald M. P.

Dennis Horgan, San Francis- Riordan &

Esquire, Smith, CA, Esquire, Thomp-

co, R. Curtis PLLC, Anderson, Idaho Smith Woolf

son

Falls, ID, Defendant-Appellant.

ORDER

KOZINSKI, Judge: Chief majority of nonre- the vote of a

Upon ordered that this judges, it is

cused active pursuant to Cir- reheard en banc

case be three-judge panel

cuit Rule 35-3. precedent not be cited

opinion shall Ninth any court of the Circuit.

or to TALLMAN

Judges SILVERMAN in the deliberations participate

did not case.

vote Brainin, CA, Angeles,

Jerald Los for Seljan. defendant-appellant John W. Raphael (argued), Michael Assistant J. CA, Attorney, Angeles, Los United States Lee, and Richard Y. Assistant United Ana, CA, Attorney, plain- Santa for States tiff-appellee United States of America. KOZINSKI, Before: ALEX Chief RYMER, Judge, and PAMELA A. SILVERMAN, BARRY M. G. McKEOWN, RAYMOND C. MARGARET RAWLINSON, FISHER, B. JOHNNIE CLIFTON, R. CONSUELO RICHARD CALLAHAN, BEA, T. M. CARLOS JR., SMITH, D. and SANDRA S. MILAN IKUTA, Judges. Circuit CLIFTON, Judge: inspected by Circuit us or such authorities any time.” Seljan appeals his conviction John multiple primarily sentence for offenses FedEx packages routes international involving young sexual misconduct with from through sent Southern California Philippines. in the children Federal company’s regional Oakland, hub Cali- agents investigated after customs fornia, regional one of four FedEx sorting inspectors, conducting routine facilities in the United States. At that facility unreported currency FedEx facility, packages by FedEx sorts destina- monetary in pack- and other instruments places tion and all pack- document-sized destinations, ages being foreign sent to ages particular country bound for a into sexually suggestive discovered letters package inspect- locked containers. If a Seljan. Seljan packages by appeals sent Customs,2 ed U.S. agents its do the the district of court’s denial his motion to inspection prior placement to the suppress resulting all evidence from those packages into the container. Once loaded searches, primarily contending that the container, into a package is not removed prohibited Fourth Amendment inspec- the until it arrives in the country, destination examining personal correspon- tors from in this case the Philippines. warrant, dence without a or from doing so after should have realized that Seljan’s When package passed first being document examined was not a mone- through facility the FedEx in Oakland on tary Seljan challenges instrument. also 21, 2002, November inspectors customs his sentence. We affirm. searching were packages bound for the Philippines part of an outbound curren- History I. Facts and Procedural cy operation. interdiction operation The Seljan packages sent from Southern Cal- detecting was aimed at violations of 31 Philippines ifornia to the via FedEx on at 5316, § U.S.C. prohibits export which separate least three dates: November import currency of undeclared or other 2, 2003, August September and monetary instruments worth more than Seljan 2003.1 pack- understood $10,000. As will be discussed in more ages had to “clear leaving customs” before below, detail inspectors are au- pack- United States. Affixed to each 5317(b) § thorized under 31 U.S.C. open to age waybill was an international air com- inspect and packages at the border to en- pleted signed by Seljan. A portion of force that statute. the form “Required Signature” labeled package by Seljan The FedEx sent was stated, Waybill “Use of this Air constitutes opened and part oper- examined as of that your agreement to of the Conditions Con- ation. It was found to contain two envel- tract Waybill.” on the back of this Air opes and return address labels for These included following conditions post office envelope box. The first provision: “Right con- Inspect. ship- to Your may, ment tained a bill in option request currency at our or at the and a $100 governmental authorities, opened pamphlet Bangkok. for a hotel in The 1. The facts related here are drawn reorganized from The U.S. Customs Service was findings as the Bureau of of fact entered the district Customs and Border court as Protec- Security tion in 2003. See Homeland Act part denying Seljan’s of its order motion to Pub.L. No. 116 Stat. Seljan, dismiss. United States v. (codified 542); at 6 U.S.C. De- (C.D.Cal.2004). F.Supp.2d partment Security Reorganiza- of Homeland Plan, (2003). tion H.R. Doc. No. 108-32 Again, inspectors copied Philip- note in search. peso a 500 contained second That a short letter. contents and allowed FedEx to deliver the currency and pine single side of a typed on one package. letter was which was a top at the paper,

sheet Immigration An the Bureau of agent of letter contained sexu- figure. The cartoon to inves- began and Customs Enforcement appeared language ally suggestive Seljan. property manager The tigate girl.3 eight-year-old to an be addressed Seljan’s former residence and one Sel- photocopied pack- officials Customs jan’s neighbors agent both told the former Fe- returning age’s contents before Seljan traveling Philip- to the spoke delivery. dEx for kids,” that he pines to “have sex with by Seljan sent package The second had pornography, showed child he inspectors at the intercepted by customs scrapbook bragged about his video and 3, 2003, during facility August on Oakland agent collection of similar materials. currency operation. another outbound determined that had traveled approximately contained This Philippines forty-three times between currency, pages in several $200 and 2003. two letters. One and pornography, adult at facil- inspectors Customs the Oakland addressed to the appeared letter to be Seljan’s third ity stopped and searched girl. It was more sex- eight-year-old same September on package FedEx than the November 2002 let- ually explicit photocopied contained nine package This ter, Seljan’s en- desire to expressed as it letters, currency, non-porno- in U.S. $100 girl. The other gage in sex acts with the minors, Seljan and graphic photos of with girl’s to another letter was addressed letters described pornography. adult The Seljan and stated that would mother in engage desire to sex acts .... September in know “coming back were ad- the children to whom the letters [redactedj’s 21th she’ll b-Day September letter addressed to the dressed. One original] in After be XXXX 9.” [errors 2002 letter. recipient of the November seeing por- and opening package but, contents letters, inspectors copied The agent and the customs nography time, withheld the from deliv- supervisor, recognized his who Sel- alerted ery. jan’s name from the November you your name on and it has photographic reproduction of the letter Chocalate

3. A box, please you let me know that at 497 F.3d as an so be found Judge Pregerson appendix to the dissent received this box. previously three-judge opinion coming filed a in and I'm not to Manila December text reads panel coming, of this court. The letter I'll sure when I'll be But I’m not spelling sure, (grammar and errors in as follows you Coz I do let know the date for original): you, please pic- me a want to see so send your your-self in next letter. I know ture of My Dear [redacted]: your age your smells like that "PEANUT” letter, you your but did not date I received That box cantens lots of “SWEET” Roses. Yes, Honey, girls your letter. I like little might you. and some fit clothes you picture me a you, like but did not send things that P500.00 for some extra Here’s your-self. you need. helped you write that letter I wonder who Now, old, your real soon. I'll wait for answer yrs you only 8 do have to me. For of Love & more. Lots handwritting. very nice Johnnie sending large many To-day box of we are girls I call me "JOHNNIE” family. All the know things In that box is for the whole young. keeps me candy special[indiscernible] of and a some Angeles Seljan arrived at Los Interna- held that had consented to these Airport baggage tional and checked for a by agreeing to the conditions on flight to Manila on October 2003. Cus- waybills, the air and that scope and stopped him before he agents toms board- conduct of the searches were reasonable. agents plane. ed the searched his Id. at 1085. discovering adult luggage, pornographic At the three-day conclusion of a bench magazines, pornography, book of child trial, Seljan guilty the district court found by Seljan, fifty-two and letters written of one count of attempted travel with in- in photographs Seljan engaged sex acts in engage tent to illicit sexual conduct

with Filipino children. 2423(b) (e); §§ violation of 18 U.S.C. Miranda Seljan signed a waiver two counts of use of an facility interstate incriminating made several statements. engage to entice a minor to in criminal “sexually He educating” said he had been sexual acts violation of 18 U.S.C. twenty years, children for about 2422(b); § one count production of child eight ages ranged children’s from to thir- pornography violation of 18 U.S.C. teen, “sexually and that he intended to 2251(a); possession two counts of trip educate” children on the he was there pornography child in violation of 18 U.S.C. day to take. He was not allowed to 2252A(a)(5)(B). however, depart trip, on and was placed arrest, under arrest. After his cus- The district court imposed sentence on agents toms executed a search warrant at March 2005. Citing the defendant’s pornog- his residence and discovered adult age the time imposed, sentence was —at raphy, pedophilia a fiction book about and Seljan years was 87 old—the court sen- incest, typewriter, and various business (20 tenced him to 240 years) months and travel documents. imprisonment. That duration was 22 Seljan subsequently filed a motion to months shorter than the low end of the suppress all evidence discovered as a re- range. calculated Guidelines sult of the searches of FedEx pack- his timely filed a A appeal. three- ages. argued He the warrantless judge panel affirmed, of this court search of fall packages these did not under judge one dissenting part, regarding the any exception to the Fourth Amendment’s denial United suppress. of the motion to minimum, warrant requirement. At a he (9th Seljan, v. States 497 F.3d 1035 Cir. asserted, these were “extended border 2007). By a majority vote of a of nonre searches” that must be supported rea- judges, cused active it was ordered that suspicion. Seljan sonable also contended the case be reheard en banc and that the scope of the searches was three-judge panel opinion not be cited as unreasonable. (9th Cir.2008). precedent. 512 F.3d 1203 Following evidentiary hearing, an Upon affirm rehearing, judgment we district court denied motion to of the district court.4 suppress. The held that in- district court spections facility at the Oakland were “tan- Suppress II. Motion to tamount inspection to an at the interna- Seljan, Seljan challenges F.Supp.2d tional border.” at the district court’s de- 328 alternative, 1083. In the the district court nial of his suppress motion to all evidence opinion directly 4. iy Pregerson Much of this drawn They from and Ronald M. Gould. per opinion curiam filed the three- were not drawn to serve en on this banc judge panel, primarily by Judges panel, appreciated. written Har- but their contributions are

