9th Circuit upholds conviction for “sexual misconduct with young children” discovered by U.S. Customs

In U.S. v. Seljan 2008 WL 4661700 (9th Cir. Oct. 23, 2008), the U.S. Court of Appeals for the Ninth Circuit upheld the conviction of John W. Seljan “for multiple offenses primarily involving sexual misconduct with young children in the Philippines.”

Seljan “sent packages from Southern California to the Philippines via FedEx” that were discovered by customs inspectors – on at least three separate dates – to contain some combination of money, “sexually suggestive letters” to young girls, child pornography, and adult pornography. International shipment via FedEx required Seljan’s signature on an “international air waybill” acknowledging U.S. Customs’ “right to inspect.” Nevertheless, Seljan argued that “all evidence discovered as a result of the searches” should be suppressed because they did not “fall under any exception to the Fourth Amendment’s warrant requirement.”

Seljan focused his argument on the first search, contending that “customs inspectors violated his Fourth Amendment rights when they opened the package and read the enclosed letter without reasonable suspicion that doing so would reveal contraband or uncover evidence of criminal activity.” Therefore, according to Seljan, the search was “unreasonably intrusive in its scope.”

On the other hand, the government justified its search because it occurred “at the functional equivalent of the international border” (“The border search doctrine is a narrow exception to the Fourth Amendment prohibition against warrantless searches without probable cause.”) and because Seljan effectively “consented to the search by signing the FedEx air waybill.”

According to the Ninth Circuit:

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….

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….

[T]he 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…. The inspector was not required to disregard what he saw, even if it was not what he was there to look for.

Finally, the Court held:

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.