United States v. Seljan

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-50236
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00232-AHS
JOHN W. SELJAN,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Alicemarie H. Stotler, District Judge, Presiding
Argued and Submitted
March 27, 2008—San Francisco, California
Filed October 23, 2008
Before: Alex Kozinski, Chief Judge, and Pamela A. Rymer,
Barry G. Silverman, M. Margaret McKeown,
Raymond C. Fisher, Johnnie B. Rawlinson,
Richard R. Clifton, Consuelo M. Callahan, Carlos T. Bea,
Milan D. Smith, Jr., and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Clifton;
Concurrence by Judge Callahan;
Dissent by Chief Judge Kozinski
14791
UNITED STATES v. SELJAN 14795
COUNSEL
Jerald Brainin, Los Angeles, California, for defendant-
appellant John W. Seljan.
Michael J. Raphael (argued), Assistant United States Attor-
ney, Los Angeles, California, and Richard Y. Lee, Assistant
United States Attorney, Santa Ana, California, for plaintiff-
appellee United States of America.
OPINION
CLIFTON, Circuit Judge:
John Seljan appeals his conviction and sentence for multi-
ple offenses primarily involving sexual misconduct with
young children in the Philippines. Federal agents investigated
Seljan after customs inspectors, conducting routine searches
at a FedEx facility for unreported currency and other mone-
tary instruments in packages being sent to foreign destina-
tions, discovered sexually suggestive letters in packages sent
by Seljan. Seljan appeals the district court’s denial of his
motion to suppress all evidence resulting from those searches,
primarily contending that the Fourth Amendment prohibited
the inspectors from examining personal correspondence with-
out a warrant, or from doing so after they should have realized
that the document being examined was not a monetary instru-
ment. Seljan also challenges his sentence. We affirm.
I. Facts and Procedural History
Seljan sent packages from Southern California to the Phil-
ippines via FedEx on at least three separate dates: November
20, 2002, August 2, 2003, and September 26, 2003.1 Seljan
1
The facts related here are drawn from the findings of fact entered by
the district court as part of its order denying Seljan’s motion to dismiss.
United States v. Seljan, 328 F. Supp. 2d 1077, 1078-81 (C.D. Cal. 2004).
14796 UNITED STATES v. SELJAN
understood that the packages had to “clear customs” before
leaving the United States. Affixed to each package was an
international air waybill completed and signed by Seljan. A
portion of the form labeled “Required Signature” stated, “Use
of this Air Waybill constitutes your agreement to the Condi-
tions of Contract on the back of this Air Waybill.” These con-
ditions included the following provision: “Right to Inspect.
Your shipment may, at our option or at the request of govern-
mental authorities, be opened and inspected by us or such
authorities at any time.”
FedEx routes international packages sent from Southern
California through the company’s regional hub in Oakland,
California, one of four FedEx regional sorting facilities in the
United States. At that facility, FedEx sorts packages by desti-
nation and places all document-sized packages bound for a
particular country into locked containers. If a package is
inspected by U.S. Customs,2 its agents do the inspection prior
to the placement of the packages into the container. Once
loaded into a container, a package is not removed until it
arrives in the destination country, in this case the Philippines.
When Seljan’s first package passed through the FedEx
facility in Oakland on November 21, 2002, customs inspec-
tors were searching packages bound for the Philippines as part
of an outbound currency interdiction operation. The operation
was aimed at detecting violations of 31 U.S.C. § 5316, which
prohibits export or import of undeclared currency or other
monetary instruments worth more than $10,000. As will be
discussed in more detail below, customs inspectors are autho-
rized under 31 U.S.C. § 5317(b) to open and inspect packages
at the border to enforce that statute.
2
The U.S. Customs Service was reorganized as the Bureau of Customs
and Border Protection in 2003. See Homeland Security Act of 2002, Pub.
L. No. 107-296, § 1502, 116 Stat. 2135, 2308 (codified at 6 U.S.C. § 542);
Department of Homeland Security Reorganization Plan, H.R. Doc. No.
108-32 (2003).
UNITED STATES v. SELJAN 14797
The FedEx package sent by Seljan was opened and exam-
ined as part of that operation. It was found to contain two
envelopes and return address labels for Seljan’s post office
box. The first envelope contained a $100 bill in U.S. currency
and a pamphlet for a hotel in Bangkok. The second contained
a 500 peso note in Philippine currency and a short letter. That
letter was typed on one side of a single sheet of paper, at the
top of which was a cartoon figure. The letter contained sexu-
ally suggestive language and appeared to be addressed to an
eight-year-old girl.3 Customs officials photocopied the pack-
age’s contents before returning it to FedEx for delivery.
3
A photographic reproduction of the letter may be found at 497 F.3d
1035, at 1050, as an appendix to the dissent by Judge Pregerson to the
opinion previously filed by a three-judge panel of this court. The text of
the letter reads as follows (grammar and spelling errors in original):
My Dear [redacted]:
I received your letter, but you did not date your letter. Yes,
Honey, I like little girls like you, but you did not send me a pic-
ture of your-self.
I wonder who helped you write that letter to me. For only 8 yrs
old, you do have a very nice handwritting.
To-day we are sending a large box of many things for the whole
family. In that box is some candy and a special [indiscernible] of
Chocalate for you and it has your name on the box, so please let
me know that you received this box.
I’m not coming to Manila in December and I’m not sure when
I’ll be coming, But I’ll let you know the date for sure, Coz I do
want to see you, so please send me a picture of your-self in your
next letter. I know at your age that your “PEANUT” smells like
“SWEET” Roses. That box cantens lots of clothes and some
might fit you.
Here’s P500.00 for some extra things that you need.
Now, I’ll wait for your answer real soon.
Lots of Love & more.
Johnnie
All the girls I know call me “JOHNNIE” that keeps me young.
14798 UNITED STATES v. SELJAN
The second package sent by Seljan was intercepted by cus-
toms inspectors at the Oakland facility on August 3, 2003,
during another outbound currency operation. This package
contained approximately $200 in U.S. currency, several pages
of adult pornography, and two letters. One letter appeared to
be addressed to the same eight-year-old girl. It was more sex-
ually explicit than the November 2002 letter, as it expressed
Seljan’s desire to engage in sex acts with the girl. The other
letter was addressed to another girl’s mother and stated that
Seljan would be “coming back in September . . . . know
[redacted]’s b-Day is September 21th she’ll be XXXX 9.”
[errors in original] After opening the package and seeing the
pornography and letters, the customs agent alerted his super-
visor, who recognized Seljan’s name from the November
2002 search. Again, the inspectors copied the contents and
allowed FedEx to deliver the package.
An agent of the Bureau of Immigration and Customs
Enforcement began to investigate Seljan. The property man-
ager for Seljan’s former residence and one of Seljan’s former
neighbors both told the agent that Seljan spoke of traveling to
the Philippines to “have sex with kids,” that he showed child
pornography, and that he had bragged about his video and
scrapbook collection of similar materials. The agent deter-
mined that Seljan had traveled to the Philippines forty-three
times between 1992 and 2003.
Customs inspectors at the Oakland facility stopped and
searched Seljan’s third FedEx package on September 27,
2003. This package contained nine photocopied letters, $100
in U.S. currency, non-pornographic photos of Seljan with
minors, and adult pornography. The letters described Seljan’s
desire to engage in sex acts with the children to whom the let-
ters were addressed. One letter was addressed to the recipient
of the November 2002 letter. The inspectors copied the con-
tents but, this time, withheld the package from delivery.
Seljan arrived at Los Angeles International Airport and
checked baggage for a flight to Manila on October 3, 2003.
UNITED STATES v. SELJAN 14799
Customs agents stopped him before he boarded the plane. The
agents searched his luggage, discovering adult pornographic
magazines, a book of child pornography, letters written by
Seljan, and fifty-two photographs of Seljan engaged in sex
acts with Filipino children.
Seljan signed a Miranda waiver and made several incrimi-
nating statements. He said he had been “sexually educating”
children for about twenty years, that the children’s ages
ranged from eight to thirteen, and that he intended to “sexu-
ally educate” children on the trip he was there that day to
take. He was not allowed to depart on that trip, however, and
was placed under arrest. After his arrest, customs agents exe-
cuted a search warrant at his residence and discovered adult
pornography, a fiction book about pedophilia and incest, a
typewriter, and various business and travel documents.
Seljan subsequently filed a motion to suppress all evidence
discovered as a result of the searches of his FedEx packages.
He argued that the warrantless search of these packages did
not fall under any exception to the Fourth Amendment’s war-
rant requirement. At a minimum, he asserted, these were “ex-
tended border searches” that must be supported by reasonable
suspicion. Seljan also contended that the scope of the package
searches was unreasonable.
Following an evidentiary hearing, the district court denied
Seljan’s motion to suppress. The district court held that
inspections at the Oakland facility were “tantamount to an
inspection at the international border.” Seljan, 328 F. Supp.
2d at 1083. In the alternative, the district court held that Sel-
jan had consented to these searches by agreeing to the condi-
tions on the air waybills, and that the scope and conduct of the
searches were reasonable. Id. at 1085.
At the conclusion of a three-day bench trial, the district
court found Seljan guilty of one count of attempted travel
with intent to engage in illicit sexual conduct in violation of
14800 UNITED STATES v. SELJAN
18 U.S.C. §§ 2423(b) and (e); two counts of use of an inter-
state facility to entice a minor to engage in criminal sexual
acts in violation of 18 U.S.C. § 2422(b); one count of produc-
tion of child pornography in violation of 18 U.S.C. § 2251(a);
and two counts of possession of child pornography in viola-
tion of 18 U.S.C. § 2252A(a)(5)(B).
The district court imposed sentence on March 28, 2005.