999 728, Alfonso, F.2d inspec- of customs States v. 759 737 as a result discovered Cir.1985). he packages are Philippines-bound tions of the Such Seljan focuses on through FedEx. grounded government’s right pro sent in the search, Novem- which occurred on the first integrity by tect the nation’s territorial 21, He contends that the cus- ber examining persons property entering his Fourth inspectors toms violated country. leaving United States v. they opened the rights when Amendment Flores-Montano, 149, 152-53, 124 541 U.S. read the enclosed letter with- package and 1582, (2004); L.Ed.2d 311 S.Ct. see doing so out reasonable Cortez-Rocha, also United States contraband or uncover evi- would reveal (9th Cir.), denied, F.3d cert. activity. Seljan chal- dence of criminal 546 U.S. S.Ct. 163 L.Ed.2d lenges the later searches as tainted fruits (2005). at Because searches the inter- inspection. initial national border of both inbound and out- justifications government offers two property are persons bound conducted First, for the November 2002 search. to the “pursuant long-standing right of the at the occurring defends the search as one itself,” sovereign they generally to protect equivalent functional of the international require neither a warrant nor individual- few, border, if contending that there are suspicion. Ramsey, ized States v. United ability to any, government’s limits on the and that this search search the border Sutter, (1977); L.Ed.2d 617 see also not run afoul of such limitations. did 1025; Cardona, F.3d at United States v. Second, contends that government Sel- (9th Cir.1985) (“The fact jan by signing consented to the search an exit this case involves search does waybill.5 FedEx air analysis. not alter our Since the border searches, exception applies search to exit

The customs search the Oak principled there is no basis to conclude sorting facility took regional land FedEx that the extended border doctrine place equivalent at the functional apply equal not with force to exit does Abbouchi, v. border. United States 502 searches.”). entry it does to searches as (9th Cir.2007). should, It F.3d therefore, analyzed be as a border search.6 Supreme The Court has said that “ at the ... are ‘searches made border a “The border search doctrine is simply by reasonable virtue of the fact that exception to the Fourth Amend narrow ” they occur at the border.’ Flores-Monta prohibition against ment warrantless 152-53, no, at 124 S.Ct. 1582 541 U.S. probable searches without cause.” United at (quoting Ramsey, 431 U.S. (9th Sutter, v. 340 F.3d 1025 States Cortez-Rocha, 1972); see also 394 F.3d at Cir.2003). doctrine, Under lan- Notwithstanding 1118-19. this broad may officials conduct searches at the inter guage, suggested the Court has also identify illegal national border might impose the Fourth Amendment transportation of contraband or undeclared border, at the but articles across the border. See United some limits on searches Ani, (9th F.3d 391 Cir. 5. Because we hold that the border search of States v. 138 valid, constitutionally 1998). the FedEx was findings fact are A district court’s ground we do not reach the alternative reviewed clear error. United States v. to the search. consented Mendoza-Ortiz, (9th Cir. 262 F.3d 2001). ruling legality 6. A district court’s on a de border search is reviewed novo. United definitively comports cion” and with the Fourth spoken on

it has neither limits, clearly defined the if it violates subject nor Amendment “unless ‘reasonable- Reasonableness, any. ness.’ when used in the search, ‘incapable context of a border Flores-Montano, in recently, Most or of mechanical comprehensive definition of an which a warrantless border search intrusion, application....’ scope The of the that included the removal and automobile conduct, justifi- the manner of its and the gas tank was held disassembly of the car’s cation for its initiation must all be consid- suspi- the lack of reasonable despite lawful determining ered in whether a search com- cion, the noted that there are “rea- Court ports with reasonableness.” See United support requirement a might sons that Duncan, States v. high- in the case of some level of Cir.1982) (internal omitted). citations ly person digni- intrusive searches — in Duncan and similar discus- statements ty privacy person interests of the be- may in our other sions decisions have been 152, 124 ing searched.” 541 U.S. at S.Ct. superseded Court’s deci- concluded, however, that 1582. It those Flores-Montano, sion in which reversed a carry protect reasons did not over to by our court and made clear that decision Id. In the against of a the search vehicle. showing suspicion” a of “reasonable acknowledged opinion, same Court required simply not because the search that “it be true that some searches of beyond went question “routine” search. property require are so destructive as to determination, not make that We need result,” different but held that the search however, there is no conflict because be- Id. in that case was not so destructive. precedent tween our and the dictates of explic- 1582. The S.Ct. Court Flores-Montano respect to the issues time, itly for the open, left first in this case. “whether, question and under what cir- cumstances, might government’s We decline invitation of the par- deemed ‘unreasonable’ because that, by holding this case to decide ticularly manner in offensive which is border, anything goes. the ac- Given carried out.” Id. at 154 n. in Flores- knowledgments by the (quoting Ramsey, at 618 n. Montano might there be searches 1972). 13, 97 S.Ct. intrusive, destructive, that are so or offen- Montoya United States

Previously, sive that would be deemed unreason- Hernandez, de 531, 541, Amendment, S.Ct. able under the Fourth (1985), L.Ed.2d 381 87 Court holding Montoya de Hernandez that in suspicion held that reasonable was re justify reasonable was needed to quired at and to to detain border a border search and seizure as intrusive as alimentary search the canal of a traveler one, appropriate that it is for us consid- to thought ingested to have balloons filled particular er the circumstances of this with narcotics. But the declined in search. suspicion,

that case to decide “what level of specifically The found that district court any, required if for nonroutine border opened first was and ex- body cavity, or strip, searches such as inspectors amined when involuntary x-ray searches.” Id. at 541 n. conducting currency were an outbound in- 4, 105 3304. S.Ct. operation targeting packages terdiction Flores-Montano, checking for the Philippines, held bound Prior to we Seljan, 5316. See § require that a search does not violations 31 U.S.C. cause, “probable suspi- F.Supp.2d or even at 1079. Based on the rec- warrants 5317(b), ord, clearly § finding provides: purposes that was not errone- which “For ous.7 ensuring compliance require- with the ments of section a customs officer above, requires section 5316 As noted search, may stop and at the border and Treasury report that a be filed with the warrant, vehicle, without a search ves- person “trans- Department whenever sel, aircraft, conveyance, any or other en- transport, or has trans- ports, is about container, velope or other any person and ported” monetary instruments worth more $10,000. provision explicitly entering cov- or departing than The from the United transported way— ers either added); instruments (emphasis States.” Id. see also imported from and into exported both Gomez-Osorio, United States v. “Monetary United States. instruments” (9th Cir.1992). 636, currency. means more than The term is broadly, separate More and from the defined, regulations in authorized under 31 statutory authority particular for the in- 5312(a)(3), § U.S.C. to include: here, spection government the au- has (i) Currency; thority to search at the border “based on (ii) form; in any Traveler’s checks its inherent sovereign authority protect (iii) (includ- All negotiable instruments its territorial integrity.” Torres v. Puerto checks, checks, ing personal business of- Rico, 465, 472-73, 442 U.S. checks, checks, ficial bank cashier’s Flores-Montano, (1979); 61 L.Ed.2d see (as checks, third-party promissory notes 1582; 541 U.S. at Ramsey, S.Ct. term is defined the Uniform Every 431 U.S. at 1972. S.Ct. orders) Code), money and Commercial Congress since the founding govern- our form, that are either in bearer endorsed ment, including Congress first restriction, without made out to a ficti- Amendment, proposed the Fourth “has (for payee purposes tious granted plenary authority the Executive 103.23), or otherwise in such form that conduct routine searches and seizures passes upon delivery; title thereto border, without probable cause or (iv) Incomplete (including instruments warrant, regulate in order to the collection checks, checks, personal business official prevent of duties and to the introduction of checks, checks, bank cashier’s third-par- country.” Montoya contraband into this (as checks, ty promissory notes Hernandez, de 473 U.S. at term is defined in the Uniform Commer- 3304; Ramsey, see orders) Code), money signed cial S.Ct. omitted; payee’s but with the name (v) Securities or stock in bearer form or government’s authority to conduct otherwise such form title thereto justified by border searches is its interest passes upon delivery. regulating persons prop- the flow of 103.11(u)(l). 31 C.F.R. erty government across the border. The in enforcing has an obvious interest section operation The customs interdiction explicitly authorized under 31 U.S.C. 5316. three-judge panel, Seljan panel.

