FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 05-50236 Plaintiff-Appellee,

D.C. No.

v.  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
COUNSEL

Jerald Brainin, Los Angeles, California, for defendantappellant John W. Seljan. 

Michael J. Raphael (argued), Assistant United States Attorney, Los Angeles, California, and Richard Y. Lee, Assistant

United States Attorney, Santa Ana, California, for plaintiffappellee United States of America. 

OPINION

CLIFTON, Circuit Judge: 

John Seljan appeals his conviction and sentence for multiple 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 monetary instruments in packages being sent to foreign destinations, 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 without a warrant, or from doing so after they should have realized

that the document being examined was not a monetary instrument. Seljan also challenges his sentence. We affirm. 

I. Facts and Procedural History

Seljan sent packages from Southern California to the Philippines via FedEx on at least three separate dates: November

20, 2002, August 2, 2003, and September 26, 2003.1 Seljan

1The 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).

UNITED STATES v. SELJAN 14795
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 Conditions of Contract on the back of this Air Waybill.” These conditions included the following provision: “Right to Inspect.

Your shipment may, at our option or at the request of governmental 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 destination 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 inspectors 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 authorized under 31 U.S.C. § 5317(b) to open and inspect packages

at the border to enforce that statute. 

2The 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). 

14796 UNITED STATES v. SELJAN
The FedEx package sent by Seljan was opened and examined 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 sexually suggestive language and appeared to be addressed to an

eight-year-old girl.3 Customs officials photocopied the package’s contents before returning it to FedEx for delivery. 

3A 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 picture 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.

UNITED STATES v. SELJAN 14797
The second package sent by Seljan was intercepted by customs 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 sexually 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 supervisor, 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 manager 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 determined 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 letters were addressed. One letter was addressed to the recipient

of the November 2002 letter. The inspectors copied the contents 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.

14798 UNITED STATES v. SELJAN
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 incriminating 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 “sexually 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 executed 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 warrant requirement. At a minimum, he asserted, these were “extended 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 Seljan had consented to these searches by agreeing to the conditions 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

UNITED STATES v. SELJAN 14799
18 U.S.C. §§ 2423(b) and (e); two counts of use of an interstate facility to entice a minor to engage in criminal sexual

acts in violation of 18 U.S.C. § 2422(b); one count of production of child pornography in violation of 18 U.S.C. § 2251(a);

and two counts of possession of child pornography in violation 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 Guidelines 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 nonrecused 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 suspicion that doing so would reveal contraband or uncover evi4Much of this opinion is drawn directly from the per curiam opinion

filed by the three-judge panel, primarily written by Judges Harry Pregerson and Ronald M. Gould. They were not drawn to serve on this en banc

panel, but their contributions are appreciated. 

14800 UNITED STATES v. SELJAN
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, contending that there are few, if any, limits on the government’s ability to search at the border and that this search did not run

afoul of any such limitations. Second, the government contends that Seljan consented to the search by signing the FedEx

air waybill.5

[1] The customs search at the Oakland FedEx regional sorting facility took place at the functional equivalent of the border. 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 officials may conduct searches at the international border to identify 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 territorial 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.

5Because we hold that the border search of the FedEx package was constitutionally valid, we do not reach the alternative ground that Seljan consented to the search. 

6A 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). 

UNITED STATES v. SELJAN 14801
denied, 126 S. Ct. 105 (2005). Because searches at the international 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. Ramsey, 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 conclude that the extended border search doctrine does not apply

with equal force to exit searches as it does to entry searches.”). 