Citing the defendant’s age—at the time sentence was
imposed, Seljan was 87 years old—the court sentenced him
to 240 months (20 years) of imprisonment. That duration was
22 months shorter than the low end of the calculated Guide-
lines range.
Seljan filed a timely appeal. A three-judge panel of this
court affirmed, with one judge dissenting in part, regarding
the denial of the motion to suppress. United States v. Seljan,
497 F.3d 1035 (9th Cir. 2007). By a vote of a majority of non-
recused active judges, it was ordered that the case be reheard
en banc and that the three-judge panel opinion not be cited as
precedent. 512 F.3d 1203 (9th Cir. 2008). Upon rehearing, we
affirm the judgment of the district court.4
II. Motion to Suppress
Seljan challenges the district court’s denial of his motion to
suppress all evidence discovered as a result of customs
inspections of the Philippines-bound packages he sent through
FedEx. Seljan focuses on the first search, which occurred on
November 21, 2002. He contends that the customs inspectors
violated his Fourth Amendment rights when they opened the
package and read the enclosed letter without reasonable suspi-
cion that doing so would reveal contraband or uncover evi-
4
Much of this opinion is drawn directly from the per curiam opinion
filed by the three-judge panel, primarily written by Judges Harry Preger-
son and Ronald M. Gould. They were not drawn to serve on this en banc
panel, but their contributions are appreciated.
UNITED STATES v. SELJAN 14801
dence of criminal activity. Seljan challenges the later searches
as tainted fruits of this initial inspection.
The government offers two justifications for the November
2002 search. First, it defends the search as one occurring at
the functional equivalent of the international border, contend-
ing that there are few, if any, limits on the government’s abil-
ity to search at the border and that this search did not run
afoul of any such limitations. Second, the government con-
tends that Seljan consented to the search by signing the FedEx
air waybill.5
[1] The customs search at the Oakland FedEx regional sort-
ing facility took place at the functional equivalent of the bor-
der. United States v. Abbouchi, 502 F.3d 850, 855-56 (9th Cir.
2007). It should, therefore, be analyzed as a border search.6
[2] “The border search doctrine is a narrow exception to the
Fourth Amendment prohibition against warrantless searches
without probable cause.” United States v. Sutter, 340 F.3d
1022, 1025 (9th Cir. 2003). Under this doctrine, customs offi-
cials may conduct searches at the international border to iden-
tify the illegal transportation of contraband or undeclared
articles across the border. See United States v. Alfonso, 759
F.2d 728, 737 (9th Cir. 1985). Such border searches are
grounded in the government’s right to protect the nation’s ter-
ritorial integrity by examining persons and property entering
and leaving the country. United States v. Flores-Montano,
541 U.S. 149, 152-53 (2004); see also United States v.
Cortez-Rocha, 394 F.3d 1115, 1118-19 (9th Cir.), cert.
5
Because we hold that the border search of the FedEx package was con-
stitutionally valid, we do not reach the alternative ground that Seljan con-
sented to the search.
6
A district court’s ruling on the legality of a border search is reviewed
de novo. United States v. Ani, 138 F.3d 390, 391 (9th Cir. 1998). A district
court’s findings of fact are reviewed for clear error. United States v.
Mendoza-Ortiz, 262 F.3d 882, 885 (9th Cir. 2001).
14802 UNITED STATES v. SELJAN
denied, 126 S. Ct. 105 (2005). Because searches at the inter-
national border of both inbound and outbound persons or
property are conducted “pursuant to the long-standing right of
the sovereign to protect itself,” they generally require neither
a warrant nor individualized suspicion. United States v. Ram-
sey, 431 U.S. 606, 616 (1977); see also Sutter, 340 F.3d at
1025; United States v. Cardona, 769 F.2d 625, 629 (9th Cir.
1985) (“The fact that this case involves an exit search does
not alter our analysis. Since the border search exception
applies to exit searches, there is no principled basis to con-
clude that the extended border search doctrine does not apply
with equal force to exit searches as it does to entry search-
es.”).
The Supreme Court has said that “ ‘searches made at the
border . . . are reasonable simply by virtue of the fact that they
occur at the border.’ ” Flores-Montano, 541 U.S. at 152-53
(quoting Ramsey, 431 U.S. at 616); see also Cortez-Rocha,
394 F.3d at 1118-19. Notwithstanding this broad language,
the Court has also suggested that the Fourth Amendment
might impose some limits on searches at the border, but it has
neither spoken definitively on that subject nor clearly defined
the limits, if any.
Most recently, in Flores-Montano, in which a warrantless
border search of an automobile that included the removal and
disassembly of the car’s gas tank was held lawful despite the
lack of reasonable suspicion, the Court noted that there are
“reasons that might support a requirement of some level of
suspicion in the case of highly intrusive searches of the person
—dignity and privacy interests of the person being searched.”
541 U.S. at 152. It concluded, however, that those reasons did
not carry over to protect against the search of a vehicle. Id. In
the same opinion, the Court acknowledged that “it may be
true that some searches of property are so destructive as to
require a different result,” but held that the search in that case
was not so destructive. Id. at 155-56. The Court explicitly left
open, not for the first time, the question “whether, and under
UNITED STATES v. SELJAN 14803
what circumstances, a border search might be deemed ‘unrea-
sonable’ because of the particularly offensive manner in
which it is carried out.” Id. at 154 n.2 (quoting Ramsey, 431
U.S. at 618 n.13).
Previously, in United States v. Montoya de Hernandez, 473
U.S. 531, 541 (1985), the Court held that reasonable suspicion
was required to detain at the border and to search the alimen-
tary canal of a traveler thought to have ingested balloons
filled with narcotics. But the Court declined in that case to
decide “what level of suspicion, if any, is required for nonrou-
tine border searches such as strip, body cavity, or involuntary
x-ray searches.” Id. at 541 n.4.
Prior to Flores-Montano, we held that a border search does
not require “probable cause, warrants or even suspicion” and
comports with the Fourth Amendment “unless it violates ‘rea-
sonableness.’ Reasonableness, when used in the context of a
border search, is ‘incapable of comprehensive definition or of
mechanical application . . . .’ The scope of the intrusion, the
manner of its conduct, and the justification for its initiation
must all be considered in determining whether a search com-
ports with reasonableness.” See United States v. Duncan, 693
F.2d 971, 977 (9th Cir. 1982) (internal citations omitted). The
statements in Duncan and similar discussions in our other
decisions may have been superseded by the Supreme Court’s
decision in Flores-Montano, which reversed a decision by our
court and made clear that a showing of “reasonable suspicion”
was not required simply because the search in question went
beyond a “routine” search. We need not make that determina-
tion, however, because there is no conflict between our prece-
dent and the dictates of Flores-Montano with respect to the
issues in this case.
[3] We decline the government’s invitation to decide this
case by holding that, at the border, anything goes. Given the
acknowledgments by the Court in Flores-Montano that there
might be searches that are so intrusive, destructive, or offen-
14804 UNITED STATES v. SELJAN
sive that they would be deemed unreasonable under the
Fourth Amendment, and the holding in Montoya de Her-
nandez that reasonable suspicion was needed to justify a bor-
der search and seizure as intrusive as that one, it is appropriate
for us to consider the particular circumstances of this search.
The district court specifically found that Seljan’s first pack-
age was opened and examined by customs inspectors when
they were conducting an outbound currency interdiction oper-
ation targeting packages bound for the Philippines, checking
for violations of 31 U.S.C. § 5316. See Seljan, 328 F. Supp.
2d at 1079. Based on the record, that finding was not clearly
erroneous.7
As noted above, section 5316 requires that a report be filed
with the Treasury Department whenever a person “transports,
is about to transport, or has transported” monetary instru-
ments worth more than $10,000. The provision explicitly cov-
ers instruments transported either way—both exported from
and imported into the United States. “Monetary instruments”
means more than currency. The term is defined, in regulations
authorized under 31 U.S.C. § 5312(a)(3), to include:
(i) Currency;
(ii) Traveler’s checks in any form;
(iii) All negotiable instruments (including personal
checks, business checks, official bank checks, cash-
ier’s checks, third-party checks, promissory notes (as
7
Before the three-judge panel, Seljan contended that the customs inspec-
tion was conducted under the authority of 19 U.S.C. § 1583, which
requires that customs officials have reasonable suspicion to open sealed
envelopes in outbound mail carried by the U.S. Postal Service. Seljan did
not press that claim before the en banc panel. He acknowledged that the
inspectors were authorized under 31 U.S.C. § 5317(b) to open the pack-
age, but argued that it was nonetheless a violation of the Fourth Amend-
ment for the inspectors to read the letter.
UNITED STATES v. SELJAN 14805
that term is defined in the Uniform Commercial
Code), and money orders) that are either in bearer
form, endorsed without restriction, made out to a fic-
titious payee (for the purposes of § 103.23), or other-
wise in such form that title thereto passes upon
delivery;
(iv) Incomplete instruments (including personal
checks, business checks, official bank checks, cash-
ier’s checks, third-party checks, promissory notes (as
that term is defined in the Uniform Commercial
Code), and money orders) signed but with the
payee’s name omitted; and
(v) Securities or stock in bearer form or otherwise in
such form that title thereto passes upon delivery.
31 C.F.R. § 103.11 (u)(1).
[4] The customs interdiction operation was explicitly
authorized under 31 U.S.C. § 5317(b), which provides: “For
purposes of ensuring compliance with the requirements of
section 5316, a customs officer may stop and search, at the
border and without a search warrant, any vehicle, vessel, air-
craft, or other conveyance, any envelope or other container,
and any person entering or departing from the United States.”
Id. (emphasis added); see also United States v. Gomez-
Osorio, 957 F.2d 636, 643 (9th Cir. 1992).
