Ninth Circuit Upholds Border Searches of International Mail

The Fourth Amendment's border search doctrine permits customs agents acting without a warrant or particularized suspicion to read letters mailed to overseas addresses, the en banc U.S. Court of Appeals for the Ninth Circuit held Oct. 23 (United States v. Seljan, 9th Cir. (en banc), No. 05-50236, 10/23/08).

Under 19 U.S.C. §1583, customs inspectors are generally required to have reasonable suspicion before opening and reading outbound mail. However, individuals sending more than $10,000 in currency or “negotiable instruments” abroad must file forms declaring that they are doing so, and 19 U.S.C. §5317(b) authorizes inspectors to conduct suspicionless searches for illegally exported currency in “any envelope or other container.”

The opinion by Judge Richard R. Clifton explained that such inspections may reasonably include scanning the contents of letters in express mail packages to make sure the letters are not promissory notes or other negotiable instruments. Any evidence of other crimes revealed during these scans is admissible at trial under the plain-view doctrine, the opinion said.

A customs inspector, exercising his authority under Section 5317(b), opened a FedEx package that the defendant had mailed to the Philippines. Among the items in the package were envelopes containing a $100 bill and a letter. Agency protocol permitted the inspector to open and “scan” the contents of the letter as part of a currency-interdiction inspection. The inspector later testified that when he glanced over some of the comments in the letter he immediately suspected that it contained evidence of pedophilia. A thorough reading of the letter confirmed that the defendant had written a sexually suggestive letter to an 8-year-old girl.

Further investigation resulted in searches of additional packages that the defendant mailed to the Philippines. The evidence uncovered in the investigation was used to convict the defendant of traveling to engage in illicit sexual conduct, producing child pornography, and other offenses.
Reading Mail Not Particularly Offensive.

The Ninth Circuit decided that reading a letter in an express mail package is not a “particularly offensive” way of inspecting for undeclared currency. The defendant had contended that the inspection was unreasonably intrusive in its scope because it entailed reading his personal correspondence. The court, however, stressed that most of the prior cases in which it or the U.S. Supreme Court has expressed concern about the offensiveness of border searches have involved searches of individuals' persons or destruction of their property.

“An envelope containing personal correspondence is not uniquely protected from search at the border,” the court said, citing United States v. Ramsey, 431 U.S. 606 (1977), which held that border searches of international mail do not require probable cause and a warrant. The court also emphasized that the defendant's reasonable expectation of privacy in the letter was “necessarily tempered” when he “voluntarily gave the package containing the letter to FedEx for delivery to someone in the Philippines, with knowledge that it would have to cross the border and clear customs.”

“Even assuming that there are limits to the government's right to search packages at the border, those limits were not transgressed in this case,” it said.

Read full article here. [Brooks Holland]