7. Before the con- claim before the en banc He acknowl- inspection tended that the customs was con- edged inspectors that the were authorized un- authority ducted under the 19 U.S.C. 5317(b) open package, the der 31 U.S.C. to 1583, requires which that customs officials argued but that it was nonetheless a violation open have reasonable to sealed en- inspectors the of the Fourth Amendment for velopes mail in outbound carried the U.S. to read the letter. Seljan press Service. did not Postal search, in regard- simply the The concern this case is with Seljan argues authorization, unreasonably was it less of its how far the search went—whether was scope in because it entailed intrusive its scope. agree too intrusive in We with correspondence. reading personal his Sel- Seljan that there was intrusion into his jan objects the search because further to privacy, degree but the of intrusion must that it should have been clear he contends perspective. be viewed in volun- having without agent, to the customs tarily containing the let- gave package letter, package that the FedEx read the in delivery ter to FedEx for to someone currency or other contained no undeclared Philippines, knowledge with it contraband. would have to cross the border and clear expectation customs. The reasonable by The concerns identified Su necessarily for that privacy package was preme present Court are not here. The tempered. When not involve the destruction of search did “highly spoke of intrusive searches” “partic it not conducted in a property, was Flores-Montano, expressly it referred to manner,” ularly offensive and it was not person” “highly intrusive searches of “highly person.” intrusive of the search[] Flores-Montano, 2, 152, “dignity which raised concern based on the 541 U.S. at 154 n. (internal 155-56, quotation privacy person being and interests of the S.Ct. omitted). searched,” marks There was no destruction point and made the package, the property. The first FedEx triggered by concern was not a search of Seljan’s target suppress, motion was person’s vehicle. 541 U.S. delivery pre returned to FedEx for S.Ct. 1582. The reference Flores-Mon- sumably good reached its destination “highly tano to intrusive searches of the the search conducted in order. Nor was person” Montoya followed a discussion of categorized an manner that could be Hernandez, de which involved an actual “particularly Ramsey, 431 offensive.” See person’s body into a physical intrusion Ramsey U.S. at 618 n. 97 S.Ct. 1972. alimentary search the canal. In the latter suggested might that a search case, the Court illustrated its reference to particularly unreasonable “because of the ,by citing “nonroutine border searches” manner in carried offensive which body cavity, strip, “searches such as out,” citing as that were examples searches involuntary x-ray searches.” 473 U.S. at held unreasonable in Kremen v. United 541 n. 105 S.Ct. 3304. The search of States, S.Ct. substantially FedEx (1957) (officers, L.Ed.2d 876 without examples. less intrusive than these warrant, seized entire contents in which in- Cases we have considered of a cabin took the items 200 miles validating border search because of the examined), away to be Im and Go-Bart highly scope intrusive or manner of the States, porting Co. v. United only a limited num- search have dealt with (1931) 75 L.Ed. 374 scenarios, quite ber of none like this one. (Officer falsely claimed to have a search consistent Flores- Most have been general warrant and “made a then highly Montano and involved destructive search, apparently ransacking unlimited property searches of or intrusive searches desk, safe, cases, filing parts and other person. recog- have Even when we of the office. It was a lawless invasion of might be a possibility nized the that there premises general exploratory and a permissible scope limit on the or manner hope search in the that evidence of crime found.”). given of a search—which discussion might nothing There like be by subsequent superseded that here. have been Su-

1003 caselaw, we noted above— We conclude that the customs preme inspection Court as overly here was not limit intrusive. Even as- usually concluded that the we have are suming govern- there limits to the exceeded, consistent with the had not been right packages ment’s to search at the gov conclusion that the Supreme Court’s border, transgressed those limits were not authority to at the bor ernment’s search in this case. and “at its zenith.” Flores- der is broad

Montano, 152, 124 541 U.S. at S.Ct. 1582. envelope containing personal An corre- Ramos-Saenz, In v. 86 F.3d spondence uniquely protected United States is not from (9th 59, Cir.1994), that a search at the border.8 The Supreme we concluded rejected effectively that contention goes beyond the routine border search in Ramsey, when it reversed a holding of “only degree when it reaches the of intru that international D.C. Circuit letter- in present strip body siveness a search or class mail could not opened be without a and that cavity search” the search of 608, search warrant. 431 U.S. at 97 S.Ct. go in that case did not defendant’s shoes 1972. As far as the Fourth Amendment is beyond routine. In the context of vehicle concerned, envelopes mailed are covered searches, accepted possibility we have by exception, just the border search conceivably that a could de search be so envelopes carried on a person traveler’s that it structive would exceed its reason are covered: rejected scope, arguments able but have It argument was conceded oral particular that the limit was exceeded in search, could customs officials without See, e.g., cases. United States v. Hernan warrant, probable cause and without a (9th Cir.2005) dez, 424 F.3d envelopes entering carried an travel- (dismantling panels internal car door er, luggage whether his or on his excessively destructive as to be unreason person.... Surely no different constitu- able); Chaudhry, United States v. apply tional standard should simply be- (9th Cir.2005), F.3d cert. de- envelopes cause the were mailed not nied, critical fact carried. The is that the en- (2006) (concluding L.Ed.2d 540 that ex- velopes cross the border and enter this ploratory drilling during suspicionless ve- country, brought not that are hicle search at the border was done in transportation one mode of rather than “single manner where a reasonable 5/16- entry another. It is their into this coun- inch a hole drilled the bed of [was] try from without it that a makes result- truck”). pickup We have also considered ing search “reasonable.” question of a prolonged whether deten- Id. at upheld We have pursuant suspicionless tion searches of similar items at the border unreasonable, might without particularized suspi- without warrant or finding that it was. See United States Abbouchi, cion. See F.3d Gonzalez-Rincon, 859, 861, 36 F.3d 863-64 (contents package, including of UPS (9th Cir.1994) (holding scope of bor- envelope containing sealed two social secu- der search was reasonable where nervous cards, rity permanent resident alien two arriving from defendant Colombia was de- cards, notes); and handwritten United tained for several hours to monitor States v. Cir. Tsai 2002) (contents expelled bowel movements before she sev- of a traveler’s briefcase cocaine). enty-three containing luggage); Grayson, balloons States v. United Ramsey, potential 8. We do not here consider viola- this search. See 431 U.S. at 623-24 implicated by tion of the First Amendment & n. 97 S.Ct. 1972. Cir.1979) reporting requirements of 31 U.S.C. (pa- to could, simple paper A sheet of pocket). There is pers in a traveler’s shirt negotiable turn to be a in- envelope example, sent via out protect to an no reason strument, mailed, a note in promissory sent such as than one that is FedEx more UPS, inspector form. The could not de- pocket carried in a traveler’s bearer or paper that folded found inside termine across the border. monetary envelope was not a instru- that the customs Seljan argues also actually at what was looking ment without required stop were to their ex inspectors printed there. reading the letter. amination without scrutiny it exceptional Nor did take were authorized to inspectors Even if the inspector letter for the one-page package FedEx and the sealed open the possible to detect unlawful conduct. In he contends envelopes package, within the case, possible pedophilia evidence of this apparent that it have to the should been by glance. ascertained a could be that letter not cur agent was instrument, monetary rency or another agents experience of the customs reading justified per that such no was here is instructive. The team leader for mitted. that operation the interdiction stated “[i]n inspecting packages, Customs [outbound] not whether Flores-