More broadly, and separate from the statutory authority for
the particular inspection here, the government has the author-
ity to search at the border “based on its inherent sovereign
authority to protect its territorial integrity.” Torres v. Puerto
Rico, 442 U.S. 465, 472-73 (1979); see Flores-Montano, 541
U.S. at 152; Ramsey, 431 U.S. at 620. Every Congress since
the founding of our government, including the Congress that
first proposed the Fourth Amendment, “has granted the Exec-
utive plenary authority to conduct routine searches and sei-
14806 UNITED STATES v. SELJAN
zures at the border, without probable cause or a warrant, in
order to regulate the collection of duties and to prevent the
introduction of contraband into this country.” Montoya de
Hernandez, 473 U.S. at 537; see Ramsey, 431 U.S. at 616-19.
The government’s authority to conduct border searches is
justified by its interest in regulating the flow of persons and
property across the border. The government has an obvious
interest in enforcing section 5316.
Seljan argues that the search, regardless of its authorization,
was unreasonably intrusive in its scope because it entailed
reading his personal correspondence. Seljan further objects to
the search because he contends that it should have been clear
to the customs agent, without having to read the letter, that the
FedEx package contained no undeclared currency or other
contraband.
The concerns identified by the Supreme Court are not pres-
ent here. The search did not involve the destruction of prop-
erty, it was not conducted in a “particularly offensive
manner,” and it was not a “highly intrusive search[ ] of the
person.” Flores-Montano, 541 U.S. at 152, 154 n.2, 155-56
(internal quotation marks omitted). There was no destruction
of property. The first FedEx package, the target of Seljan’s
motion to suppress, was returned to FedEx for delivery and
presumably reached its destination in good order. Nor was the
search conducted in an manner that could be categorized as
“particularly offensive.” See Ramsey, 431 U.S. at 618 n.13.
Ramsey suggested that a border search might be unreasonable
“because of the particularly offensive manner in which it is
carried out,” citing as examples searches that were held unrea-
sonable in Kremen v. United States, 353 U.S. 346 (1957)
(officers, without a search warrant, seized the entire contents
of a cabin and took the items 200 miles away to be exam-
ined), and Go-Bart Importing Co. v. United States, 282 U.S.
344, 356-58 (1931) (Officer falsely claimed to have a search
warrant and then “made a general and apparently unlimited
UNITED STATES v. SELJAN 14807
search, ransacking the desk, safe, filing cases, and other parts
of the office. It was a lawless invasion of the premises and a
general exploratory search in the hope that evidence of crime
might be found.”). There was nothing like that here.
The concern in this case is simply with how far the search
went—whether it was too intrusive in scope. We agree with
Seljan that there was intrusion into his privacy, but the degree
of intrusion must be viewed in perspective. Seljan 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. The reasonable
expectation of privacy for that package was necessarily tem-
pered. When the Supreme Court spoke of “highly intrusive
searches” in Flores-Montano, it expressly referred to “highly
intrusive searches of the person” which raised concern based
on the “dignity and privacy interests of the person being
searched,” and made the point that this concern was not trig-
gered by a search of the person’s vehicle. 541 U.S. at 152.
The reference in Flores-Montano to “highly intrusive
searches of the person” followed a discussion of Montoya de
Hernandez, which involved an actual physical intrusion into
a person’s body to search the alimentary canal. In the latter
case, the Court illustrated its reference to “nonroutine border
searches” by citing “searches such as strip, body cavity, or
involuntary x-ray searches.” 473 U.S. at 541 n.4. The search
of Seljan’s FedEx package was substantially less intrusive
than these examples.
[5] Cases in which we have considered invalidating a bor-
der search because of the highly intrusive scope or manner of
the search have dealt with only a limited number of scenarios,
none quite like this one. Most have been consistent with
Flores-Montano and involved highly destructive searches of
property or intrusive searches of the person. Even when we
have recognized the possibility that there might be a limit on
the permissible scope or manner of a given search—which
discussion may have been superseded by subsequent Supreme
14808 UNITED STATES v. SELJAN
Court caselaw, as we noted above—we have usually con-
cluded that the limit had not been exceeded, consistent with
the Supreme Court’s conclusion that the government’s author-
ity to search at the border is broad and “at its zenith.” Flores-
Montano, 541 U.S. at 152. In United States v. Ramos-Saenz,
36 F.3d 59, 61 (9th Cir. 1994), we concluded that a border
search goes beyond the routine “only when it reaches the
degree of intrusiveness present in a strip search or body cavity
search” and that the search of the defendant’s shoes in that
case did not go beyond routine. In the context of vehicle
searches, we have accepted the possibility that a search could
conceivably be so destructive that it would exceed its reason-
able scope, but have rejected arguments that the limit was
exceeded in particular cases. See, e.g., United States v. Her-
nandez, 424 F.3d 1056, 1059 (9th Cir. 2005) (dismantling
internal car door panels not excessively destructive as to be
unreasonable); United States v. Chaudhry, 424 F.3d 1051,
1053 (9th Cir. 2005), cert. denied, 126 S. Ct. 1803 (2006)
(concluding that exploratory drilling during suspicionless
vehicle search at the border was done in reasonable manner
where a “single 5/16-inch hole [was] drilled in the bed of a
pickup truck”). We have also considered the question of
whether a prolonged detention pursuant to a suspicionless
border search might be unreasonable, without finding that it
was. See United States v. Gonzalez-Rincon, 36 F.3d 859, 861,
863-64 (9th Cir. 1994) (holding that scope of border search
was reasonable where nervous defendant arriving from
Colombia was detained for several hours to monitor for bowel
movements before she expelled seventy-three balloons con-
taining cocaine).
We conclude that the customs inspection here was not
overly intrusive. 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.
[6] An envelope containing personal correspondence is not
UNITED STATES v. SELJAN 14809
uniquely protected from search at the border.8 The Supreme
Court effectively rejected that contention in Ramsey, when it
reversed a holding of the D.C. Circuit that international letter-
class mail could not be opened without a search warrant. 431
U.S. at 608. As far as the Fourth Amendment is concerned,
mailed envelopes are covered by the border search exception,
just as envelopes carried on a traveler’s person are covered:
It was conceded at oral argument that customs offi-
cials could search, without probable cause and with-
out a warrant, envelopes carried by an entering
traveler, whether in his luggage or on his person. . . .
Surely no different constitutional standard should
apply simply because the envelopes were mailed not
carried. The critical fact is that the envelopes cross
the border and enter this country, not that they are
brought in by one mode of transportation rather than
another. It is their entry into this country from with-
out it that makes a resulting search “reasonable.”
Id. at 620. We have upheld searches of similar items at the
border without warrant or particularized suspicion. See
Abbouchi, 502 F.3d at 855-56 (contents of a UPS package,
including a sealed envelope containing two social security
cards, two permanent resident alien cards, and handwritten
notes); United States v. Tsai, 282 F.3d 690, 696 (9th Cir.
2002) (contents of a traveler’s briefcase and luggage); United
States v. Grayson, 597 F.2d 1225, 1228-29 (9th Cir. 1979)
(papers in a traveler’s shirt pocket). There is no reason to pro-
tect an envelope sent via FedEx more than one that is mailed,
sent by UPS, or carried in a traveler’s pocket across the bor-
der.
Seljan also argues that the customs inspectors were
required to stop their examination without reading the letter.
8
We do not here consider any potential violation of the First Amend-
ment implicated by this search. See Ramsey, 431 U.S. at 623-24 & n.18.
14810 UNITED STATES v. SELJAN
Even if the inspectors were authorized to open the FedEx
package and the sealed envelopes within the package, he con-
tends that it should have been apparent to the customs agent
that the letter was not currency or another monetary instru-
ment, such that no reading was justified or permitted.
We need not decide whether Flores-Montano forecloses
this argument, because Seljan’s argument is unpersuasive on
other grounds, due to the facts of his case. For one thing, the
statute that affirmatively authorized the customs inspectors to
open this package and envelope, 31 U.S.C. § 5317(b), does
not define the limits on border searches under the Fourth
Amendment. Seljan has not argued that the evidence should
be suppressed because of a violation of section 5317(b), and
nothing in that statute appears to have been violated in any
event. Seljan has not cited authority under the Fourth Amend-
ment that required the agents to disregard evidence of other
unlawful activity, even if the unlawfulness had nothing to do
with transporting unreported monetary instruments.
Moreover, the customs inspector’s task here was not so
simple. Although the bills turned out to be of small denomina-
tions, both of the sealed envelopes within the first FedEx par-
cel did in fact contain currency, so there was reason for the
inspector to pause and look more carefully. In addition, many
documents in addition to currency may qualify as “monetary
instruments,” as the definition reprinted above, at 15, demon-
strates, and thus are subject to the reporting requirements of
31 U.S.C. § 5316. A simple sheet of paper could, for example,
turn out to be a negotiable instrument, such as a promissory
note in bearer form. The inspector could not determine that
the folded paper found inside the envelope was not a mone-
tary instrument without actually looking at what was printed
there.
Nor did it take exceptional scrutiny of Seljan’s one-page
letter for the inspector to detect possible unlawful conduct. In
UNITED STATES v. SELJAN 14811
this case, evidence of possible pedophilia could be ascertained
by a glance.
The experience of the customs agents here is instructive.
The team leader for the interdiction operation stated that “[i]n
inspecting [outbound] packages, Customs inspectors adopt a
two-tier approach. First, they scan, not read, any documents.
If something during their scan gives them reasonable suspi-
cion to suspect a violation of the law, the inspectors give a
closer inspection to the contents of the package.” Though this
“scanning” protocol was not required under section 5317(b),
it provided some protection against overly intrusive searches.
The inspector who examined Seljan’s FedEx package testified
that he adhered to the scanning protocol and that while doing
so the offensive material initially became evident:
A: . . . I opened up the second letter, and I scanned
the letter that was in the second envelope.
