Friday, October 24, 2008
Court Upholds Seizure at Shipping Facility as ‘Border” Search
By KENNETH OFGANG, Staff Writer
The seizure of child pornography and other evidence of an elderly man’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.
In a 10-1 en banc decision, with Chief Judge Alex Kozinski dissenting, the court 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. Seljan, now 90, also claimed that the sentence was excessive given his age.
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 one of Seljan’s former neighbors and a former property manager revealed that he traveled to the Philippines, and that he said he did so 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. Citing the defendant’s age, the judge imposed a sentence that was about two years below the low end of the Sentencing Guidelines range.
A three-judge Ninth Circuit panel affirmed, but the court voted to rehear the case en banc.
Judge Richard Clifton, writing for the en banc court, said the district judge was correct in ruling that Seljan had been subjected to a lawful border search.
He cited United States v. Flores-Montano (2004) 541 U.S. 149, in which the high court held that border agents did not, under the Fourth Amendment, need reasonable suspicion to stop a vehicle and remove and disassemble its gas tank.
Clifton agreed with defense counsel that border searches are subject to some limits. But he rejected the argument that the search of Seljan’s package was overly intrusive.
No ‘Exceptional Scrutiny’
The defense contended that the search should have ended once the agents realized there was no contraband currency in the package, and that they should not have read Seljan’s letter. Clifton, however, said some continuation of the search was reasonable, and that there was no “exceptional scrutiny” of the letter.
“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 judge wrote. “The reasonable expectation of privacy for that package was necessarily tempered.”
Clifton emphasized that the search was of a package, suggesting that more restrictive limits apply when someone’s person is being searched. He also noted that it only took a “glance” at the letter for one of the agents to realize he was dealing with evidence that the package was sent by a pedophile.
While inspecting outbound packages, the judge explained, customs agents follow a protocol in which they initially “scan,” rather than read through, any documents. If scanning gives them a reasonable suspicion of criminality, the package is given closer scrutiny.
While not legally required, Clifton said, use of the scanning method will generally inoculate searches against claims of unreasonableness. “We refuse to impose an unworkable and unreasonable constraint on the nation’s customs officials by requiring that they avert their eyes from obvious unlawfulness,” the judge wrote.
With regard to the sentence, Clifton concluded that while the defendant is unlikely to survive it, and his age makes it unlikely he will re-offend, the term imposed was reasonable given the seriousness of the crime, the fact that it is below the guidelines range, and the defendant’s 1977 conviction for a sex offense.
Clifton’s opinion was joined by Judges Pamela A. Rymer, Barry G. Silverman, M. Margaret McKeown, Raymond C. Fisher, Johnnie B. Rawlinson, Milan D. Smith Jr., and Sandra S. Ikuta.
Judge Consuelo Callahan, in a separate concurrence joined by Judge Carlos Bea, said the search was valid because it took place at the functional equivalent of the border, and that further discussion was unnecessary. “I write separately because the majority takes the unwarranted step of examining the reasonableness of the ‘scanning’ methodology and whether precedents involving the plain view doctrine support such an analysis.”
Kozinski argued in dissent that the search violated the Fourth Amendment’s guarantee of the “right of the people to be secure in their...papers.” While the court’s “reluctance to step between Mr. Seljan and his well-merited punishment is understandable,” the chief judge wrote, “this result comes at a high price.”
The majority, he said, was turning what the court has previously described as a “narrow” Fourth Amendment exception into “a gaping hole” that would allow “every e-mail, every diary, every laptop that crosses the border” to be inspected and read “without a warrant or even founded suspicion.”
Kozinski cited the infamous “Wilkes affair,” in which private papers were seized under general warrant in 1760s England in order to build a case of seditious libel against a leader of the political opposition. The actions led to a series of decisions holding that English common law did not permit such seizures.
“We sell this birthright very cheaply today,” the jurist wrote.
The case was argued on appeal by Jerald Brainin for the defendant and Assistant U.S. Attorney Michael J. Raphael for the government. Assistant U.S. Attorney Richard Y. Lee worked on the brief.
The case is United States v. Seljan, 05-50236.
Copyright 2008, Metropolitan News Company