We need decide inspectors adopt approach. a two-tier argument, Montano forecloses this be- First, scan, read, any not documents. Seljan’s argument unpersuasive cause something during gives If their scan them grounds, on other due to the facts of his suspect to reasonable violation that affir- thing, case. For one the statute law, inspectors give closer matively inspectors authorized the customs inspection package.” to the contents of the open envelope, to this Though “scanning” protocol was not 5317(b), does not define the limits U.S.C. 5317(b), required provided under section on border searches under the Fourth protection against overly some intrusive Seljan argued not Amendment. has inspector searches. The who examined suppressed the evidence should be because Seljan’s FedEx that he package testified 5317(b), of a and noth- violation section scanning protocol adhered to the and that been ing appears that statute to have doing the offensive material ini- while so violated in event. has not cited tially became evident: authority under the Fourth Amendment letter, ... opened up A: I the second agents evi- required disregard I and scanned letter activity, dence of other unlawful even if the envelope. the second nothing unlawfulness had to do with trans- monetary Q: you anything during your Did notice porting unreported instruments. scan? Moreover, task inspector’s the customs reading scanning. I I I A: was as was simple. Although here was so bills couple of sentences on caught denominations, small turned out be of there, something eight- about an envelopes both of the within the sealed year-old girl, something about “I parcel first did in fact contain cur- FedEx you,” and a final love there was rency, inspec- for the so there was reason stating sentence at the bottom carefully. In pause tor to and look more addition, many documents addition

currency may qualify “monetary instru- ments,” above, girl’s peanuts ... “little smells like ro- reprinted as the definition ses,” I 15, demonstrates, subject and at that time reread the letter and thus are thoroughly to understand what the let- support We find for our conclu saying. ter was sion from our precedents involving the plain view doctrine. “An example of “scanning,” though His method of it the even reading by necessity, applicability included a few ‘plain words view’ doctrine is not In unreasonable. contrast to the the situation in police which the have a limitation reading correspondence on un- warrant to search a given area for speci 1583(c)(2), § der 19 U.S.C. there is no objects, fied and in the course of the prohibition similar under 31 U.S.C. search come across some other article of 5317(b), which authorized this search. incriminating Coolidge character.” v. New Neither a is there such limitation in the 443, Hampshire, 465, 403 U.S. Supreme Court’s Fourth Amendment (1971) 29 L.Ed.2d 564 (plurality opin cases. ion), abrogated grounds on other recog reasonably cannot expect We by Ewain, nized United States v. 88 F.3d wholly officials sensory abandon their (9th Cir.1996). 689, 693 In United States faculties when conducting inspections un- Bulacan, we observed that warrantless plenary der the authority of a border seizures are constitutional plain under the here, search. theOn facts the customs view doctrine in situations where in “the inspector act contrary objective did not criminating object nature must be Although reasonableness. he was check- immediately apparent and the officer must ing compliance currency declara- right ‘have a lawful object of access to the requirements tion under section he ” (9th Cir.1998) itself.’ 156 F.3d did not need to carefully read letter (quoting California, Horton v. detect possible pedophilia. evidence of 128, 136, 110 L.Ed.2d 112 The letter in the first paragraph suggests (1990)). In that case we noted that “[t]he its author’s possibly illegal proclivities: initial justified intrusion can be by a war “Yes, Honey, I girls you.” like little like rant by recognized or one exceptions inspector was not required to disre- requirement.” warrant (empha Id. saw, gard what he if even it was not what added); sis see also Coolidge, 403 U.S. at he was there to look for. See United (“Where 91 S.Ct. 2022 the initial in Issacs, States v. brings trusion that police plain within Cir.1983). refuse to impose We an un- view of such an article is supported, by not workable and unreasonable constraint on warrant, but one of recognized the nation’s customs officials requiring exceptions eyes requirement, avert their from to the warrant obvious unlawfulness.9 seizure legitimate.”).10 is also context, In a history different it is not surely pressing difficult to our is spe- national imagine imprudent that such an findings constraint cial need” in view of the of the 9/11 travel) consequences: (internal could have disastrous To avoid quo- Commission on terrorist detection, omitted). simply a terrorist could enclose in a tation marks separate envelope sealed within the FedEx device, package plans explosive Bulacan, for an in- regulation 10. In we held a authoriz- attack, structions for an the chemical formula ing administrative searches at the entrance of poison, for some type form of other building, premised protecting federal on could, document that proposed under safety occupants, of its to be unconstitutional rule, qualify only as unsearchable. Not applied only weapons because it was to not law, unsupported narcotics, such a rule under the explosives, it is but also alcohol Cortez-Rocha, unwise. gambling See 394 F.3d at 1123— and devices. 156 F.3d at 973- narcotics, (underscoring “importance po- gambling our 74. Because alcohol and licing juncture posed borders ... which at this devices no immediate threat to the inspection search and as an under 31 examination of der inspector’s

The customs was, envelope 5317(b), unduly the second the letter inside U.S.C. and was unreasonably intrusive in its similarly, not manner. The motion scope intrusive authorized to scope. inspector The was properly by the suppress was denied and the envel- open package the FedEx court, Seljan’s conviction district That meant he had a “law- opes inside it. should be affirmed. object” to the to be right

ful of access

searched, package the FedEx and its i.e. Sentencing III. Horton, contents. See Seljan appeals aspects several of his In the course of that author- S.Ct. 2801. challenges He 240-month sentence. first examination, appropriately he scanned ized Report’s the Presentence recommendation “immediate- the document and noticed the that several counts of the indictment be ly pedophilia. evidence of See apparent” up individually grouped added rather than Bulacan, inspector’s F.3d at 968. The purposes calculating “Multiple for was not unrea- scanning of the document Adjustment” Sentencing under Count Issacs, In this court made clear sonable. argues He that the district Guidelines. permitted view doctrine plain adequately his ad- court did not consider of a written document’s perusal” “brief imposing when sentence. Fi- age vanced inspector was author- contents where the nally, contends that the district court he F.2d ized to examine document. 708 weight to sexual gave past undue his abuse case, inspector at 1370. In this was conviction, thereby criminal elevating his authorized to examine the documents to history category. monetary whether were determine 5317(b). § 31 U.S.C. instruments. See “[a]ppel- It now is established late review is to determine whether the scope and manner of the The reasonable; only a procedural sentence is constrained, letter as the search of the was ly substantively erroneous or unreasonable package when the letter had to be scanned be set States sentence will aside.” United Seljan to determine whether opened was (9th Cir.2008) Carty, v. currency 31 U.S.C. 5316’s had violated (en banc). We conclude con reporting requirements, and the evidence setting his tentions do not warrant sen pedophilia presented itself at that time. tence aside. package’s of the FedEx con The review nothing body an intrusive tents was like A. Grouping Counts a car. dismantling

search or the The package search of the FedEx was reason Seljan court contends the district scope. able in manner and group charges failed to in Count One (attempted engage travel with intent to inspection conclude that We minor) illicit sexual conduct with not unreasonable first FedEx was facility (using Counts Two and Three violate the Fourth Amend- and did not justified foreign ment. as a bor- interstate and commerce entice The search Significantly, building’s occupants, id. at 973-74. the officer's initial See Bulacan, bag regu- distinguished defendant’s under the we our invalidation of search of the dual-purpose administrative search lation that resulted in the seizure of narcotics from Soto-Camacho, F.3d 408 drug paraphernalia was invalid. See id. United States Watson, (9th Cir.1995), legiti- and United States v. at 973-74. Because the search was initiated, (9th Cir.1982), of which mately the Bulacan court concluded 678 F.2d 765 both inapplicable. involved valid border searches. plain that the view doctrine was engage activity). correct, however, a minor to in sexual Even if is he is not entitled to relief. Assuming the group district court declined to these of- first three counts should be consolidated fenses because it concluded that the counts into two groups purposes applying involved different victims with different 3D1.4, only U.S.S.G. this is a net reduc ages.11 tion of one unit. With one unit for Counts Seljan’s claim that some grouping ap- (which below) Six and Seven grouped were propriate may be correct. United States Four, and another for Count the total units (“U.S.S.G.”) Sentencing Guidelines Manual for purposes applying section 3D1.4 is provides section 3D1.2 counts four. This would in still result a four-level “involve the same victim and two or more level, increase offense the same amount acts or transactions by connected a com- imposed by the district court. See objective mon criminal constituting part or § (prescribing 3D1.4 a four-level increase of a common scheme plan” may or units). for three-and-a-half to five There 3D1.2(b) (2002). grouped. U.S.S.G. was no error in calculating the Guidelines alleges Count One attempted range travel with since the result would have been the same either way. intent to engage activity criminal sexual “Em with victims Em” and “Janel.” B. Advanced Age alleges Count Two use of facilities of inter- Seljan argues that foreign state and the district commerce to entice vic- adequately court did not consider his ad tim “Em Em” activity, into sexual age. argument vanced This is meritless. alleges Count Three enticement of victim The district acknowledged court that Sel- Thus, “Janel.” Counts One and Two share jan’s age and health reduced the likelihood victim, a common and Counts One and recidivism, and it Seljan’s addressed Three a different share common victim. 20-year concern that the age sentence at Seljan’s attempted Philip- travel to the 87 was tantamount to life imprisonment. One) pines (alleged in pack- Count and the The district court even considered the sen ages seeking sent to the victims to entice tence that a prior defendant without a activity them into illicit sexual (alleged in Indeed, conviction would receive. the sen Three) arguably Counts Two and involve imposed by tence the district court 22was the same composite harm to each minor months below the low end of the Guide victim and by are connected a common Seljan lines range. argues only that the objective plan. criminal or See U.S.S.G. reduction greater. should have been even Thus, § 3D1.2 cmt. n. 4. be appro- record, however, On this the district priate to combine the three counts into two court’s sentence was reasonable.

groups: one against for the conduct Seljan’s C. Prior Conviction Effect Two, victim common to Counts One and and the other for against conduct the vic- Finally, Seljan argues that the district tim common to Counts One and Three.12 gave weight court too much to the Guide- Sentencing 11. government Guidelines Manual section It does not matter that the separate allegations multiple 3D1.4 failed to in Count accounts for offenses at sen- One, victims, sepa which names two into two tencing by imposing an offense level enhance- Calozza, rate counts. See United States v. ment, depends weight- the size of which aon 1997) (holding F.3d Cir. grouped ed sum of counts and individual purpose grouping provisions is to counts. See U.S.S.G. 3D1.4. prevent prosecutors enhancing from sen by manipulating charged). tences the counts