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

14802 UNITED STATES v. SELJAN
what circumstances, a border search might be deemed ‘unreasonable’ 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 alimentary 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 nonroutine 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 ‘reasonableness.’ 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 comports 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 determination, however, because there is no conflict between our precedent 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 offenUNITED STATES v. SELJAN 14803
sive that they would be deemed unreasonable under the

Fourth Amendment, and the holding in Montoya de Hernandez that reasonable suspicion was needed to justify a border 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 package was opened and examined by customs inspectors when

they were conducting an outbound currency interdiction operation 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 instruments worth more than $10,000. The provision explicitly covers 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, cashier’s checks, third-party checks, promissory notes (as

7Before the three-judge panel, Seljan contended that the customs inspection 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 package, but argued that it was nonetheless a violation of the Fourth Amendment for the inspectors to read the letter. 

14804 UNITED STATES v. SELJAN
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 fictitious payee (for the purposes of § 103.23), or otherwise in such form that title thereto passes upon

delivery; 

(iv) Incomplete instruments (including personal

checks, business checks, official bank checks, cashier’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, 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. GomezOsorio, 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 authority 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 Executive plenary authority to conduct routine searches and seiUNITED STATES v. SELJAN 14805
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 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 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 unreasonable 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 examined), 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

14806 UNITED STATES v. SELJAN
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. 

[5] Cases in which we have considered invalidating a border 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

UNITED STATES v. SELJAN 14807
Court caselaw, as we noted above—we have usually concluded that the limit had not been exceeded, consistent with

the Supreme Court’s conclusion that the government’s authority to search at the border is broad and “at its zenith.” FloresMontano, 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 reasonable scope, but have rejected arguments that the limit was

exceeded in particular cases. See, e.g., United States v. Hernandez, 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 containing 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

14808 UNITED STATES v. SELJAN
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 letterclass 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 officials could search, without probable cause and without 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 without 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 protect an envelope sent via FedEx more than one that is mailed,

sent by UPS, or carried in a traveler’s pocket across the border. 

Seljan also argues that the customs inspectors were

required to stop their examination without reading the letter.

8We do not here consider any potential violation of the First Amendment implicated by this search. See Ramsey, 431 U.S. at 623-24 & n.18.

UNITED STATES v. SELJAN 14809
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. 

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 Amendment 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 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. 

Nor did it take exceptional scrutiny of Seljan’s one-page

letter for the inspector to detect possible unlawful conduct. In

14810 UNITED STATES v. SELJAN
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 suspicion 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 couple of sentences on there, something about an

eight-year-old girl, something about “I love

you,” and there was a final sentence at the bottom 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.

UNITED STATES v. SELJAN 14811
§ 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 inspections under the plenary authority of a border search. On the

facts here, the customs inspector did not act contrary to objective reasonableness. Although he was checking for compliance with currency declaration requirements under section

5316, he did not need to read the letter carefully to detect evidence 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 unworkable and unreasonable constraint on the nation’s customs officials 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 applicability 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 imprudent 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 document 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 pressing national special need” in view of the findings of the 9/11 Commission

on terrorist travel) (internal quotation marks omitted). 

14812 UNITED STATES v. SELJAN
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 constitutional under the plain view doctrine in situations where “the

incriminating nature of the object must be immediately apparent 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 warrant 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 warrant 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 apparent” evidence of pedophilia. See Bulacan, 156 F.3d at 968.

10In 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 seizure of narcotics and drug paraphernalia was invalid. See id. at 973-74.

Because the search was not legitimately initiated, the Bulacan court concluded 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. 

UNITED STATES v. SELJAN 14813
The inspector’s scanning of the document was not unreasonable. In Issacs, this court made clear that the plain view doctrine 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 evidence 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 conviction 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 category. 

14814 UNITED STATES v. SELJAN
It is now established that “[a]ppellate review is to determine 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 connected 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 interstate 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

11Sentencing 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. 

UNITED STATES v. SELJAN 14815
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 objective 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 applying section 3D1.4 is four. This would still result in a fourlevel 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

12It does not matter that the government failed to separate the allegations 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) (holding that the purpose of the grouping provisions is to prevent prosecutors

from enhancing sentences by manipulating the counts charged). 