Q: Did you notice anything during your scan?
A: I was reading as I was scanning. I caught a cou-
ple of sentences on there, something about an
eight-year-old girl, something about “I love
you,” and there was a final sentence at the bot-
tom stating that . . .
....
. . . “little girl’s peanuts smells like roses,” and
at that time I reread the letter thoroughly to
understand what the letter was saying.
His method of “scanning,” even though it included reading a
few words by necessity, was not unreasonable. In contrast to
the limitation on reading correspondence under 19 U.S.C.
§ 1583(c)(2), there is no similar prohibition under 31 U.S.C.
14812 UNITED STATES v. SELJAN
§ 5317(b), which authorized this search. Neither is there such
a limitation in the Supreme Court’s Fourth Amendment cases.
[7] We cannot reasonably expect customs officials wholly
to abandon their sensory faculties when conducting inspec-
tions under the plenary authority of a border search. On the
facts here, the customs inspector did not act contrary to objec-
tive reasonableness. Although he was checking for compli-
ance with currency declaration requirements under section
5316, he did not need to read the letter carefully to detect evi-
dence of possible pedophilia. The letter in the first paragraph
suggests its author’s possibly illegal proclivities: “Yes,
Honey, I like little girls like you.” The inspector was not
required to disregard what he saw, even if it was not what he
was there to look for. See United States v. Issacs, 708 F.2d
1365, 1369 (9th Cir. 1983). We refuse to impose an unwork-
able and unreasonable constraint on the nation’s customs offi-
cials by requiring that they avert their eyes from obvious
unlawfulness.9
[8] We find support for our conclusion from our precedents
involving the plain view doctrine. “An example of the appli-
cability of the ‘plain view’ doctrine is the situation in which
the police have a warrant to search a given area for specified
objects, and in the course of the search come across some
other article of incriminating character.” Coolidge v. New
Hampshire, 403 U.S. 443, 465 (1971) (plurality opinion),
9
In a different context, it is not difficult to imagine that such an impru-
dent constraint could have disastrous consequences: To avoid detection, a
terrorist could simply enclose in a separate sealed envelope within the
FedEx package plans for an explosive device, instructions for an attack,
the chemical formula for some form of poison, or any other type of docu-
ment that could, under Seljan’s proposed rule, qualify as unsearchable.
Not only is such a rule unsupported under the law, it is unwise. See
Cortez-Rocha, 394 F.3d at 1123-24 (underscoring the “importance of our
policing borders . . . which at this juncture in our history is surely a press-
ing national special need” in view of the findings of the 9/11 Commission
on terrorist travel) (internal quotation marks omitted).
UNITED STATES v. SELJAN 14813
abrogated on other grounds as recognized by United States v.
Ewain, 88 F.3d 689, 693 (9th Cir. 1996). In United States v.
Bulacan, we observed that warrantless seizures are constitu-
tional under the plain view doctrine in situations where “the
incriminating nature of the object must be immediately appar-
ent and the officer must ‘have a lawful right of access to the
object itself.’ ” 156 F.3d 963, 968 (9th Cir. 1998) (quoting
Horton v. California, 496 U.S. 128, 136 (1990)). In that case
we noted that “[t]he initial intrusion can be justified by a war-
rant or by one of the recognized exceptions of the warrant
requirement.” Id. (emphasis added); see also Coolidge, 403
U.S. at 465 (“Where the initial intrusion that brings the police
within plain view of such an article is supported, not by a
warrant, but by one of the recognized exceptions to the war-
rant requirement, the seizure is also legitimate.”).10
The customs inspector’s examination of the letter inside the
second envelope was, similarly, not unreasonably intrusive in
its scope. The inspector was authorized to open the FedEx
package and the envelopes inside it. That meant he had a
“lawful right of access to the object” to be searched, i.e. the
FedEx package and its contents. See Horton, 496 U.S. at 137.
In the course of that authorized examination, he appropriately
scanned the document and noticed the “immediately appar-
ent” evidence of pedophilia. See Bulacan, 156 F.3d at 968.
10
In Bulacan, we held a regulation authorizing administrative searches
at the entrance of a federal building, premised on protecting the safety of
its occupants, to be unconstitutional because it was applied to not only
weapons and explosives, but also narcotics, alcohol and gambling devices.
156 F.3d at 967, 973-74. Because narcotics, alcohol and gambling devices
posed no immediate threat to the building’s occupants, the officer’s initial
search of the defendant’s bag under the regulation that resulted in the sei-
zure of narcotics and drug paraphernalia was invalid. See id. at 973-74.
Because the search was not legitimately initiated, the Bulacan court con-
cluded that the plain view doctrine was inapplicable. See id. at 968-69,
973-74. Significantly, in Bulacan, we distinguished our invalidation of a
dual-purpose administrative search from United States v. Soto-Camacho,
58 F.3d 408 (9th Cir. 1995), and United States v. Watson, 678 F.2d 765
(9th Cir. 1982), both of which involved valid border searches.
14814 UNITED STATES v. SELJAN
The inspector’s scanning of the document was not unreason-
able. In Issacs, this court made clear that the plain view doc-
trine permitted “brief perusal” of a written document’s
contents where the inspector was authorized to examine the
document. 708 F.2d at 1370. In this case, the inspector was
authorized to examine the documents to determine whether
they were monetary instruments. See 31 U.S.C. § 5317(b).
[9] The scope and manner of the search of the letter was
constrained, as the letter had to be scanned when the package
was opened to determine whether Seljan had violated 31
U.S.C. § 5316’s currency reporting requirements, and the evi-
dence of pedophilia presented itself at that time. The review
of the FedEx package’s contents was nothing like an intrusive
body search or the dismantling of a car. The search of the
FedEx package was reasonable in manner and scope.
[10] We conclude that the inspection of the first FedEx
package was not unreasonable and did not violate the Fourth
Amendment. The search was justified as a border search and
as an inspection under 31 U.S.C. § 5317(b), and it was not
unduly intrusive in scope or manner. The motion to suppress
was properly denied by the district court, and Seljan’s convic-
tion should be affirmed.
III. Sentencing
Seljan appeals several aspects of his 240-month sentence.
He first challenges the Presentence Report’s recommendation
that several counts of the indictment be added up individually
rather than grouped for purposes of calculating the “Multiple
Count Adjustment” under the Sentencing Guidelines. He
argues that the district court did not adequately consider his
advanced age when imposing sentence. Finally, he contends
that the district court gave undue weight to his past sexual
abuse conviction, thereby elevating his criminal history cate-
gory.
UNITED STATES v. SELJAN 14815
It is now established that “[a]ppellate review is to deter-
mine whether the sentence is reasonable; only a procedurally
erroneous or substantively unreasonable sentence will be set
aside.” United States v. Carty, 520 F.3d 984, 993 (9th Cir.
2008) (en banc). We conclude that Seljan’s contentions do not
warrant setting his sentence aside.
A. Grouping of Counts
Seljan contends that the district court failed to group the
charges in Count One (attempted travel with intent to engage
in illicit sexual conduct with a minor) and Counts Two and
Three (using a facility of interstate and foreign commerce to
entice a minor to engage in sexual activity). The district court
declined to group these offenses because it concluded that the
counts involved different victims with different ages.11
Seljan’s claim that some grouping is appropriate may be
correct. United States Sentencing Guidelines Manual
(“U.S.S.G.”) section 3D1.2 provides that counts that “involve
the same victim and two or more acts or transactions con-
nected by a common criminal objective or constituting part of
a common scheme or plan” may be grouped. U.S.S.G.
§ 3D1.2(b) (2002). Count One alleges attempted travel with
intent to engage in criminal sexual activity with victims “Em
Em” and “Janel.” Count Two alleges use of facilities of inter-
state and foreign commerce to entice victim “Em Em” into
sexual activity, and Count Three alleges enticement of victim
“Janel.” Thus, Counts One and Two share a common victim,
and Counts One and Three share a different common victim.
Seljan’s attempted travel to the Philippines (alleged in
Count One) and the packages sent to the victims seeking to
11
Sentencing Guidelines Manual section 3D1.4 accounts for multiple
offenses at sentencing by imposing an offense level enhancement, the size
of which depends on a weighted sum of grouped counts and individual
counts. See U.S.S.G. § 3D1.4.
14816 UNITED STATES v. SELJAN
entice them into illicit sexual activity (alleged in Counts Two
and Three) arguably involve the same composite harm to each
minor victim and are connected by a common criminal objec-
tive or plan. See U.S.S.G. § 3D1.2 cmt. n.4. Thus, it may be
appropriate to combine the three counts into two groups: one
for the conduct against the victim common to Counts One and
Two, and the other for conduct against the victim common to
Counts One and Three.12
[11] Even if Seljan is correct, however, he is not entitled to
relief. Assuming the first three counts should be consolidated
into two groups for purposes of applying U.S.S.G. § 3D1.4,
this is only a net reduction of one unit. With one unit for
Counts Six and Seven (which were grouped below) and
another for Count Four, the total units for purposes of apply-
ing section 3D1.4 is four. This would still result in a four-
level increase in offense level, the same amount imposed by
the district court. See § 3D1.4 (prescribing a four-level
increase for three-and-a-half to five units). There was no error
in calculating the Guidelines range since the result would
have been the same either way.
B. Advanced Age
[12] Seljan argues that the district court did not adequately
consider his advanced age. This argument is meritless. The
district court acknowledged that Seljan’s age and health
reduced the likelihood of recidivism, and it addressed Seljan’s
concern that the 20-year sentence at age 87 was tantamount
to life imprisonment. The district court even considered the
sentence that a defendant without a prior conviction would
receive. Indeed, the sentence imposed by the district court
12
It does not matter that the government failed to separate the allega-
tions in Count One, which names two victims, into two separate counts.
