United States v. Steven Baxter ( 2020 )


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  •                                       PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    No. 18-3613
    _____________
    UNITED STATES OF AMERICA,
    Appellant
    v.
    STEVEN BAXTER
    _____________
    On Appeal from the District Court
    of the Virgin Islands
    District Court No. 3-17-cr-00024-001
    District Judge: The Honorable Curtis V. Gomez
    _____________
    Argued December 11, 2019
    Before: SMITH, Chief Judge, McKEE and SHWARTZ,
    Circuit Judges
    (Filed: February 21, 2020)
    John M. Pellettieri            [ARGUED]
    United States Department of Justice
    Appellate Section
    Room 1264
    950 Pennsylvania Avenue, N.W.
    Washington, DC 20004
    Everard E. Potter
    Office of United States Attorney
    5500 Veterans Drive
    United States Courthouse, Suite 260
    St. Thomas, VI 00802
    Counsel for Appellant
    Joseph A. DiRuzzo, III           [ARGUED]
    Daniel Lader
    DiRuzzo & Company
    401 East Las Olas Boulevard
    Suite 1400
    Fort Lauderdale, FL 33301
    Michael L. Sheesley
    P.O. Box 307728
    St. Thomas, VI 00803
    Counsel for Appellee
    2
    _____________________
    OPINION OF THE COURT
    _____________________
    SMITH, Chief Judge.
    Steven Baxter allegedly mailed two packages from
    South Carolina to St. Thomas, United States Virgin
    Islands. Upon arrival in St. Thomas, U.S. Customs and
    Border Protection (CBP) agents opened the packages and
    discovered that they contained guns.           Baxter was
    apprehended and charged with two counts of illegal
    transport of a firearm. During his criminal proceeding, he
    moved to suppress the guns as the fruit of unreasonable
    searches which violated his Fourth Amendment rights.
    The District Court of the Virgin Islands agreed and granted
    the motion to suppress. The Government has appealed.
    For the reasons that follow, we conclude that CBP
    permissibly conducted the searches pursuant to the border-
    search exception to the Fourth Amendment. Because the
    searches did not violate Baxter’s constitutional rights, we
    will vacate the order granting the motion to suppress and
    remand for further proceedings.
    3
    I.
    A.1
    On March 31, 2017, CBP K-9 Officer Joseph Lopez
    was working at the Cyril E. King Airport in St. Thomas
    with his trained and certified canine, Bo. Per his routine
    daily duties, Lopez brought Bo into a cargo plane to
    inspect mail that was incoming to the Virgin Islands (also,
    “the VI”). Bo alerted to a package, signaling in a manner
    indicating the presence of drugs. The package purportedly
    had been sent by Jason Price, whose address was in South
    Carolina, and had been mailed to a Mekelya Meade in St.
    Thomas. It was labeled priority mail and weighed 3
    pounds 2.2 ounces.
    Officer Lopez reported the package to CBP Officer
    Richard Kouns, who removed it from the plane. Officer
    Kouns opened the box and brought out a piece of clothing
    that smelled strongly of marijuana, although no drugs were
    found in the package. When Officer Kouns returned the
    item to the box, a magazine and round of ammunition fell
    to the floor. The officers inspected the package more
    thoroughly and discovered the unassembled parts of a gun.
    A few days later, on April 3, 2017, a postal inspector
    contacted CBP regarding another package which bore the
    1
    The factual background is derived from the testimony
    presented during the June 4, 2018 suppression hearing.
    4
    same names and addresses as the March 31 package.2
    Officers Lopez and Kouns responded to the call and
    procured the package. Because of the addresses and the
    weight of the package,3 Officer Kouns suspected it might
    contain another gun and decided to x-ray it. The x-ray
    revealed items that appeared to be a gun and ammunition.
    Officer Kouns then opened the package and discovered
    what were indeed a gun and ammunition.
    The CBP officers contacted Homeland Security.