100 also hold that the sentence history catego- dence. We a criminal applying lines section court to Guidelines on the district ry pursuant imposed of V 4B1.5(a)(2), sentencing provides for which substantively correct and procedurally [d]angerous [o]ffend- “[rjepeat [s]ex reasonable. er[s][a]gainst [m]inors.” AFFIRMED seriously disputes party No qualifies as conviction 1977 Wisconsin CALLAHAN, Judge, concurring, Circuit under section offense conviction” “sex BEA: joined by Judge Rather, Seljan that because argues 4B1.5. property persons Border searches of or as an history primarily relevant criminal exiting States are entering United recidivism, the district future indicator of under the Fourth per se reasonable the elevated disregarded have court should Amendment. See United States age history category light of his criminal Flores-Montano, 149, 152-53, But of recidivism. and low actual likelihood (2004). 124 158 L.Ed.2d 311 S.Ct. permitted not the court was district Seljan’s package FedEx The search If it had sim- ignore prior the conviction. by virtue of the fact simply reasonable prescription the of section ply disregarded According- it at the border. occurred 4B1.5, require- it have violated the would ly, only question the remains properly court calcu- ment that the district Seljan has shown that the search whether deciding range before late the Guidelines in a package FedEx was conducted of his reasonable. such a sentence is whether Moreover, offensive or was so “particularly manner” at 991. the Carty, 520 F.3d See impact require the as to some level of court did consider destructive it of recidivism after age on his likelihood 124 suspicion. Id. at S.Ct. 1582. adjust- range the Guidelines calculated that he majority agrees Because the has accordingly. Nothing in ed the sentence not, not demand we the Constitution does any tinkering. compels further the record go any separately further. I write be- majority the unwarranted cause the takes IV. Conclusion reasonableness of step examining act hold that customs officials We “scanning” methodology and whether 5317(b) § authority of 31 ing under U.S.C. plain view doc- precedents involving may, equivalent functional at the analysis. ap- an This support trine such border, be search a or container proach place has no in Fourth Amendment border, ing shipped via FedEx across jurisprudence. border search may inspection a warrant. The without other envelopes or include smaller I. objects contained within wrapped or sealed exception The border to the not violate package. The search does enjoyed an “im- Fourth Amendment has simply Amendment because the Fourth pedigree.” historical United pressive scanning personal correspon may entail Villamonte-Marquez, v. 462 U.S. States dence, of contra or because the evidence 579, 585, 77 L.Ed.2d activity criminal that is de band or other (1983) (discussing lineage of U.S.C. may relate to the interdiction of tected 1581). nation, of our Since the birth currency. unreasonably To undeclared pursuant to its constitu- Congress acting from search inspectors constrain customs — I, 8,§ cl. authority under Article tional obviously incriminating ing seizing foreign Na- regulate Commerce “[t]o and incon imprudent would be materials plenary the Executive granted tions”—has jurispru- Fourth Amendment sistent with (1925)). authority reason, to conduct routine searches at For this the Court protect integ- the border to our territorial has that: stated rity. Montoya United v. de See States persons Routine searches of the and ef- Hernandez, 531, 537, 473 U.S. subject fects entrants are not (1985). 3304, 87 L.Ed.2d 381 The earliest requirement of reasonable suspicion, enacted customs statute First Fed- cause, probable warrant, or and first- Congress proposal eral before its —even may opened class mail be without a war- granted the Fourth officials Amendment — probable rant on less than cause. Auto- “ power authority’ ‘full to enter may motive travelers stopped at fixed vessel, ‘any ship and search in which checkpoints near the border without in- suspect any shall have reason to ..., dividualized and boats on goods, subject wares or merchandise ready inland waters with access to the duty shall be concealed....”’ United sea be hailed and boarded with no 606, 616, Ramsey, States suspicion whatever. (1977) S.Ct. 52 L.Ed.2d (quoting Hernandez, Montoya de 473 U.S. at 31, 1789, July Act of ch. 1 Stat. (internal omitted). 105 S.Ct. 3304 citations 29). It is because this same Congress Based on authority, we have recog- proposed adoption original amend- nized that “there can be no constitutional ments to the Constitution two la- months violation for the border search of ... in- ter, that the has stated “it ternational inspector.” mail body is clear that the members of that did Ani, 390, United States v. 138 F.3d 392 regard not searches and seizures of this (9th Cir.1998). The rationale behind the ‘unreasonable,’ kind as they and are not exception border search has origins its in prohibition embraced within the of the national self-protection, and it ais neces- States, Boyd amendment.” v. United 116 sary protect sovereign- instrument our 616, 623, 524, U.S. 6 S.Ct. 29 L.Ed. 746 ty. “The Government’s in pre- interest (1886), grounds, overruled on other War- venting entry persons the of unwanted and 294, Hayden, den v. 387 U.S. 87 S.Ct. effects is at its zenith at the international (1967). 1642, 18 L.Ed.2d 782 Most recent Flores-Montano, border.” 541 U.S. at ly, Supreme explained the Court has “ 152, 124 Historically, S.Ct. 1582. such ‘searches made at the border ... are powers broad necessary pre- have been reasonable simply virtue of the fact that ” vent the introduction of contraband into they occur at the border.’ Flores-Monta country regulate and to the collection no, 541 124 U.S. S.Ct. 1582 Hernandez, Montoya of duties. See de 616, (quoting Ramsey, 431 U.S. at 539, 473 U.S. at 105 per- S.Ct. 3304.1 At 1972). “faithfully The Court has adhered” haps in history no other time our nation’s position to this that “border searches [are] are border searches as vital to maintaining subject provisions to the warrant of security. Although national our founders the Fourth Amendment and [are]’reason- anticipated could not have the threats we meaning able’ within the of that Amend- 617, later, a Ramsey, ment.” face as nation some two centuries 431 U.S. States, (citing 1972 fit provide Carroll v. United 267 saw to border officers with 132, 153-54, 280, tools, 45 69 unique appli- S.Ct. L.Ed. not seen with domestic doctrine, however, 2006) (applying uphold The border search “is Flores-Montano to searching not limited to cases where the laptop offi- search of the defendant's at the border suspect assuming, cers have reason to argument, the entrant while for the sake of carrying foreign opportunity contraband.” United "ha[d] defendant no to obtain Romm, 990, (9th contraband”). foreign States v. 455 F.3d 997 Cir. 1010 highly of suspicion in the case territorial level of

cations, our nation’s protect person dignity of the intrusive searches integrity. — being person interests of the privacy gener border are at the While carry to ve- simply do not over searched' — reasonable, Court ally se per Id. at 124 S.Ct. 1582. hicles.” ‘whether, and question “open has left possibility did not foreclose the Court circumstances, a border search under what property may of be so certain searches “unreasonable” because deemed might be of they require some level destructive in offensive manner particularly 155-56, 124 1582 ” Id. at S.Ct. suspicion. out.’ Flores-Monta it was carried which removal, disassembly, (holding that no, at 155 n. S.Ct. reassembly tank did not fuel at 618 n. Ramsey, 431 U.S. (quoting have suspicion). We require particularized 1972). the contours Although S.Ct. suspicionless Flores-Montano to applied in an conducted constitutes a search what found that searches of vehicles and well de- may not be “offensive manner” damage to the interi- resulting a search fined, considerations Fourth Amendment vehicle, quarter panel of a see United or a search is con- manner which Cortez-Rivera, States v. on whether the depending ducted differ (9th Cir.2006), slashing of a 1042-43 property. person of a search is contra- spare tire to search for vehicle’s persons, it comes to searches When Cortez-Rocha, band, see States v. United may need some level law enforcement Cir.2005), the F.3d (i.e., highly intrusive search suspicion for panels of a removal of the interior door involuntary x-ray body cavity, strip, Hernandez, vehicle, v. see States United searches). Hernandez, de Montoya In (9th Cir.2005), F.3d suspicion was held that reasonable drilling single of a exploratory 5/16— traveler, detain a who required to truck, see inch hole in the bed of United contraband her suspected smuggling 1053- Chaudhry, F.3d States canal, “beyond the alimentary in a manner (9th Cir.2005), the do not violate Fourth 54 customs search and scope of a routine Amendment. 541, 105 473 at S.Ct. inspection.” U.S. suppression of evi- seeking A defendant (detention for suspected smuggler highly on the dence based destructive seeking a war- hours before almost sixteen in the was conducted manner which search rant). expressly declined to The Court the extent of proving bears the burden of any, if suspicion, decide “what level safety and damage and its effect on the searches for nonroutine border required of a vehicle. Cortez-Riv- operability See body cavity, involuntary or strip, such as era, explained at we 454 F.3d 1041-42. As 4, at 541 n. x-ray searches.” Id. Cortez-Rivera, government in while the 3304. justifying the burden of a typically bears property, When it comes to searches search, fact warrantless open possibility the Court has also left at a vehicle is conducted search of “par in a that a border conducted search determines the reason- ipso facto may violate the ticularly long offensive manner” as there is ableness of the search as See Flores-Monta to the defendant’s damage Fourth Amendment. not excessive no, 2, in n. 124 S.Ct. 1582 The defendant is 541 U.S. at 155 vehicle. Id. 13, extent of at 618 n. to know the (quoting Ramsey, position the best 1972). However, and must damage done to his own vehicle the Court S.Ct. the nature and extent that “the reasons demonstrate Flores-Montano noted of the evi- damage by preponderance requirement of some might support (9th I why Cir.1979); dence. Id. at 1042. see no reason 597 F.2d 1228-29 placed wallet, this same burden should not be on purse traveler’s see Henderson States, Seljan to demonstrate that the search here v. United Cir.1967); damaged destroyed package. his FedEx graphic photographs assert, He does not example, that cus- deemed to be obscene agents, toms shredded of his letters or de- Thirty-Seven see United States v. Photo- stroyed any of his pornographic pictures. graphs, (1971).