See United States v. Calozza, 125 F.3d 687, 689-90 (9th Cir. 1997) (hold-
ing that the purpose of the grouping provisions is to prevent prosecutors
from enhancing sentences by manipulating the counts charged).
UNITED STATES v. SELJAN 14817
was 22 months below the low end of the Guidelines range.
Seljan argues only that the reduction should have been even
greater. On this record, however, the district court’s sentence
was reasonable.
C. Effect of Seljan’s Prior Conviction
[13] Finally, Seljan argues that the district court gave too
much weight to the Guidelines by applying a criminal history
category of V pursuant to Guidelines section 4B1.5(a)(2),
which provides for sentencing of “[r]epeat and [d]angerous
[s]ex [o]ffender[s] [a]gainst [m]inors.”
No party seriously disputes that Seljan’s 1977 Wisconsin
conviction qualifies as a “sex offense conviction” under sec-
tion 4B1.5. Rather, Seljan argues that because criminal his-
tory is primarily relevant as an indicator of future recidivism,
the district court should have disregarded the elevated crimi-
nal history category in light of his age and low actual likeli-
hood of recidivism. But the district court was not permitted to
ignore the prior conviction. If it had simply disregarded the
prescription of section 4B1.5, it would have violated the
requirement that the district court properly calculate the
Guidelines range before deciding whether such a sentence is
reasonable. See Carty, 520 F.3d at 991. Moreover, the court
did consider the impact of Seljan’s age on his likelihood of
recidivism after it calculated the Guidelines range and
adjusted the sentence accordingly. Nothing in the record com-
pels any further tinkering.
IV. Conclusion
[14] We hold that customs officials acting under authority
of 31 U.S.C. § 5317(b) may, at the functional equivalent of
the border, search a package or container being shipped via
FedEx across the border, without a warrant. The inspection
may include smaller envelopes or other wrapped or sealed
objects contained within the package. The search does not
14818 UNITED STATES v. SELJAN
violate the Fourth Amendment simply because it may entail
scanning of personal correspondence, or because the evidence
of contraband or other criminal activity that is detected may
not relate to the interdiction of undeclared currency. To unrea-
sonably constrain customs inspectors from searching and seiz-
ing obviously incriminating materials would be imprudent
and inconsistent with Fourth Amendment jurisprudence. We
also hold that the sentence imposed on Seljan by the district
court was procedurally correct and substantively reasonable.
AFFIRMED
CALLAHAN, Circuit Judge, concurring, joined by Judge
BEA:
Border searches of persons or property entering or exiting
the United States are per se reasonable under the Fourth
Amendment. See United States v. Flores-Montano, 541 U.S.
149, 152-53 (2004). The search of Seljan’s FedEx package
was reasonable simply by virtue of the fact that it occurred at
the border. Accordingly, the only question that remains is
whether Seljan has shown that the search of his FedEx pack-
age was conducted in a “particularly offensive manner” or
was so destructive as to require some level of suspicion. Id.
at 154-56. Because the majority agrees that he has not, the
Constitution does not demand we go any further. I write sepa-
rately because the majority takes the unwarranted step of
examining the reasonableness of the “scanning” methodology
and whether precedents involving the plain view doctrine sup-
port such an analysis. This approach has no place in Fourth
Amendment border search jurisprudence.
I.
The border search exception to the Fourth Amendment has
enjoyed an “impressive historical pedigree.” United States v.
UNITED STATES v. SELJAN 14819
Villamonte-Marquez, 462 U.S. 579, 585 (1983) (discussing
the lineage of 19 U.S.C. § 1581). Since the birth of our nation,
Congress — acting pursuant to its constitutional authority
under Article I, § 8, cl. 3 “[t]o regulate Commerce with for-
eign Nations” — has granted the Executive plenary authority
to conduct routine searches at the border to protect our territo-
rial integrity. See United States v. Montoya de Hernandez,
473 U.S. 531, 537 (1985). The earliest customs statute
enacted by the First Federal Congress — even before its pro-
posal of the Fourth Amendment — granted officials the “ ‘full
power and authority’ to enter and search ‘any ship or vessel,
in which they shall have reason to suspect any goods, wares
or merchandise subject to duty shall be concealed. . . .’ ”
United States v. Ramsey, 431 U.S. 606, 616 (1977) (quoting
Act of July 31, 1789, ch. 5, § 24, 1 Stat. 29). It is because this
same Congress proposed for adoption the original amend-
ments to the Constitution two months later, that the Supreme
Court has stated “it is clear that the members of that body did
not regard searches and seizures of this kind as ‘unreason-
able,’ and they are not embraced within the prohibition of the
amendment.” Boyd v. United States, 116 U.S. 616, 623
(1886), overruled on other grounds, Warden v. Hayden, 387
U.S. 294 (1967). Most recently, the Supreme Court has
explained that “ ‘searches made at the border . . . are reason-
able simply by virtue of the fact that they occur at the bor-
der.’ ” Flores-Montano, 541 U.S. at 152-53 (quoting Ramsey,
431 U.S. at 616). The Court has “faithfully adhered” to this
position that “border searches [are] not subject to the warrant
provisions of the Fourth Amendment and [are] ‘reasonable’
within the meaning of that Amendment.” Ramsey, 431 U.S. at
617 (citing Carroll v. United States, 267 U.S. 132, 153-54
(1925)). For this reason, the Court has stated that:
Routine searches of the persons and effects of
entrants are not subject to any requirement of reason-
able suspicion, probable cause, or warrant, and first-
class mail may be opened without a warrant on less
than probable cause. Automotive travelers may be
14820 UNITED STATES v. SELJAN
stopped at fixed checkpoints near the border without
individualized suspicion . . . , and boats on inland
waters with ready access to the sea may be hailed
and boarded with no suspicion whatever.
Montoya de Hernandez, 473 U.S. at 538 (internal citations
omitted). Based on this authority, we have recognized that
“there can be no constitutional violation for the border search
of . . . international mail by a customs inspector.” United
States v. Ani, 138 F.3d 390, 392 (9th Cir. 1998).
The rationale behind the border search exception has its
origins in national self-protection, and it is a necessary instru-
ment to protect our sovereignty. “The Government’s interest
in preventing the entry of unwanted persons and effects is at
its zenith at the international border.” Flores-Montano, 541
U.S. at 152. Historically, such broad powers have been neces-
sary to prevent the introduction of contraband into this coun-
try and to regulate the collection of duties. See Montoya de
Hernandez, 473 U.S. at 539.1 At perhaps no other time in our
nation’s history are border searches as vital to maintaining
national security. Although our founders could not have antic-
ipated the threats we face as a nation some two centuries later,
they saw fit to provide border officers with unique tools, not
seen with domestic applications, to protect our nation’s terri-
torial integrity.
While searches at the border are generally per se reason-
able, the Supreme Court has left “open the question ‘whether,
and under what circumstances, a border search might be
deemed “unreasonable” because of the particularly offensive
1
The border search doctrine, however, “is not limited to cases where the
searching officers have reason to suspect the entrant may be carrying for-
eign contraband.” United States v. Romm, 455 F.3d 990, 997 (9th Cir.
2006) (applying Flores-Montano to uphold the search of the defendant’s
laptop at the border while assuming, for the sake of argument, the defen-
dant “ha[d] no opportunity to obtain foreign contraband”).
UNITED STATES v. SELJAN 14821
manner in which it was carried out.’ ” Flores-Montano, 541
U.S. at 155 n.2 (quoting Ramsey, 431 U.S. at 618 n.13).
Although the contours of what constitutes a search conducted
in an “offensive manner” may not be well defined, Fourth
Amendment considerations of the manner in which a search
is conducted differ depending on whether the search is of a
person or property.
When it comes to searches of persons, law enforcement
may need some level of suspicion for a highly intrusive search
(i.e., strip, body cavity, involuntary x-ray searches). In Mon-
toya de Hernandez, the Court held that reasonable suspicion
was required to detain a traveler, who was suspected of smug-
gling contraband in her alimentary canal, in a manner “be-
yond the scope of a routine customs search and inspection.”
473 U.S. at 541 (detention of suspected smuggler for almost
sixteen hours before seeking a warrant). The Court expressly
declined to decide “what level of suspicion, if any, is required
for nonroutine border searches such as strip, body cavity, or
involuntary x-ray searches.” Id. at 541 n.4.
When it comes to searches of property, the Court has also
left open the possibility that a border search conducted in a
“particularly offensive manner” may violate the Fourth
Amendment. See Flores-Montano, 541 U.S. at 155 n.2 (quot-
ing Ramsey, 431 U.S. at 618 n.13). However, the Court in
Flores-Montano noted that “the reasons that might support a
requirement of some level of suspicion in the case of highly
intrusive searches of the person — dignity and privacy inter-
ests of the person being searched — simply do not carry over
to vehicles.” Id. at 152. The Court did not foreclose the possi-
bility that certain searches of property may be so destructive
that they require some level of suspicion. Id. at 155-56 (hold-
ing that the removal, disassembly, and reassembly of a fuel
tank did not require particularized suspicion). We have
applied Flores-Montano to suspicionless border searches of
vehicles and found that a search resulting in damage to the
interior quarter panel of a vehicle, see United States v. Cortez-
14822 UNITED STATES v. SELJAN
Rivera, 454 F.3d 1038, 1042-43 (9th Cir. 2006), the slashing
of a vehicle’s spare tire to search for contraband, see United
States v. Cortez-Rocha, 394 F.3d 1115, 1125 (9th Cir. 2005),
the removal of the interior door panels of a vehicle, see
United States v. Hernandez, 424 F.3d 1056, 1059-60 (9th Cir.
2005), and the exploratory drilling of a single 5/16-inch hole
in the bed of a truck, see United States v. Chaudhry, 424 F.3d
1051, 1053-54 (9th Cir. 2005), do not violate the Fourth
Amendment.