    Homeland Security Special Agent Alicia Blyden arranged
    a controlled delivery of the two packages. Authorities
    ultimately apprehended Steven Baxter as the alleged
    sender of the packages, and a grand jury charged him with
    two counts of illegal transport of a firearm under 18 U.S.C.
    § 922(a)(5).
    B.
    Baxter moved to suppress the guns, claiming that
    CBP’s warrantless searches of the two packages violated
    2
    Two packages bearing these names were intercepted on
    April 3, 2017, but for present purposes, only one of the
    two (the package containing a gun) is relevant.
    3
    While the record does not contain information specifying
    its precise weight, the second package weighed more than
    13 ounces.
    5
    his Fourth Amendment rights.4 After a hearing, the
    District Court initially denied suppression with respect to
    the March 31, 2017 search and ordered additional briefing
    as to the April 3, 2017 search. Subsequently, on
    November 26, 2018, the District Court vacated its earlier
    partial denial and issued a detailed forty-two page opinion
    granting the suppression motion in its entirety. United
    States v. Baxter, No. 2017-24, 
    2018 WL 6173880
    (D.V.I.
    Nov. 26, 2018).
    In its opinion, the District Court observed that the
    packages sent from South Carolina to St. Thomas “never
    left United States territory.” 
    Id. at *8.
    The District Court
    4
    Before the District Court, the Government argued that
    Baxter lacked standing to challenge the searches because
    he lacked an expectation of privacy. Under its theory,
    because the packages were sent under the name Jason
    Price, only Price would have a legitimate expectation of
    privacy in the packages. The District Court rejected the
    Government’s claim. On appeal, the Government has not
    pursued the standing issue. The standing inquiry for
    challenging a search under the Fourth Amendment is not
    a jurisdictional matter and therefore can be waived. See
    United States v. Stearn, 
    597 F.3d 540
    , 551 & n.11 (3d Cir.
    2014). Because the Government has waived the issue on
    appeal, we will not consider whether Baxter has standing
    to challenge the searches. See United States v. Joseph, 
    730 F.3d 336
    , 341 (3d Cir. 2013).
    6
    posited that, under the Fourth Amendment, the packages
    “remain protected from a warrantless search unless . . .
    they are transferred to a foreign territory.”5 
    Id. at *7.
    The
    District Court acknowledged that, while the Virgin Islands
    is not a “foreign territory” or a “foreign country,” 
    id. at *7–*9,
    nonetheless “[a]rguably . . . , some type of
    border—or an approximation of one—exists” between the
    mainland United States and the VI for certain customs
    purposes. 
    Id. at *14.
    But it concluded that searches at that
    customs border for purposes of enforcing customs laws are
    less important “than the interest of the United States in
    enforcing its own Constitution.”6 
    Id. 5 The
    District Court observed that an exception applies if
    the warrantless search is conducted by a non-government
    agent, but such an exception is irrelevant to Baxter’s case.
    6
    The United States’ interest in enforcing the Fourth
    Amendment is not typically considered when courts
    consider the balance of rights under the Fourth
    Amendment. Rather, the familiar balancing test weighs
    the Government’s interest in conducting a search versus
    an individual’s interest in being free from a search. See
    Terry v. Ohio, 
    392 U.S. 1
    , 21 (1968) (“[T]here is no ready
    test for determining reasonableness [of a search] other
    than by balancing the need to search (or seize) against the
    invasion which the search (or seizure) entails.” (citation
    omitted)).