Like the I majority, conclude that is L.Ed.2d 822 I see no reason to satisfy unable to the narrow exceptions to treat search of international the border search doctrine. package any FedEx differently.

Seljan instead contends that the search We have also argument foreclosed the of his FedEx unreasonably that there ais First Amendment exception intrusive in scope inspec- because customs to the border search expres- doctrine for personal correspondence tors read his Arnold, con- sive material. In United States v. tained in a envelope letter-sized within the argued the defendant that a suspicionless package. majority out, As the points border search of his laptop computer vio- Supreme Court in Ramsey held that for lated the Fourth Amendment because Fourth Amendment purposes, letters First Amendment principles require a internationally mailed higher are treated the level of when it comes to if same as carried an entering expressive traveler material. 523 F.3d at 944. We luggage person. his or on his Maj. Op. unpersuasive found this adopted (citing Ramsey, 431 U.S. at Fourth position Circuit’s in United States 1972). Ickes, (4th Cir.2005). S.Ct. It is the fact that 393 F.3d 501 See envelope Arnold, mailed crosses the border that 523 F.3d at 948 (stating that the makes a search of that envelope reason- court would “follow the reasoning of ”). able under the Fourth Amendment. See Ickes Rejecting the creation of a First Ramsey, 431 U.S. at 97 S.Ct. 1972. exception Amendment to the border doctrine, Court and this circuit have the Fourth Circuit upheld a variety suspicionless reasoned, “[particularly Ickes in today’s property world, at the border: the search of a security national interests re- laptop computer personal and other quire uncovering communications, elec- terrorist tronic storage devices including inherently a hard which ‘expressive.’ are Follow- stick, computer memory drive and ing see logic [the would defendant’s] create a Arnold, United States v. sanctuary 523 F.3d 946 at expressive the border for all (9th Cir.2008); a United Parcel Service material —even for terrorist plans. This package containing envelope sealed with would undermine the compelling reasons cards, security two permanent social two very that lie at the heart of the border cards, notes, resident alien handwritten search doctrine.” at 393 F.3d 506. The and an identification booklet written in Fourth significant Circuit also noted the Arabic, Abbouchi, see United States v. hardships 502 that inspectors border would Cir.2007); F.3d the con- face if there was a First Amendment ex- tents of a luggage, traveler’s briefcase and ception, require which would them to en- Tsai, see United States v. gage F.3d in the sort of decision-making process (9th Cir.2002); papers Supreme traveler’s Court wished to avoid shirt pocket, see Grayson, United States v. sanctioning expansive border searches.2 2. The Fourth question Circuit also noted that even reach of whether the First Ramsey though Court in did not search Flores-Montano, conducting of a border at the method U.S. (citing

Id. in Fourth place that has no property 1582). 152-54, 124 S.Ct. The fact jurisprudence. Amendment Seljan’s search officer’s The customs not demonstrated has under the was reasonable package FedEx package was conduct- search of his FedEx it oc- simply because Amendment Fourth manner” or in a offensive “particularly ed of the equivalent functional at the curred require some level destructive as to was so Flores-Montano, 541 U.S. at See border. conclusion with which —a 1582; Ramsey, 431 152-58, U.S. Fourth Amend- majority agrees —ends Seljan has failed to at 97 S.Ct. 1972. inquiry. ment of his FedEx that the search demonstrate may place statutory restric- Congress “particularly in a was conducted package the manner in which law enforce- tions on was so destructive manner” or offensive See, e.g., border searches. ment conducts suspicion. The some level require on (placing restrictions 19 U.S.C. con- Seljan’s correspondence fact mail sent via the of international does not alter material expressive tained Service). Postal Customs U.S. I find Accordingly, would analysis. this regula- promulgate Protection Border border, per reason- was se that this search by which setting procedures tions forth Amendment. the Fourth able under See, e.g., conducted. border searches are 145.3(b)-(e) in- (prohibiting

19 C.F.R. opening reading or sealed spectors from II. mail without a international letter class majority ways with the be- part I must consent from the valid search warrant or the Fourth Amendment’s cause sender). however, Constitution, does The require not us to exception does require analyze that we the reason- “scan- reasonableness examine the procedures or of these methods ableness methodology precedents or whether ning” particularly offensive unless allow plain support view doctrine involving searches. See highly destructive border Maj. atOp. 1004-06. approach. See Flores-Montano, 541 U.S. FedEx The search of Examining the border search S.Ct. 1582. simply because it oc- per se reasonable and Border methods used Customs equivalent at the functional curred under the Protection for reasonableness majority’s approach application endorses The Fourth Amendment invites border. and ad hoc complex balancing tests the reasonableness of an ad hoc review of (9th Cir.1991). Supreme Court in P.J. exempts expressive material Amendment searches, subsequent authority application from border "an for a Video commented that Ickes, unlikely. suggests that it is authorizing the seizure of materials warrant in Ickes noted that in New 507. The court protected the First Amend presumptively Video, P.J. York v. under the same ment should be evaluated 1610, (1986), Supreme 89 L.Ed.2d 871 probable cause used to review standard of require higher standard of to Court refused applications generally.” U.S. Id. warrant applications when probable warrant cause for mind, S.Ct. 1610. With this in at involved than that used expressive material is "[g]iven that the Fourth Circuit commented Amendment law. Id. in other areas of Fourth a First reluctance to create the Court’s 1610. Our circuit has also at general princi exception to the Amendment Supreme in P.J. recognized that the Court applications, ples governing we find warrant rejected proposition that a stricter Video excep unlikely favor a similar that it would apply probable should when cause standard Ickes, doctrine.” to the border search tion implicated. values are First Amendment Weber, at 507. 1342 n. 393 F.3d 923 F.2d United States procedures reviews of search that have no wished to avoid in sanctioning expansive place under Constitution. Su- border searches.4 preme already has warned not to Court us III. complex balancing create tests when it Although the property, majority comes to searches of see id. at relies on the cus- inspector’s toms (stating “[cjomplex statutory authority S.Ct. 1582 that to balancing currency tests determine what is a conduct opera- interdiction 5317(b), § ... tion ‘routine’ search of a vehicle have no under 31 I U.S.C. share the vehicles”),3 place in border searches of district court’s conclusion that the search Seljan’s warning by confining we should heed that FedEx package to an address analysis our to whether the search abroad was also statutorily authorized un- in “particularly § conducted offensive man- der 19 U.S.C. 1582. Section 1582 au- excessively ner” or was general destructive. thorizes pack- searches of ages at the border and applicable I majority’s share the sentiment that searches of international mail. See United “impose we must not an unworkable and Taghizadeh, States v. 41 F.3d unreasonable constraint on the nation’s (9th Cir.1994) (en banc). face, On its sec- Maj. Op. at officials[.]” 1005. tion require any 1582 does not particular- Unfortunately, recognizing while the “di- ized to conduct border searches consequences” sastrous result international mail.5 See 19 U.S.C. placing “imprudent on cus- constraint^]” § 1582. inspectors, major- toms see id. at n. ity’s opinion requires pa- now our border prescribes While the Constitution trol engage officers the sort of decision- protections may fall, floor below which making process rather than a ceiling, Congress can provide previously recognized danger 3. We have prepared we placed bomb have at LAX creating balancing new tests when it comes gowill Monday.” off at 10:30 a.m. on See, property. e.g., to border searches of Ar nold, (stating that "Flores- Ani, 5.In United States v. we examined the rejected prior approach using Montano our Protection, fact that Customs and Border analysis an intrusiveness to determine the acting pursuant authority interpret to its property reasonableness promulgated regulations section has border”); Chaudhry, international 424 F.3d at (19 145.3) prohibit inspec- C.F.R. its (rejecting as a result of Flores-Montano opening reading tors from or sealed letter a distinction between "routine” and “nonrou- class mail without a valid search warrant Cortez-Rocha, property); tine” searches of consent from the sender. 138 F.3d at 392. (declining 394 F.3d at 1122 as a result of In Ani we stated that "there can be no con- Flores-Montano to "formulate a new balanc stitutional violation for the border search of ing determining proce test for when a border incoming international mail a customs in- damaging dure is so destructive or so as to ' spector[.]” 138 F.3d at 392. The court as- rights protected by invade the the Fourth sumed, deciding, without the customs Amendment”). inspector violated 19 C.F.R. 145.3 and stat- "[ajbsent ed that a constitutional violation or Although pedophilia may evidence of have congressionally remedy, created violation letter, been obvious from a scan of agency regulation require sup- of an does not protect those who our borders and are (citations pression of evidence.” Id. omit- charged preventing another attack 9/11 ted). regulation This that customs has cho- are faced with from threats individuals much nothing sen to enact reflects more than the sophisticated Seljan. unlikely more than It is agency’s voluntary police Seljan that terrorists would be as decision to itself bold as "unabashedly beyond para- anything in the first above and announcef]” the Constitu- graph coconspirators: Congress requires. of a letter to "The tion or Service, a that is decision Congress Postal U.S. statutory protection.