A defendant seeking suppression of evidence based on the
highly destructive manner in which the search was conducted
bears the burden of proving the extent of the damage and its
effect on the safety and operability of a vehicle. See Cortez-
Rivera, 454 F.3d at 1041-42. As we explained in Cortez-
Rivera, while the government typically bears the burden of
justifying a warrantless search, the fact that the search of a
vehicle is conducted at the border ipso facto determines the
reasonableness of the search as long as there is not excessive
damage to the defendant’s vehicle. Id. at 1041. The defendant
is in the best position to know the extent of damage done to
his own vehicle and must demonstrate the nature and extent
of this damage by a preponderance of the evidence. Id. at
1042. I see no reason why this same burden should not be
placed on Seljan to demonstrate that the search here damaged
or destroyed his FedEx package. He does not assert, for exam-
ple, that customs shredded any of his letters or destroyed any
of his pornographic pictures. Like the majority, I conclude
that Seljan is unable to satisfy the narrow exceptions to the
border search doctrine.
Seljan instead contends that the search of his FedEx pack-
age was unreasonably intrusive in scope because customs
inspectors read his personal correspondence contained in a
letter-sized envelope within the package. As the majority
points out, the Supreme Court in Ramsey held that for Fourth
Amendment purposes, letters mailed internationally are
treated the same as if carried by an entering traveler in his
UNITED STATES v. SELJAN 14823
luggage or on his person. Maj. Op. at 14804 (citing Ramsey,
431 U.S. at 620). It is the fact that the mailed envelope
crosses the border that makes a search of that envelope rea-
sonable under the Fourth Amendment. See Ramsey, 431 U.S.
at 620. The Supreme Court and this circuit have upheld a vari-
ety of suspicionless searches of property at the border: the
search of a laptop computer and other personal electronic
storage devices including a hard drive and computer memory
stick, see United States v. Arnold, 523 F.3d 941, 946 (9th Cir.
2008); a United Parcel Service package containing a sealed
envelope with two social security cards, two permanent resi-
dent alien cards, handwritten notes, and an identification
booklet written in Arabic, see United States v. Abbouchi, 502
F.3d 850, 855-56 (9th Cir. 2007); the contents of a traveler’s
briefcase and luggage, see United States v. Tsai, 282 F.3d
690, 696 (9th Cir. 2002); papers in a traveler’s shirt pocket,
see United States v. Grayson, 597 F.2d 1225, 1228-29 (9th
Cir. 1979); a traveler’s purse and wallet, see Henderson v.
United States, 390 F.2d 805, 808 (9th Cir. 1967); and graphic
photographs deemed to be obscene by customs agents, see
United States v. Thirty-Seven Photographs, 402 U.S. 363, 376
(1971). I see no reason to treat the search of Seljan’s interna-
tional FedEx package any differently.
We have also foreclosed the argument that there is a First
Amendment exception to the border search doctrine for
expressive material. In United States v. Arnold, the defendant
argued that a suspicionless border search of his laptop com-
puter violated the Fourth Amendment because First Amend-
ment principles require a higher level of suspicion when it
comes to expressive material. 523 F.3d at 944. We found this
unpersuasive and adopted the Fourth Circuit’s position in
United States v. Ickes, 393 F.3d 501 (4th Cir. 2005). See
Arnold, 523 F.3d at 948 (stating that the court would “follow
the reasoning of Ickes”). Rejecting the creation of a First
Amendment exception to the border search doctrine, the
Fourth Circuit in Ickes reasoned, “[p]articularly in today’s
world, national security interests may require uncovering ter-
14824 UNITED STATES v. SELJAN
rorist communications, which are inherently ‘expressive.’ Fol-
lowing [the defendant’s] logic would create a sanctuary at the
border for all expressive material — even for terrorist plans.
This would undermine the compelling reasons that lie at the
very heart of the border search doctrine.” 393 F.3d at 506.
The Fourth Circuit also noted the significant hardships that
border inspectors would face if there was a First Amendment
exception, which would require them to engage in the sort of
decision-making process that the Supreme Court wished to
avoid in sanctioning expansive border searches.2 Id. (citing
Flores-Montano, 541 U.S. at 152-54).
The customs officer’s search of Seljan’s FedEx package
was reasonable under the Fourth Amendment simply because
it occurred at the functional equivalent of the border. See
Flores-Montano, 541 U.S. at 152-53; Ramsey, 431 U.S. at
616. Seljan has failed to demonstrate that the search of his
FedEx package was conducted in a “particularly offensive
manner” or was so destructive as to require some level of sus-
picion. The fact that Seljan’s correspondence contained
2
The Fourth Circuit also noted that even though the Supreme Court in
Ramsey did not reach the question of whether the First Amendment
exempts expressive material from border searches, subsequent authority
suggests that it is unlikely. Ickes, 393 F.3d at 507. The court in Ickes noted
that in New York v. P.J. Video, 475 U.S. 868 (1986), the Supreme Court
refused to require a higher standard of probable cause for warrant applica-
tions when expressive material is involved than that used in other areas of
Fourth Amendment law. Id. at 874. Our circuit has also recognized that
the Supreme Court in P.J. Video rejected the proposition that a stricter
probable cause standard should apply when First Amendment values are
implicated. United States v. Weber, 923 F.2d 1338, 1342 n.6 (9th Cir.
1991). The Supreme Court in P.J. Video commented that “an application
for a warrant authorizing the seizure of materials presumptively protected
by the First Amendment should be evaluated under the same standard of
probable cause used to review warrant applications generally.” 475 U.S.
Id. at 875. With this in mind, the Fourth Circuit commented that “[g]iven
the Court’s reluctance to create a First Amendment exception to the gen-
eral principles governing warrant applications, we find it unlikely that it
would favor a similar exception to the border search doctrine.” Ickes, 393
F.3d at 507.
UNITED STATES v. SELJAN 14825
expressive material does not alter this analysis. Accordingly,
I would find that this border search was per se reasonable
under the Fourth Amendment.
II.
I must part ways with the majority because the Fourth
Amendment’s border search exception does not require us to
examine the reasonableness of the “scanning” methodology or
whether precedents involving the plain view doctrine support
this approach. See Maj. Op. at 14811-13. The search of Sel-
jan’s FedEx package was per se reasonable simply because it
occurred at the functional equivalent of the border. The
majority’s approach endorses an ad hoc review of the reason-
ableness of the method of conducting a border search of prop-
erty that has no place in Fourth Amendment jurisprudence.
The fact that Seljan has not demonstrated that the search of
his FedEx package was conducted in a “particularly offensive
manner” or was so destructive as to require some level of sus-
picion — a conclusion with which the majority agrees — ends
the Fourth Amendment inquiry.
Congress may place statutory restrictions on the manner in
which law enforcement conducts border searches. See, e.g.,
19 U.S.C. § 1583 (placing restrictions on searches of interna-
tional mail sent via the U.S. Postal Service). U.S. Customs
and Border Protection may promulgate regulations setting
forth procedures by which border searches are conducted. See,
e.g., 19 C.F.R. § 145.3(b)-(c) (prohibiting inspectors from
opening or reading sealed international letter class mail with-
out a valid search warrant or consent from the sender). The
Constitution, however, does not require that we analyze the
reasonableness of these methods or procedures unless they
allow for particularly offensive or highly destructive border
searches. See Flores-Montano, 541 U.S. at 154-56. Examin-
ing the border search methods used by Customs and Border
Protection for reasonableness under the Fourth Amendment
invites the application of complex balancing tests and ad hoc
14826 UNITED STATES v. SELJAN
reviews of search procedures that have no place under the
Constitution. The Supreme Court has already warned us not
to create complex balancing tests when it comes to searches
of property, see id. at 152 (stating that “[c]omplex balancing
tests to determine what is a ‘routine’ search of a vehicle . . .
have no place in border searches of vehicles”),3 and we should
heed that warning by confining our analysis to whether the
search was conducted in a “particularly offensive manner” or
was excessively destructive.
I share the majority’s sentiment that we must not “impose
an unworkable and unreasonable constraint on the nation’s
customs officials[.]” Maj. Op. at 14812. Unfortunately, while
recognizing the “disastrous consequences” that may result by
placing “imprudent constraint[s]” on customs inspectors, see
id. at n.8, the majority’s opinion now requires our border
patrol officers engage in the sort of decision-making process
that the Supreme Court wished to avoid in sanctioning expan-
sive border searches.4
3
We have previously recognized the danger of creating new balancing
tests when it comes to border searches of property. See, e.g., Arnold, 523
F.3d at 946 (stating that “Flores-Montano rejected our prior approach of
using an intrusiveness analysis to determine the reasonableness of prop-
erty searches at the international border”); Chaudhry, 424 F.3d at 1054
(rejecting as a result of Flores-Montano a distinction between “routine”
and “nonroutine” searches of property); Cortez-Rocha, 394 F.3d at 1122
(declining as a result of Flores-Montano to “formulate a new balancing
test for determining when a border procedure is so destructive or so dam-
aging as to invade the rights protected by the Fourth Amendment”).
4
Although evidence of pedophilia may have been obvious from a scan
of Seljan’s letter, those who protect our borders and are charged with pre-
venting another 9/11 attack are faced with threats from individuals much
more sophisticated than Seljan. It is unlikely that terrorists would be as
bold as Seljan and “unabashedly announce[ ]” in the first paragraph of a
letter to coconspirators: “The bomb we have prepared and placed at LAX
will go off at 10:30 a.m. on Monday.”
UNITED STATES v. SELJAN 14827
III.