    7
    Our Court’s decision in United States v. Hyde, 
    37 F.3d 116
    (3d Cir. 1994), established the applicability of
    the border-search exception to the Fourth Amendment at
    the customs border between the mainland United States
    and the Virgin Islands.7 Because the border-search
    exception permits the Government to conduct warrantless
    7
    Following the Supreme Court’s lead, Hyde framed the
    Government’s power to conduct warrantless border
    searches as an “exception” to the Fourth Amendment’s
    warrant requirement. See, 
    e.g., 37 F.3d at 119
    –20 (citing
    United States v. Montoya de Hernandez, 
    473 U.S. 531
    ,
    537 (1985), United States v. Ramsey, 
    431 U.S. 606
    , 620
    (1977), and United States v. 12 200-Ft. Reels of Film, 
    413 U.S. 123
    , 125 (1973)). Our reading of those cases
    suggests, however, that this is an imperfect locution: a
    border search is not an “exception” carved out from the
    Fourth Amendment’s application, but rather a border
    search is a circumstance in which the Fourth Amendment
    was never intended to apply. See 
    Hyde, 37 F.3d at 119
    (“The inapplicability of the Fourth Amendment to border
    searches was, to the [Ramsey] Court, evident: ‘That
    searches made at the border, pursuant to the long-standing
    right of the sovereign to protect itself by stopping and
    examining persons and property crossing into this country,
    are reasonable simply by virtue of the fact that they occur
    at the border. . . .’” 
    (quoting 431 U.S. at 616
    )).
    Nonetheless, for consistency’s sake, we employ the
    “exception” terminology here.
    8
    searches at the Virgin Islands customs border, the District
    Court had to distinguish Hyde. It did so by relying on the
    direction that the packages were traveling—i.e., from the
    mainland to the Virgin Islands—not from the Virgin
    Islands to the mainland, as was the case in Hyde.
    According to the District Court, 19 U.S.C. § 14678
    authorizes customs inspections of persons and items upon
    entry into the United States, but “[t]he Court is aware of
    no statutory authority authorizing similar inspections of
    persons or items entering the United States Virgin Islands
    8
    Section 1467 provides: “Whenever a vessel from a
    foreign port or place or from a port or place in any
    Territory or possession of the United States arrives at a
    port or place in the United States or the Virgin Islands,
    whether directly or via another port or place in the United
    States or the Virgin Islands, the appropriate customs
    officer for such port or place of arrival may, under such
    regulations as the Secretary of the Treasury may prescribe
    and for the purpose of assuring compliance with any law,
    regulation, or instruction which the Secretary of the
    Treasury or the Customs Service is authorized to enforce,
    cause inspection, examination, and search to be made of
    the persons, baggage, and merchandise discharged or
    unladen from such vessel, whether or not any or all such
    persons, baggage, or merchandise has previously been
    inspected, examined, or searched by officers of the
    customs.”
    9
    from the United States mainland.” Baxter, 
    2018 WL 6173880
    , at *15. In addition, the District Court weighed
    the interests at play and concluded that the balance is
    different than that struck in Hyde. The District Court
    weighed the Government’s interest in conducting the
    searches for customs enforcement purposes against
    individuals’ personal privacy interest in mailed packages
    and determined “that the government’s interest in
    conducting the type of search at issue here is less
    compelling than the government’s interest in conducting
    the searches at issue in Hyde. In addition, the intrusion on
    privacy here is more significant than the intrusion
    presented in Hyde.” 
    Id. at *14
    n.7. Thus, it concluded
    that, when traveling into the Virgin Islands, the personal
    interest prevails, and “the warrantless searches of the
    sealed mail packages in this matter were not reasonable.”
    
    Id. The District
    Court reiterated, “[i]t is axiomatic that
    those things that originate in, and stay within, the territory
    of the United States remain free from border searches.” 
    Id. at *15.
    Accordingly, the District Court granted Baxter’s
    motion to suppress the firearms.
    10
    II.
    A.
    The Government timely appealed. We have
    jurisdiction over the Government’s appeal of the order
    suppressing evidence pursuant to 18 U.S.C. § 3731. We
    review the District Court’s legal conclusions de novo. See
    
    Hyde, 37 F.3d at 118
    .
    B.
    Because we disagree with the District Court’s
    conclusion that Hyde is inapposite, we begin by turning
    our attention to that case. In Hyde, three individuals were
    attempting to board a flight from St. Thomas to Miami,
    Florida. After the individuals were stopped by Customs,
    inspectors conducted pat-downs and discovered cocaine
    taped to their bodies under their clothes. The defendants
    moved to suppress the cocaine as the fruit of
    unconstitutional searches. The District Court granted the
    suppression motions. On appeal, the Government argued
    that the warrantless searches were constitutional under the
    border-search exception to the Fourth Amendment. We
    agreed, concluding that an individual “may be subjected
    to a routine customs search prior to departure in the
    11
    absence of any degree of suspicion that the individual is
    engaged in 
    wrongdoing.” 37 F.3d at 118
    .
