Customs had an outgoing package interdiction program at the Fed Ex Oakland overseas shipping hub looking for cash in outgoing packages, and the search here was authorized by
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, aircraft, 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).
The package search here revealed a letter and a sexual relationship with an 8 year old girl in the Phillipines. He challenged the reading of the letter.
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 present here. The search did not involve the destruction of property, 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 a 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 unreasonable in Kremen v. United States, 353 U.S. 346, 77 S. Ct. 828, 1 L. Ed. 2d 876 (1957) (officers, without a search warrant, seized the entire contents of a cabin and took the items 200 miles away to be examined), and Go-Bart Importing Co. v. United States, 282 U.S. 344, 356-58, 51 S. Ct. 153, 75 L. Ed. 374 (1931) (Officer falsely claimed to have a search warrant and then “made a general and apparently unlimited 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 tempered. 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 triggered 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.
. . .
Seljan also argues that the customs inspectors were required to stop their examination without reading the letter. Even if the inspectors were authorized to open the FedEx package and the sealed envelopes within the package, he contends that it should have been apparent to the customs agent that the letter was not currency or another monetary instrument, such that no reading was justified or permitted.
. . .
Moreover, the customs inspector’s task here was not so simple. Although the bills turned out to be of small denominations, both of the sealed envelopes within the first FedEx parcel 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, demonstrates, 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 monetary instrument without actually looking at what was printed there.
IV. Conclusion
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 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 unreasonably constrain customs inspectors from searching and seizing obviously incriminating materials would be imprudent and inconsistent with Fourth Amendment jurisprudence.
Reading it, he scanned the letter and quickly discerned its contents. Seljan was 87 years old and sentenced to 20 years for attempted travel to have sex with a minor. United States v. Seljan, 547 F.3d 993 (9th Cir. 2008) (en banc), aff’g United States v. Seljan, 497 F.3d 1035 (9th Cir. 2007), posted Aug. 15, 2007 here: FedEx’s Oakland hub is functional equivalent of border for overseas shipments.