Although the majority relies on the customs inspector’s
statutory authority to conduct the currency interdiction opera-
tion under 31 U.S.C. § 5317(b), I share the district court’s
conclusion that the search of Seljan’s FedEx package to an
address abroad was also statutorily authorized under 19
U.S.C. § 1582. Section 1582 authorizes general border
searches of packages at the border and is applicable to
searches of international mail. See United States v. Tagh-
izadeh, 41 F.3d 1263, 1265 (9th Cir. 1994) (en banc). On its
face, section 1582 does not require any particularized suspi-
cion to conduct border searches of international mail.5 See 19
U.S.C. § 1582.
While the Constitution prescribes the floor below which
protections may not fall, rather than a ceiling, Congress can
provide greater statutory protection. Congress has done so in
19 U.S.C. § 1583 when it comes to international letter mail
sent via the United States Postal Service. Under 19 U.S.C.
§ 1583(d), customs inspectors may not search international
mail sent via the U.S. Postal Service weighing 16 ounces or
less. Congress has made a deliberate choice to provide greater
statutory protection for international correspondence sent via
the U.S. Postal Service. If Seljan wished to maintain an
5
In United States v. Ani, we examined the fact that Customs and Border
Protection, acting pursuant to its authority to interpret section 1582, has
promulgated regulations (19 C.F.R. § 145.3) that prohibit its inspectors
from opening or reading sealed letter class mail without a valid search
warrant or consent from the sender. 138 F.3d at 392. In Ani we stated that
“there can be no constitutional violation for the border search of incoming
international mail by a customs inspector[.]” 138 F.3d at 392. The court
assumed, without deciding, that the customs inspector violated 19 C.F.R.
§ 145.3 and stated that “[a]bsent a constitutional violation or a congressio-
nally created remedy, violation of an agency regulation does not require
suppression of evidence.” Id. (citations omitted). This regulation that cus-
toms has chosen to enact reflects nothing more than the agency’s volun-
tary decision to police itself above and beyond anything that the
Constitution or Congress requires.
14828 UNITED STATES v. SELJAN
expectation of privacy in the contents of his correspondence,
he could have availed himself of the statutory protections con-
tained in 19 U.S.C. § 1583 and mailed his correspondence
through the U.S. Postal Service.
IV.
I write separately because the majority fails to appreciate
that the Executive Branch has been given plenary authority to
conduct border searches to protect our territorial integrity.
The Supreme Court recognizes that these searches are per se
reasonable. Absent a border search being conducted in a “par-
ticularly offensive manner” or in such a manner as to be so
destructive as to require some level of suspicion — which the
majority agrees this search was not — there is no place for
assessing whether the scanning of correspondence was rea-
sonable under the Fourth Amendment when it comes to bor-
der searches. The search of Seljan’s FedEx package was
reasonable “simply by virtue of the fact that [it] occur[red] at
the border.” Flores-Montano, 541 U.S. at 152-53 (quoting
Ramsey, 431 U.S. at 616). The Constitution does not require
more. Finally, I note that in the absence of any constitutional
prohibition, Congress has made the deliberate choice to pro-
vide greater statutory protection for international mail sent via
the U.S. Postal Service. If Congress wants to increase the pro-
tection for correspondence sent via couriers other than the
U.S. Postal Service, that is a decision that should be made by
Congress, not the courts.
KOZINSKI, Chief Judge, dissenting:
The Fourth Amendment guarantees “[t]he right of the peo-
ple to be secure in their persons, houses, papers, and effects
. . . .” The reference to papers is not an accident; it’s not a
scrivener’s error. It reflects the Founders’ deep concern with
safeguarding the privacy of thoughts and ideas—what we
UNITED STATES v. SELJAN 14829
might call freedom of conscience—from invasion by the gov-
ernment. Because my colleagues in the majority don’t see this
right as very important, they authorize the government to read
every scrap of paper that crosses our borders, whether in a
pocket or purse, a package, suitcase or envelope. My concur-
ring colleagues don’t recognize this right at all, and thus give
customs agents free rein to conduct whatever search they
please, for whatever reasons they choose, unless they destroy
property or invade the body.
But the Founders were as concerned with invasions of the
mind as with those of the body, the home or personal property
—which is why they gave papers equal rank in the Fourth
Amendment litany. The sum and substance of today’s opinion
is that we remove papers as an independent sphere of consti-
tutional protection, treating them simply as a species of
effects. Because our commission as federal judges does not
authorize us to blue-pencil words written by the Founding
Fathers, I respectfully dissent.
My colleagues cite various cases that ostensibly help them,
but none are on point. United States v. Ramsey, on which both
the majority and concurrence rely, does not go nearly as far
as my colleagues would have it. What the Supreme Court held
there is that envelopes are no more immune from border
searches than any other package; containers of any size and
kind can be opened at the border and inspected for contraband
that might be concealed inside. 431 U.S. 606 (1977). The case
involved a search of envelopes whose shape and bulk sug-
gested contraband, not correspondence. Id. at 609. The case
did not involve reading anything within the envelopes, nor
did it involve an effort to obtain evidence of criminal activity
unconnected to the customs laws. Ramsey treated mailed
envelopes as effects because they were simply containers
being searched for smuggled items. The Court therefore
expressly declined to say anything about the government’s
authority to read private papers. Id. at 623-24.
14830 UNITED STATES v. SELJAN
Nor is United States v. Flores-Montano of any great help.
541 U.S. 149 (2004). The Court reiterated the general rule of
Ramsey that any container crossing the border—there, a vehi-
cle’s gas tank—can be searched for contraband without suspi-
cion, noting possible exceptions for unduly intrusive searches
that affect the “dignity and privacy interests of the person
being searched,” id. at 152, as well as searches that are unduly
destructive of property, id. at 155-56. It’s far from clear that
this list of exceptions is exhaustive—it certainly doesn’t pur-
port to be—but even if it were, I should think that having per-
fect strangers rummage through one’s diary, personal
correspondence, medical prescriptions or other private writ-
ings would seriously harm one’s “dignity and privacy inter-
ests.”
The cases dealing with suspicionless border searches are all
about intercepting contraband that is being carried across the
border right there and then; essentially, they are all container
cases. To be sure, the containers sometimes take an unusual
form—a gas tank, a spare tire, a pocket or briefcase, even a
body cavity. See, e.g., Flores-Montano, 541 U.S. 149; United
States v. Cortez-Rocha, 394 F.3d 1115 (9th Cir. 2005); United
States v. Duncan, 693 F.2d 971 (9th Cir. 1982); United States
v. Montoya de Hernandez, 473 U.S. 531, 541 (1985). But the
purpose of all these searches is the interdiction of prohibited
or dutiable items concealed within the package that is cross-
ing the border. Using border searches for a purpose unrelated
to border control—such as general crime prevention—raises
a wholly different issue.
Imagine that the federal government decided to read every
letter, every e-mail, every diary, every document that crosses
our borders, in order to increase the overall level of law
enforcement by investigating crimes mentioned or docu-
mented in these writings. This would not be an effort to
secure our borders—in fact, it would have nothing at all to do
with the borders, except that the evidence would be collected
there. This kind of operation raises very different Fourth
UNITED STATES v. SELJAN 14831
Amendment concerns than those the Supreme Court dealt
with in Ramsey, Flores-Montano or any of the other cases my
colleagues cite. It’s the very maneuver we condemned almost
twenty years ago in United States v. $124,570 U.S. Currency:
using a search justified for one purpose (such as airline secur-
ity or protection of the borders) to achieve a totally unrelated
objective (general law enforcement). 873 F.2d 1240 (9th Cir.
1989). Ten years later, in United States v. Bulacan, we reiter-
ated that “courts must take care to ensure that [a suspicionless
contraband] search is not subverted into a general search for
evidence of crime,” emphasizing the “vast potential for
abuse” and intrusion “into the privacy of ordinary citizens.”
156 F.3d 963, 967 (9th Cir. 1998). Today, these admonitions
are forgotten.
There can be no doubt that the officers here saw their mis-
sion as far more than intercepting contraband: They viewed
themselves as law enforcement officers in the full sense of the
term, and their mission as detecting evidence of all criminal
activity. Tom LeBlanc, a supervisory customs inspector, filed
a declaration explaining the inspectors’ modus operandi:
The usual protocol is for Customs inspectors to open
and inspect for evidence of a violation of law (such
as failing to declare certain amounts of monies), or
for articles that are prohibited from export (such as
weapons of mass destruction, illegal narcotics, etc).
In inspecting the packages, Customs inspectors
adopt a two-tier approach. First, they scan, not read,
any documents. If something during their scan gives
them reasonable suspicion to suspect a violation of
law, the inspectors give a closer inspection to the
contents of the package. If the package does not
appear to violate the law or create any type of rea-
sonable suspicion, the contents of the package are re-
packaged and the package is then returned to the
sorting process for loading onto the appropriate
international airplane.
14832 UNITED STATES v. SELJAN
Inspector LeBlanc makes it clear that failure to declare cur-
rency is only an example of a “violation of law” for which the
inspectors are on the lookout. He then speaks generally of
deriving reasonable suspicion of a “violation of law” from
scanning the text of any documents in the packages. Inspector
Oliva, who searched Seljan’s first package, was even more
explicit: “We are looking for anything that’s related to contra-
band being shipped out of the country or anything that’s con-
trary to law.”
The way the customs inspectors dealt with Seljan’s package
further proves that the search was designed to sweep far
beyond intercepting contraband currency or preventing the
exportation of WMDs. Even if one can buy into the fatuous
notion that Inspector Oliva believed that Seljan’s letter,
headed by a Calvin and Hobbes cartoon, was actually a dis-
guised bearer bond or the blueprint for a dirty bomb, the
inspector’s initial scan revealed nothing at all to support any
such a suspicion. Rather, what raised the inspector’s hackles
was the inference that the writer of the letter may have been
engaged in criminal activity unrelated to the customs laws.