    We first acknowledged the general rule that
    “warrantless searches are presumptively unreasonable.”
    
    Id. (quoting Horton
    v. California, 
    496 U.S. 128
    , 133
    (1990)). But we also pointed out that searches at a border
    are, and always have been, a fundamentally different
    category of search. Border searches are one of those
    “limited situations [in which] the government’s interest in
    conducting a search without a warrant outweighs the
    individual’s privacy interest.” 
    Id. As such,
    “searches at a
    border, without probable cause and without a warrant, are
    nonetheless ‘reasonable.’” 
    Id. at 118.
    Indeed, we
    reasoned that going back to our country’s founding, the
    very first Congress—the same Congress that proposed the
    Bill of Rights—specifically authorized warrantless border
    searches for the purpose of collecting customs duties, and
    “did not intend such searches to come within the
    prohibitions of the Fourth Amendment.” 
    Id. at 119.
    We observed in Hyde that the Supreme Court has
    recognized, explained, and reaffirmed the border-search
    exception in several cases. See 
    id. at 119–20
    (citing
    cases). Historically, the Government’s broad power to
    conduct border searches has been necessary to prevent
    smuggling and to prevent prohibited articles from entering
    the country. See United States v. 12 200-Ft. Reels of Super
    8MM Film, 
    413 U.S. 123
    , 125 (1973). Border-search
    12
    jurisprudence demonstrates that the Supreme Court has
    “faithfully adhered to” the view that “border searches were
    not subject to the warrant provisions of the Fourth
    Amendment and were ‘reasonable’ within the meaning of
    that Amendment.” United States v. Ramsey, 
    431 U.S. 606
    ,
    617 (1977). The border-search exception is grounded in
    the sovereign’s right to control “who and what may enter
    the country,” and for that reason, individuals have “limited
    justifiable expectations of privacy” when presenting
    themselves or their mailed parcels for entry at a border.9
    
    Id. at 620,
    623 n.17. Thus, the balance between an
    individual’s lesser expectation of privacy at a border tilts
    more favorably to the Government, which has a
    heightened interest in regulating the collection of duties
    and preventing the entry of contraband. See United States
    v. Montoya de Hernandez, 
    473 U.S. 531
    , 537, 539–40
    (1985).
    We acknowledged in Hyde that the Supreme Court
    has applied the border-search exception only when an
    international boundary “or its functional equivalent”10 is at
    9
    In Ramsey, the Supreme Court concluded that the border-
    search exception applies to mailed letters in the same way
    it applies to individuals. See 
    Ramsey, 431 U.S. at 620
    .
    10
    The “functional equivalent” of an international border
    may, for instance, be an airport, if the airport is the first
    point of landing after a nonstop flight from abroad. Hyde,
    13
    play. 
    Hyde, 37 F.3d at 120
    . The border between the
    United States and the Virgin Islands is neither an
    international boundary nor its functional equivalent, and
    so the Supreme Court’s border-search exception cases did
    not, by themselves, control our decision in Hyde. 
    Id. at 122.
    Nonetheless, we decided that the rationale of the
    Supreme Court’s international border-search cases applies
    with equal force at the customs border that Congress
    established between the mainland United States and the
    Virgin Islands.11 
    Id. 37 F.3d
    at 120 n.2 (citing United States v. Caminos, 
    770 F.2d 361
    , 364 (3d Cir. 1985)).
    11
    The Virgin Islands is an “unincorporated American
    territory.” See Vooys v. Bentley, 
    901 F.3d 172
    , 176 (3d
    Cir. 2018) (en banc). That is, the VI has not been
    “incorporated” into the United States on a path to
    statehood. 