greater § the by Congress, when made not in 19 U.S.C. should so be has done sent via letter mail international to comes courts. Under Postal Service. States

the United KOZINSKI, dissenting: Judge, Chief 1583(d), inspectors customs 19 U.S.C. via mail sent international may not search guarantees Fourth Amendment The weighing 16 ounces the Postal Service U.S. to be secure right people of the “[t]he made a deliberate Congress has or less. houses, papers, and effects persons, their ” statutory protec- greater provide to choice an papers to is not .... reference The sent correspondence tion for international It accident; a error. it’s not scrivener’s If Postal Service. via the U.S. deep Founders’ concern reflects the priva- of expectation an to maintain wished privacy thoughts of safeguarding the correspondence, of his cy in the contents call freedom of con- might we ideas—what statu- availed himself he have could government. invasion the science—from U.S.C. tory contained protections majority in the my colleagues Because correspondence his and mailed they right very important, as don’t see this Service. through the U.S. Postal every to government the read authorize borders, our that crosses scrap paper of IY. purse, package, pocket whether in majority the because separately I write col- envelope. My concurring suitcase or Executive appreciate to fails all, recognize right this leagues don’t authority given plenary Branch has been to agents free rein and thus give protect to our to border searches conduct they please, for whatever search conduct The Court integrity. Supreme territorial choose, they unless whatever reasons per are se that these recognizes body. invade the destroy property or being a border search Absent reasonable. man- offensive “particularly in a conducted were as concerned But Founders so manner as ner” or in such a the mind as with those with invasions .of require some level as to destructive personal body, property— the home or majority agrees rank why they gave papers equal which is —which for as- place is no was not—there litany. Amendment in the Fourth correspon- scanning sessing whether the today’s opinion and substance sum the Fourth reasonable under dence was independent as an papers that we remove to border it comes Amendment when protection, treat- sphere of constitutional FedEx The search searches. species of effects. ing simply them as by virtue “simply reasonable package was judges as federal our commission Because at the bor- occur[red] fact that[it] blue-pencil words not us does authorize Flores-Montano, at 152- der.” Fathers, I re- Founding written Ramsey, 431 (quoting S.Ct. 1582 dissent. spectfully 1972). The Constitu- U.S. at My colleagues cite various cases Finally, I note require more. tion does not them, none are on ostensibly help but any constitutional that in the absence of Ramsey, which States v. on point. United the delib- Congress has made prohibition, rely, majority and concurrence both statutory provide greater choice erate nearly my colleagues far as go does sent via mail protection for international it. would have What Congress If the U.S. Postal Service. are more envelopes is that no held there for corre- protection to increase

wants border searches than than the immune from other couriers spondence sent via 1015 briefcase, See, any body cavity. containers of size and even a package; e.g., other Flores-Montano, opened 149, can be at the border and kind 541 U.S. 124 S.Ct. 1582, inspected might 311; for contraband that be 158 L.Ed.2d United States v. 606, Cortez-Rocha, (9th concealed inside. 431 U.S. 394 F.3d 1115 Cir. (1977). 2005); Duncan, 52 L.Ed.2d 617 The case United States v. F.2d 693 (9th envelopes involved a search of whose Cir.1982); United States v. Mon contraband, shape suggested and bulk not Hernandez, toya 531, 541, de correspondence. Id. at 97 S.Ct. 1972. (1985). S.Ct. 87 L.Ed.2d But reading anything The case did not involve purpose of all these searches is the inter envelopes, nor it involve an within the did prohibited diction of or dutiable items con effort to obtain evidence of criminal activi- cealed within the crossing ty unconnected to the laws. Using the border. border searches for a Ramsey envelopes treated mailed as ef- purpose unrelated to border control—such simply fects because were containers general prevention as crime a —raises being smuggled searched for items. The wholly different issue. expressly say Court therefore declined Imagine that government the federal de anything government’s authority about the letter, e-mail, every cided to read every 623-24, papers. to read Id. at private 97 every diary, every document that crosses 1972. S.Ct. borders, our in order to increase the over Nor is United States v. Flores-Montano all level of law enforcement investigat any great help. U.S. S.Ct. ing crimes mentioned or documented in (2004). 1582, 158 L.Ed.2d 311 The Court writings. these This would not be an ef general Ramsey reiterated the rule of fact, fort to secure our borders —in there, crossing container the border — would nothing have at all to do with a gas vehicle’s tank —can be searched for borders, except that the evidence would be suspicion, noting possi- contraband without collected there. operation This kind of exceptions unduly ble intrusive very raises different Fourth Amendment “dignity priva- searches that affect the concerns than those the searched,” cy person being interests of the dealt with in Ramsey, Flores-Montano or id. at as well as any of my colleagues the other cases cite. unduly are destructive of very It’s the maneuver we condemned al property, id. at S.Ct. twenty years ago most United States far excep- It’s from clear that this list of $124,570 Currency: using a search certainly tions is exhaustive—it doesn’t (such justified purpose for one airline were, purport to be—but even if it I borders) security protection think having perfect strangers should totally objective (gen achieve unrelated rummage through diary, personal one’s enforcement). eral law 873 F.2d 1240 correspondence, prescriptions medical or Cir.1989). later, years Ten United private seriously other writings would Bulacan, States v. we reiterated that harm “dignity privacy one’s interests.” that[a “courts must take care to ensure suspicionless search is contraband] dealing suspicionless The cases bor- general subverted into a search for evi all intercepting der searches are about crime,” emphasizing dence of the “vast being contraband that is carried across the then; potential for abuse” and intrusion “into the right essentially, there and sure, privacy ordinary they are all container cases. To citizens.” 156 F.3d (9th Cir.1998). Today, the containers take an these ad sometimes unusual tank, tire, gas form—a spare pocket forgotten. or monitions are Seljan’s that Inspector Oliva believed that the officers no doubt can be There letter, more than a Calvin and Hobbes mission as far headed their here saw They viewed cartoon, actually disguised a intercepting contraband: was bearer officers in bomb, dirty as law enforcement the blueprint themselves or for a bond the term, their mis- the and sense of nothing the full initial scan revealed inspector’s of all criminal detecting evidence sion as Rath- any suspicion. such a support all to LeBlanc, supervisory a cus- Tom activity. er, inspector’s the was what raised hackles explain- declaration filed a inspector, toms that the writer of the letter the inference operandi: inspectors’ modus ing the activity in criminal engaged have been in- for Customs protocol is The usual laws. Even his unrelated the customs to for evi- inspect and spectors open to enough to es- thorough read didn’t reveal (such as of a violation of law dence arrest; probable cause or make an tablish amounts of failing to declare certain open up a file on just enough there was to monies), are prohib- articles that or for investigation an of a the writer and start (such weapons of as export ited from to do with nothing crime that had etc). destruction, narcotics, illegal mass investigation control. A similar file Customs inspecting packages, In the us, any one of if opened up could be on approach. a two-tier inspectors adopt or personal we in a letter e-mail put words read, First, scan, any they not docu- ap- suspicions the of some raise faceless their scan something during If ments. paratchik. to suspicion sus- gives them reasonable much of fact government makes the The law, inspectors the pect a violation a agents two-step the customs use inspection to the contents give a closer documents, scanning the procedure —first does package If the package. of the reading my colleagues them—and then or create appear to violate law (My majority take comfort this. suspicion, the reasonable type of a colleagues in the concurrence see it as repackaged are package contents delay, they are to needless as satisfied then returned to is every government agents scrap have read loading for onto the sorting process paper every electronic document airplane. international appropriate borders.) But our two- crosses that fail- it Inspector LeBlanc makes clear step procedure give should us no comfort only example an currency is ure to declare agents at all: else would the How decide inspec- of law” for which of “violation to read? There too which documents are speaks He then are on the lookout. tors time for to agents few and too little them deriving reasonable generally to do every thing read word. The sensible scanning from a “violation of law” if and see some- is to scan document each packages. any documents in the text of out; does, they if it thing suspicious pops Oliva, Inspector who searched thing. read the whole The go back and explicit: more “We package, first was even not, they say in two-step procedure is related to looking anything that’s are computer bug a feature: parlance, of the coun- being shipped out contraband —it’s experienced law enforcement contrary to law.” It enables try anything that’s agents to read the maximum number dealt way inspectors the customs likely yield to evidence of documents Seljan’s package proves further certainly procedure crime. The doesn’t far designed sweep be- reading from whatever keep them currency or yond intercepting contraband read, approval and our want exportation of WMDs. preventing go on light agents for customs green notion buy if one can into the fatuous Even (1963). 373, Mary Q. 20 & through private pa- all Wm. 375 fishing expeditions documents that are pers condemning and electronic colonists hailed the cases the bor- carried across our national major sent or searches as vindication of their ders. personal Schnapper, liberties. 71 Va. 38; Davies, L.Rev. at 876 n. 98 Mich. brings us back to the Fourth