Even his thorough read didn’t reveal enough to establish
probable cause or make an arrest; there was just enough to
open up a file on the writer and start an investigation of a
crime that had nothing to do with customs control. A similar
file and investigation could be opened up on any one of us,
if words we put in a personal letter or e-mail raise the suspi-
cions of some faceless apparatchik.
The government makes much of the fact that the customs
agents use a two-step procedure—first scanning the docu-
ments, then reading them—and my colleagues in the majority
take comfort in this. (My colleagues in the concurrence see it
as a needless delay, as they are satisfied to have government
agents read every scrap of paper and every electronic docu-
ment that crosses our borders.) But the two-step procedure
should give us no comfort at all: How else would the agents
decide which documents to read? There are too few agents
UNITED STATES v. SELJAN 14833
and too little time for them to read every word. The sensible
thing to do is to scan each document and see if something
suspicious pops out; if it does, they go back and read the
whole thing. The two-step procedure is not, as they say in
computer parlance, a bug—it’s a feature: It enables experi-
enced law enforcement agents to read the maximum number
of documents likely to yield evidence of crime. The procedure
certainly doesn’t keep them from reading whatever they want
to read, and our approval of it is a green light for customs
agents to go on fishing expeditions through all private papers
and electronic documents that are sent or carried across our
national borders.
Which brings us back to the Fourth Amendment’s explicit
reference to papers as an object of solicitude. Had the Found-
ers meant to treat documents like other kinds of property, they
would have had no reason to refer specifically to papers.
Papers are personal property and thus would have been cov-
ered by the Fourth Amendment’s reference to effects. What
makes papers special—and the reason they are listed along-
side houses, persons and effects—is the ideas they embody,
ideas that can only be seized by reading the words on the
page.
The constitutional text reflects the Founding generation’s
fear and suspicion of government agents seizing and reading
private papers, sentiments stirred up by the Wilkes affair of
the 1760s. Eric Schnapper, Unreasonable Searches and Sei-
zures of Papers, 71 Va. L. Rev. 869, 884-89 (1985); see also
Thomas Y. Davies, Recovering the Original Fourth Amend-
ment, 98 Mich. L. Rev. 547, 561-67 (1999). Trying to develop
a seditious libel case against opposition leader John Wilkes
and his supporters, the British government seized papers from
the homes of the suspects on a general warrant. Davies, 98
Mich. L. Rev. at 562. Wilkes and others sued, and a series of
British cases held the searches and seizures illegal under
English common law. Schnapper, 71 Va. L. Rev. at 876, 912-
13.
14834 UNITED STATES v. SELJAN
As the Wilkes affair unfolded in England, the colonists fol-
lowed it with fervent interest: Colonial newspapers in the
1760s and 1770s were filled with accounts of the Wilkes tri-
als; towns and children were named after Wilkes; “Wilkes
and Liberty” became a patriot slogan. Id. at 876 & n.38; Pau-
line Maier, John Wilkes and American Disillusionment with
Britain, 20 Wm. & Mary Q. 373, 375 (1963). The colonists
hailed the cases condemning the searches as a major vindica-
tion of their personal liberties. Schnapper, 71 Va. L. Rev. at
876 n.38; Davies, 98 Mich. L. Rev. at 564-65 & n.22.
The most famous case, Entick v. Carrington, rejected the
government’s claim of unrestrained power to search personal
papers as “exorbitant,” stressing the owner’s strong privacy
interest: “Papers are the owner’s . . . dearest property; and are
so far from enduring a seizure, that they will hardly bear an
inspection.” 19 Howell’s State Trials 1029, 95 Eng. Rep. 807
(1765). Because of Entick’s influence on the Founding gener-
ation, the Supreme Court has long used it as a guide in inter-
preting the Fourth Amendment. As the Court explained in
Boyd v. United States, “every American statesman, during our
revolutionary and formative period as a nation, was undoubt-
edly familiar with this monument of English freedom, and
considered it as the true and ultimate expression of constitu-
tional law . . . sufficiently explanatory of what was meant by
unreasonable searches and seizures.” 116 U.S. 616, 626-27
(1885); see also Brower v. County of Inyo, 489 U.S. 593, 596
(1989).
Entick and the other Wilkes cases reflect a very different
attitude towards the privacy of thoughts and ideas than that of
my colleagues here, who dismiss the reading of personal cor-
respondence as “nothing like an intrusive body search,” maj.
op. at 14814. The prevailing party in Entick and the most
prominent commentators on the Wilkes affair considered the
search of private papers every bit as intrusive as a body
search. The plaintiff in Entick described the search as “worse
than the Spanish inquisition,” and compared reading a man’s
UNITED STATES v. SELJAN 14835
private correspondence to “racking his body to come at his
secret thoughts.” 19 Howell’s State Trials 1029, 95 Eng. Rep.
807. The most prominent political pamphlet on the Wilkes
affair, widely read in both England and the colonies,
described these searches in similar terms:
Every body has some private papers, that he would
not on any account have revealed. A lawyer hath fre-
quently the papers and securities of his clients; a
merchant or agent, of his correspondents. What then,
can be more excruciating torture, than to have [gov-
ernment agents] . . . amuse themselves with the
perusal of all private letters, memorandums, secrets
and intrigues . . . . [W]ould any gentleman in this
kingdom rest one minute at ease in his bed, if he
thought, that . . . every secret of his family [was]
made subject to the inspection of a whole Secretary
of State’s Office?
Father of Candor, A Letter Concerning Libels, Warrants, the
Seizure of Papers, and Sureties for the Peace or Behaviour;
with a View to some late Proceedings and the Defence of
Them by the Majority 54-55 (5th ed. London 1765).
Another prominent political pamphlet agreed that the
searches violated fundamental rights, stressing the privacy
interest in papers. Papers contain people’s most personal
information, the writer explained, “sealed up in silence, not to
be broke, but with their own heart-strings,” so that “some men
would rather die” than submit to having their papers searched.
A Letter to the Right Honourable the Earls of Egremont and
Halifax, His Majesty’s Principal Secretaries of State, on the
Seizure of Papers 8-9 (London 1763). Has our regard for pri-
vacy deteriorated so precipitously since the time of the
Founders?
The Founding generation recognized that the seizure of pri-
vate papers also undermines freedom of speech. The author of
14836 UNITED STATES v. SELJAN
the Letter to Egremont and Halifax feared that the searches
would mean “an end of confidence amongst mankind. A
severe restraint is laid upon friendship and correspondence,
and even upon the freedom of thought.” Id. at 25. Father of
Candor expressed the same concerns. As long as such
searches were allowed, he lamented, Englishmen “must enjoy
our correspondencies, friendships, papers and studies . . . at
the will and pleasure of . . . inferior agents!” Father of Can-
dor, supra, at 59. Story later described, in similar terms, the
chill on speech that would result from failing to protect per-
sonal correspondence. It would, he explained, “compel every
one in self-defence to write even to his dearest friends with
the cold and formal severity with which he would write to his
wariest opponents or his most implacable enemies.” Joseph
Story, Commentaries on Equity Jurisprudence 251 (Boston,
Little, Brown and Co., 13th ed. 1886).
The Supreme Court recognized in Ramsey that allowing
customs agents to read personal correspondence in border
searches would raise a serious First Amendment issue. The
Court did not reach the question only because the applicable
“postal regulations flatly prohibit[ed], under all circum-
stances, the reading of correspondence absent a search war-
rant.” 431 U.S. at 623-24. The majority, in a footnote,
declines to “consider any potential violation of the First
Amendment.” Maj. op. at 14809 n.8. But Ramsey suggests
that these “First Amendment considerations” are highly rele-
vant in a case like ours, where customs agents read personal
letters without a warrant or even reasonable suspicion. 431
U.S. at 623-24.
The Founding generation also saw the seizure of private
papers as undermining the right against self-incrimination.
Father of Candor complained that seizing a man’s papers to
build a criminal case against him “would be making a man
give evidence against and accuse himself, with a vengeance.”
Father of Candor, supra, at 56. The author of the Letter to
Egremont and Halifax agreed that the searches were function-
UNITED STATES v. SELJAN 14837
ally the same as compelled self-incrimination: It could not be
that “though a man’s tongue is not permitted to bear testi-
mony against him, his thoughts are to rise in judgment, and
to be produced as witnesses to prove the charge.” A Letter to
Egremont and Halifax, supra, at 20. The Supreme Court has
recognized these concerns, condemning suspicionless
searches and compelled production of private papers as
unduly intrusive. United States v. Doe, 465 U.S. 605 (1984)
(government cannot compel production of self-incriminating
documents); Go-Bart Importing Co. v. United States, 282
U.S. 344 (1931) (government cannot conduct a general
exploratory search of papers in the hope that evidence of a
crime may be found). To my colleagues, they count for noth-
ing.
* * *
The majority’s reluctance to step between Mr. Seljan and
his well-merited punishment is understandable. Seljan’s long
career of “sexually educating” children is heinous; it’s diffi-
cult to regret that he will spend the rest of his life in prison.
But this result comes at a high price: allowing serious inva-
sions into the privacy of millions of Americans, innocent as
well as guilty. The previously “narrow” border search excep-
tion, United States v. Sutter, 340 F.3d 1022 (9th Cir. 2003),
is now a gaping hole. Every envelope containing birthday
cards or trade secrets, every e-mail, every diary, every laptop
that crosses the border can be opened and its contents read by
government agents, without a warrant or even founded suspi-
cion. Worse yet, by treating these seizures as a trivial annoy-
ance rather than a major intrusion into our freedom of
thought, my colleagues open the door for police across the
United States to read whatever private papers fall into their
hands. This is the power the English government claimed in
the Wilkes affair; the power that so outraged the colonists; the
power the Fourth Amendment was built to shield us against.
We sell this birthright very cheaply today.