    Id. at 176
    n.10. Because of its unincorporated
    territory status, Congress “has the authority to create a
    border for customs purposes” between the VI and the rest
    of the country. 
    Hyde, 37 F.3d at 121
    . Consistent with that
    authority, in the Tariff Act of 1930 (which remains in
    effect today), Congress specified that the customs territory
    of the United States excludes the Virgin Islands. Id.; see
    19 U.S.C. § 1401(h) (“The term ‘United States’ includes
    all Territories and possessions of the United States except
    the Virgin Islands, American Samoa, Wake Island,
    14
    Like searches at an international border, routine
    warrantless searches at the Virgin Islands customs border
    would serve the United States’ interest in regulating its
    customs system. 
    Id. “Routine warrantless
    border searches
    without probable cause would appear to be as essential to
    the accomplishment of the objects of that customs border
    as similar traditional searches have universally been
    recognized to be to the objectives of traditional customs
    systems at international borders.” 
    Id. And, on
    “the other
    side of the balance,” we observed that individuals at the
    customs border, like at an international border, have a
    lesser privacy expectation than they would within the
    mainland United States. 
    Id. Thus, the
    searches of the
    Hyde defendants were reasonable and did not offend the
    Fourth Amendment. 
    Id. We completed
    our analysis in Hyde with the
    observation that the application of the border-search
    exception at the customs border is consistent with the
    protections of the Fourth Amendment, which apply within
    the territory of the Virgin Islands. See Revised Organic
    Act of 1954, 48 U.S.C. § 1561 (“The right to be secure
    against unreasonable searches and seizures shall not be
    violated. No warrant for arrest or search shall issue, but
    upon probable cause, supported by oath or affirmation,
    and particularly describing the place to be searched and
    Midway Islands, Kingman Reef, Johnston Island, and the
    island of Guam.”).
    15
    the persons or things to be seized.”). The existence of
    Fourth Amendment protections within the Virgin Islands
    does not undermine Congress’s ability to direct that a
    customs border exists between the United States mainland
    and the Virgin Islands and to protect that customs border
    by conducting searches that are “essential to the effective
    surveillance of the customs border and to the efficient
    collection of the duties Congress had imposed.” 
    Hyde, 37 F.3d at 123
    .
    In sum, Hyde established that the border-search
    exception to the Fourth Amendment permits routine
    warrantless customs searches at the customs border
    between the mainland United States and the Virgin
    Islands.12 Hyde’s vitality is undiminished today.
    12
    Hyde held that warrantless searches at the customs
    border are constitutionally permissible for the purpose of
    surveillance of that border and collection of customs
    duties. In Baxter’s case, however, it is immaterial whether
    the CBP officers conducted the searches of Baxter’s
    packages for the specific purposes that were discussed in
    Hyde. Rather, as the Supreme Court held in Whren v.
    United States, “[s]ubjective intentions play no role in
    ordinary, probable-cause Fourth Amendment analysis.”
    
    517 U.S. 806
    , 813 (1996). Moreover, although Hyde
    concerned searches of individuals who were crossing the
    customs border, Hyde’s rationale applies to mailed
    packages as well. As the Supreme Court made clear in
    16
    C.
    The routine customs searches of Baxter’s packages
    were reasonable under Hyde unless, as the District Court
    held, it makes a difference that the packages were leaving
    the mainland United States rather than entering into it.13
    Ramsey, as far as the applicability of the border-search
    exception is concerned, there is no distinction between
    persons and mailed items. See 
    Ramsey, 431 U.S. at 620
    (“The critical fact is that the envelopes cross the border
    and enter this country, not that th[ey] are brought in by one
    mode of transportation rather than another. It is their entry
    into this country from without that makes a resulting
    search ‘reasonable.’”).
