Wednesday, August 15, 2007
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Seizure at Shipping Facility Upheld as ‘Border’ Search
By a MetNews Staff Writer
The seizure of child pornography and other evidence of an octogenarian’s involvement in sex tourism from a FedEx shipping facility was valid as the equivalent of a border search, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel affirmed John Seljan’s conviction and 20-year prison sentence for attempting to travel in interstate commerce to engage in illicit sexual conduct, using interstate facilities to entice a minor into engaging in criminal sexual activity, and possessing and producing child pornography. He argued on appeal that Chief U.S. District Judge Alicemarie Stotler of the Central District of California should have suppressed the contents of the packages he attempted to ship to the Philippines.
Between 2002 and 2003, Seljan sent three FedEx packages to the Philippines. As required by the shipper, he signed a statement agreeing to conditions, including allowing FedEx to inspect the contents and an acknowledgment that the package had to “clear customs” before leaving the United States.
U.S. Custom Service inspectors later inspected all packages bound for the Philippines through FedEx’s Oakland hub as part of a currency interdiction operation. Seljan’s package was found to contain U.S. and Philippine currency, as well as a sexually suggestive letter to an 8-year-old girl.
A second package containing similar contents was intercepted eight months later. Inspectors allowed FedEx to deliver both packages.
Interviews with Seljan’s neighbors and property manager revealed that he traveled to the Philippines to “have sex with kids.” He was shown to have traveled to the Philippines 42 times between 1992 and 2003.
Seljan was arrested at Los Angeles International Airport while attempting to board a flight to the Philippines. After signing a Miranda waiver, he said he had been “sexually educating” children for approximately 20 years.
After his arrest, a search warrant was executed at his residence, and pornography as well as business and travel documents were discovered.
Seljan argued in support of his suppression motion that the search did not fall under any exception to the Fourth Amendment warrant requirement. The motion was denied by Stotler, who held “that inspections at the Oakland facility were tantamount to an inspection at the international border.”
Alternatively, she ruled, Seljan consented to the searches by agreeing to the conditions on the air waybills. In view of the defendant’s age—87—the judge imposed a sentence that was about two years below the low end of the Sentencing Guidelines range.
In concluding that the district judge was correct, the appellate panel—Judges Harry Pregerson, Richard Clifton, and Ronald Gould—citing earlier Ninth Circuit cases, explained:
“The border search doctrine is a narrow exception to the Fourth Amendment prohibition against warrantless searches without probable cause.’ Under this doctrine, customs officials routinely conduct searches at the international border to identify the illegal transportation of contraband or undeclared articles across the border. Such border searches are grounded in the government’s right to protect the United States’ territorial integrity by examining persons and property entering and leaving the country, and ‘are reasonable simply by virtue of the fact that they occur at the border.’ As a consequence, searches at the international border require neither a warrant nor individualized suspicion.”
There is, the court acknowledged, a reasonableness limitation to such searches. But those limitations were not exceeded in this case, the judges said, given the strength of the governmental interests involved and inspector’s realization, upon a quick scan of the salacious letter, that child pornography or sex tourism might be involved.
The judges also rejected the contention that Seljan’s age rendered the sentence unreasonable. They noted that Stotler took that fact into consideration, but pointed to the seriousness of the offenses and the fact that Seljan was previously convicted of a sex crime.
Pregerson dissented in part, arguing that it was unreasonable for the inspector to look at the letter, since it was obviously personal correspondence.
The case is United States v. Seljan, 05-50236.
Copyright 2007, Metropolitan News Company