Which L.Rev. at & n. 22. 564-65 papers explicit reference to Amendment’s Found- object an of solicitude. Had the as case, The most famous Entick Car- meant to treat documents like other ers rejected rington, government’s the claim property, they kinds of would have had no power personal of unrestrained to search Pa- specifically papers. reason to refer to “exorbitant,” papers stressing as the own pers personal property are and thus would strong privacy “Papers er’s interest: are have covered the Fourth Amend- been ... property; the owner’s dearest and are reference to effects. What makes ment’s seizure, enduring they so far from they papers special the reason are —and hardly inspection.” an will bear 19 How houses, alongside persons and ef- listed 1029, Eng. Rep. ell’s State Trials 95 807 embody, the ideas ideas fects—is (1765). Because of Entick’s influence on on only by reading can be seized the words Founding generation, the page. in long guide Court has used it as a inter reflects The constitutional text preting the Fourth Amendment. As the Founding generation’s fear and States, explained Boyd v. United agents seizing reading of and government statesman, “every during American our private papers, up by stirred sentiments revolutionary period and as a formative affair of the 1760s. Eric Wilkes nation, undoubtedly familiar with this Schnapper, Unreasonable Searches and freedom, English monument of and consid 869, 71 Papers, Seizures Va. L.Rev. of the true and ultimate expression ered as (1985); Davies, Y. 884-89 see also Thomas sufficiently ... of constitutional law ex Original Amend Recovering the Fourth planatory of what was meant unreason (1999). ment, 547, L.Rev. 98 Mich. 616, able searches and seizures.” 116 U.S. Trying develop a seditious libel case (1885) 29 L.Ed. 746 against opposition leader John Wilkes and grounds by overruled on other Warden v. supporters, government his the British Hayden, 387 U.S. papers seized from the homes of the sus (1967); L.Ed.2d see also Brower v. Davies, pects general on a warrant. County Inyo, and others Mich. L.Rev. at 562. Wilkes (1989). 1378, 103L.Ed.2d 628 S.Ct. sued, and a series of British cases held the Entick and the other Wilkes cases re- illegal English and seizures under very flect a different attitude towards Schnapper, common law. 71 Va. L.Rev. thoughts 912-13. and ideas than that of privacy here, my colleagues who dismiss the read- in Eng- affair unfolded As Wilkes “nothing ing personal correspondence land, the followed it with fervent colonists search,” maj. body op. like an intrusive 1760s newspapers interest: Colonial prevailing party 1006. The Entick and and were filled with accounts of the 1770s commentators on the prominent the most trials; and children were Wilkes towns pri- affair considered Wilkes Wilkes; Liberty” after and named “Wilkes every as intrusive as a papers vate bit n. patriot slogan. became a Id. at 876 & in Entick de- 38; Maier, body plaintiff search. The and Pauline John Wilkes Britain, “worse than the scribed the search as American Disillusionment speech. The au- compared read- undermines freedom Spanish inquisition,” correspondence Egremont ing private a man’s thor the Letter Hali- to come at his secret “racking body his feared that the searches would mean fax Trials 19 Howell’s State thoughts.” amongst “an confidence mankind. end of prominent The most Eng. Rep. upon friendship A restraint severe laid affair, the Wilkes political pamphlet on correspondence, upon and even England and the colo- widely read in both thought.” freedom of Id. at 25. Father of nies, in searches similar described these expressed the same concerns. As Candor terms: allowed, long he as such searches were private papers, Every body has some lamented, enjoy Englishmen “must our any have that he not on account would correspondencies, friendships, papers and lawyer frequently A hath the revealed. pleasure studies ... at the will and of ... clients; of his papers and securities Candor, agents!” inferior Father of su- correspon- of agent, merchant or his described, Story at 59. later in simi- pra, then, can be more excruci- dents. What terms, speech lar the chill on that would torture, ating [government than to have failing protect personal result from cor- agents] ... amuse themselves with the would, respondence. explained, It he letters, memoran- perusal private of all “compel every one in to write self-defence dums, intrigues.... [WJould secrets and his with the even to dearest friends cold kingdom in this rest one gentleman severity formal which he and would bed, in if thought, minute at ease his he opponents write to his wariest or his most family every [was] that ... secret of his Story, implacable Joseph enemies.” Com- subject inspection of a made to the Jurisprudence 251 Equity mentaries on Secretary whole of State’s Office? (Boston, Little, Co., Brown and 13th ed. Candor, Concerning A Father of Letter 1886). Warrants, Libels, Papers, the Seizure of recognized The in Ram- Behaviour; Peace or and Sureties for sey allowing agents to read Proceedings with a to some late View personal correspondence by Majority Them the 54- the Defence of raise a serious First would 1765). ed. London Amendment issue. The Court did not political prominent pamphlet Another only question appli- reach the because the agreed that the searches violated funda- regulations flatly “postal prohib- cable rights, stressing privacy mental inter- ited], circumstances, reading all under papers. Papers people’s est contain correspondence absent search war- information, most the writer ex- personal 623-24, rant.” 97 S.Ct. 1972. silence, not to be plained, up “sealed footnote, majority, in a The declines to broke, heart-strings,” but with their own any potential “consider violation of the rather die” than so that “some men would Maj. op. First Amendment.” at 1003 n. 8. A having papers submit to their searched. Ramsey suggests But these “First the Earls Right Letter to the Honourable highly Amendment considerations” are rel- Halifax, Majesty’s His Egremont and ours, evant in a case like where customs State, Principal on the Sei- Secretaries of a war- agents personal read letters without 1763). (London Has Papers zure suspicion. rant or even reasonable regard privacy pre- our deteriorated so U.S. at 97 S.Ct. 1972. cipitously the time the Founders? since Founding generation The also saw the recognized Founding generation undermining as private papers private papers also seizure of the seizure suspicion. Fa- rant or even founded Worse against self-incrimination. right seizing a complained that yet, by treating ther of Candor these seizures as a trivial a criminal case papers man’s to build annoyance major rather than a intrusion give man making him “would be against thought, my into colleagues our freedom himself, accuse with a against evidence open police the door for across the United Candor, supra, at vengeance.” Father of private papers States to read whatever fall Egremont the Letter to 56. The author of power into their hands. This is the were agreed that the searches Halifax English claimed in government the Wilkes functionally compelled self- same affair; power outraged so that “though incrimination: It could not be colonists; power the Fourth Amend- permitted to bear tongue a man’s against. ment was built to shield us We him, testimony against thoughts his are to birthright very cheaply today. sell this as judgment, produced rise in be prove charge.” A Letter witnesses Halifax, Egremont supra, 20. recognized has these

The

concerns, condemning suspicionless compelled production pri- papers unduly vate as intrusive. United SHIN, Petitioner, YOUNG SUN Doe, States v. v. (1984) (government cannot 79 L.Ed.2d 552 compel production self-incriminating Attorney MUKASEY, Michael B. documents); Importing Co. v. Go-Bart General, Respondent. States, United Nos. 06-74052. (1931) (government cannot 75 L.Ed. 374 general exploratory conduct a search of Appeals, United States Court hope in the that evidence of a crime papers Ninth Circuit. found). my colleagues, they To Argued and Submitted Dec. 2007. nothing. count for Filed Oct. majority’s step

The reluctance to be-

tween Mr. and his well-merited

punishment is understandable. “sexually educating” chil-

long career heinous; regret

dren it’s difficult to is prison. spend

he will the rest of his life high price:

But result comes at a privacy invasions into the

allowing serious Americans, as well

of millions of innocent guilty. previously “narrow” Sutter, exception, United States (9th Cir.2003), now a

340 F.3d 1022

gaping Every envelope containing hole. secrets,

birthday every cards or trade e-

mail, every every diary, laptop that crosses opened

the border can be and its contents by government agents, without a war-

read

Case Details

Case Name: United States v. Seljan

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 23, 2008

Citation: 547 F.3d 993

Docket Number: 05-50236

Court Abbreviation: 9th Cir.