    13
    Neither party has suggested that CBP’s searches of
    Baxter’s packages qualify as anything other than routine
    customs searches. We are aware that appellate courts have
    held that a customs search that poses a serious invasion of
    privacy and that would offend the average traveler—like a
    body-cavity or strip search—is non-routine and thus
    subject to heightened Fourth Amendment scrutiny. United
    States v. Whitted, 
    541 F.3d 480
    , 485–86 (3d Cir. 2008)
    (collecting cases); United States v. Johnson, 
    991 F.2d 1287
    , 1291 (7th Cir. 1993). The searches of the mailed
    packages here fall far below that level of intrusion.
    Accordingly, there is no need for us to consider what
    constitutional requirements apply to a non-routine
    customs search. See 
    id. (“When a
    border search and
    17
    We conclude that this directional distinction should have
    made no material difference to the District Court’s
    analysis. The border-search exception applies regardless
    of the direction of a border crossing.
    In United States v. Ezeiruaku, 
    936 F.2d 136
    (3d Cir.
    1991), we considered the applicability of the border-
    search exception to searches of luggage traveling across
    the international border out of the United States.
    Specifically, customs inspectors at the Philadelphia
    International Airport conducted a warrantless search of
    Ezeiruaku’s suitcases, which were about to be loaded onto
    an outgoing flight to Frankfurt, Germany.14             The
    inspectors discovered $265,000 of unreported cash in one
    suitcase. Ezeiruaku was charged with one count of
    exporting unreported currency, and he moved to suppress
    the cash as fruit of an unconstitutional search. The District
    Court granted the motion.
    We reversed, rejecting Ezeiruaku’s claim that the
    border-search exception does not apply to articles leaving
    the United States. 
    Id. at 143.
    Consistent with every Court
    of Appeals to have considered the issue, we concluded that
    seizure becomes nonroutine, a customs official needs
    reasonable suspicion to justify it.”).
    14
    Because it was the last point of departure before an
    international flight, the Philadelphia International Airport
    was the functional equivalent of an international border.
    
    Ezeiruaku, 936 F.2d at 139
    .
    18
    “the traditional rationale for the border search exception
    applies as well in the outgoing border search context.”15
    
    Id. Thus, “[b]ecause
    the luggage . . . was at the functional
    equivalent of the border, we [held] that no warrant,
    reasonable suspicion or probable cause was needed to
    justify the search.” 
    Id. Baxter is
    correct in observing that the Supreme
    Court’s border-search cases primarily discuss the United
    States’ interest in protecting its borders from illicit entry
    of persons and goods into the United States. See, e.g.,
    
    Ramsey, 431 U.S. at 620
    . This observation does not,
    however, undermine the policy reasons we took into
    account in Ezeiruaku that justify applying the border-
    search exception to any border crossing, regardless of the
    direction. The United States has an interest in monitoring
    15
    At the time Ezeiruaku was decided, the Second, Fifth,
    Eighth, Ninth, and Eleventh Circuit Courts of Appeals had
    held that the border-search exception applies regardless of
    the direction of the border crossing. See 
    Ezeiruaku, 936 F.2d at 141
    –43. Since then, the First, Fourth, and Sixth
    Circuit Courts of Appeals have joined the consensus. See
    United States v. Boumelhem, 
    339 F.3d 414
    , 422 (6th Cir.
    2003); United States v. Beras, 
    183 F.3d 22
    , 26 (1st Cir.
    1999); United States v. Oriakhi, 
    57 F.3d 1290
    , 1297 (4th
    Cir. 1995). We are aware of no Court of Appeals to have
    reached a contrary conclusion.
    19
    persons and items that exit the country as well as those that
    enter it. 
    Ezeiruaku, 936 F.2d at 143
    .
    Indeed, in both Hyde and Ezeiruaku, we drew
    support for our conclusions based on public policy
    concerns. We recognized in Hyde that the United States
    has an interest in regulating commerce to enforce its
    customs border with the Virgin Islands. See 
    Hyde, 37 F.3d at 122
    . This interest applies to goods and currency both
    entering and leaving the mainland by crossing that
    customs border. Moreover, we observed in Ezeiruaku that
    the Government’s concern with the influx of illicit items
    into the United States, such as drugs or similar contraband,
    gives rise to a parallel interest in monitoring the outflow
    of unreported cash that may be supporting the illegal
    narcotics 
    trade. 936 F.2d at 143
    . So, even though drug
    trade was not at issue in Ezeiruaku’s case, “in an
    environment that sees a massive importation of drugs
    across our borders, . . . [s]trong dictates of public policy
    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.” 
    Id. The United
    States has similar interests at the Virgin Islands customs
    border.16
    16
    Indeed, the United States has an additional interest in
    protecting its territories from the entry of illicit items like
    drugs and guns.
    20
    Thus, under Ezeiruaku, the direction of travel does
    not impact the applicability of the border-search
    exception. The District Court erred in concluding
    otherwise.
    D.
    Apart from his Fourth Amendment claim, Baxter
    also contends that the regulations that authorized the CBP
    officers’ searches of the mailed packages are
    unconstitutional and invalid for failure to comply with the
    Administrative Procedure Act.17 Baxter challenges: (1) 19
    C.F.R. § 145.1, a regulation that defines certain classes of
    mail; (2) 19 C.F.R. § 145.2, which authorizes, inter alia,
    customs examination of “all mail arriving from outside the
    U.S. Virgin Islands which is to be delivered within the
    U.S. Virgin Islands”; and (3) United States Postal Service
    Domestic Mail Manual § 101.6.1, which provides that
    mail weighing over 13 ounces is “priority mail.” When
    considered in tandem, these three regulations authorized
    CBP officers to conduct the customs searches of the two
    packages here.18
    17
    Baxter does not claim that the CBP officers violated any
    applicable statute or regulation in conducting the searches.
    18
    Due to their weight, Baxter’s packages qualified as
    “priority mail,” not “first class mail,” which is described
    in USPS Domestic Mail Manual § 101.6.1, or as “sealed
    letter class mail,” described in 19 C.F.R. § 145.1. By
    21
    Baxter argues that these provisions are invalid for
    three reasons: the regulations (1) were issued in the
    absence of proper notice and comment procedures, 5
    U.S.C. § 553(b), (c); (2) are arbitrary and capricious, 5
    U.S.C. § 706(2)(A); and (3) constitute a violation of the
    nondelegation doctrine. The Government vigorously
    disputes each of these claims.
    Baxter concedes, as he must, that he never presented
    these claims to the District Court, and so the District Court
    was never given the opportunity to consider them. These
    arguments could and should have been presented to the
    District Court in the first instance. Because these issues
    were asserted for the first time on appeal, we deem them
    forfeited and will not consider them. See Gov’t of the V.I.
    v. Rosa, 
    399 F.3d 283
    , 291 (3d Cir. 2005).
    III.
    Border searches “have a unique status in
    constitutional law.” 
    Ezeiruaku, 936 F.2d at 142
    (quoting
    United States v. Vega-Barvo, 
    729 F.2d 1341
    , 1344 (11th
    Cir. 1984)). Indeed, the “longstanding recognition that
    regulation, first class mail and sealed letter class mail are
    subject to heightened requirements prior to customs
    inspection. See 19 C.F.R. § 145.3(b), (e). The packages
    at issue here did not qualify for the benefit of those
    heightened protections and therefore were subject to
    customs inspection under 19 C.F.R. § 145.2.
    22
    searches at our borders without probable cause and
    without a warrant are nonetheless ‘reasonable’ has a
    history as old as the Fourth Amendment itself.” 
    Ramsey, 431 U.S. at 619
    .
    The searches of the two packages here, which
    occurred at the Virgin Islands customs border, were
    routine customs searches that were reasonable under the
    border-search exception to the Fourth Amendment. See
    
    Hyde, 37 F.3d at 122
    ; 
    Ezeiruaku, 936 F.2d at 143
    . Because
    the searches did not violate Baxter’s Fourth Amendment
    rights, the District Court erred by suppressing the fruit of
    those searches. We therefore will vacate the judgment and
    remand the matter to the District Court.
    23