14816 UNITED STATES v. SELJAN
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 section 4B1.5. Rather, Seljan argues that because criminal history is primarily relevant as an indicator of future recidivism,

the district court should have disregarded the elevated criminal history category in light of his age and low actual likelihood 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 compels 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

UNITED STATES v. SELJAN 14817
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. 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 package 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 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. 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.

14818 UNITED STATES v. SELJAN
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 foreign Nations” — has granted the Executive plenary authority

to conduct routine searches at the border to protect our territorial 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 proposal 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 amendments 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 ‘unreasonable,’ 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 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). 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 reasonable suspicion, probable cause, or warrant, and firstclass mail may be opened without a warrant on less

than probable cause. Automotive travelers may be

UNITED STATES v. SELJAN 14819
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 instrument 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 necessary to prevent the introduction of contraband into this country 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 anticipated 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 territorial integrity. 

While searches at the border are generally per se reasonable, 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

1The border search doctrine, however, “is not limited to cases where the

searching officers have reason to suspect the entrant may be carrying foreign 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 defendant “ha[d] no opportunity to obtain foreign contraband”). 

14820 UNITED STATES v. SELJAN
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 Montoya de Hernandez, the Court held that reasonable suspicion

was required to detain a traveler, who was suspected of smuggling contraband in her alimentary canal, in a manner “beyond 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 (quoting 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 interests of the person being searched — simply do not carry over

to vehicles.” Id. at 152. The Court did not foreclose the possibility that certain searches of property may be so destructive

that they require some level of suspicion. Id. at 155-56 (holding 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. CortezUNITED STATES v. SELJAN 14821
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 CortezRivera, 454 F.3d at 1041-42. As we explained in CortezRivera, 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 example, 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 package 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

14822 UNITED STATES v. SELJAN
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 reasonable under the Fourth Amendment. See Ramsey, 431 U.S.

at 620. The Supreme Court and this circuit have upheld a variety 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 resident 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 international 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 computer violated the Fourth Amendment because First Amendment 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 terUNITED STATES v. SELJAN 14823
rorist communications, which are inherently ‘expressive.’ Following [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.2Id. (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 suspicion. The fact that Seljan’s correspondence contained

2The 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 applications 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 general 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. 

14824 UNITED STATES v. SELJAN
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 Seljan’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 reasonableness of the method of conducting a border search of property 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 suspicion — 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 international 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 without 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. Examining 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

UNITED STATES v. SELJAN 14825
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 expansive border searches.4

3We 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 property 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 damaging as to invade the rights protected by the Fourth Amendment”). 

4Although evidence of pedophilia may have been obvious from a scan

of Seljan’s letter, those who protect our borders and are charged with preventing 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.” 

14826 UNITED STATES v. SELJAN
III.

Although the majority relies on the customs inspector’s

statutory authority to conduct the currency interdiction operation 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. Taghizadeh, 41 F.3d 1263, 1265 (9th Cir. 1994) (en banc). On its

face, section 1582 does not require any particularized suspicion 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 congressionally created remedy, violation of an agency regulation does not require

suppression of evidence.” Id. (citations omitted). This regulation that customs has chosen to enact reflects nothing more than the agency’s voluntary decision to police itself above and beyond anything that the

Constitution or Congress requires. 

UNITED STATES v. SELJAN 14827
expectation of privacy in the contents of his correspondence,

he could have availed himself of the statutory protections contained 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 “particularly 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 reasonable under the Fourth Amendment when it comes to border 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 provide greater statutory protection for international mail sent via

the U.S. Postal Service. If Congress wants to increase the protection 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 people 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

14828 UNITED STATES v. SELJAN
might call freedom of conscience—from invasion by the government. 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 concurring 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 constitutional 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 suggested 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.

UNITED STATES v. SELJAN 14829
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 vehicle’s gas tank—can be searched for contraband without suspicion, 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 purport to be—but even if it were, I should think that having perfect strangers rummage through one’s diary, personal

correspondence, medical prescriptions or other private writings would seriously harm one’s “dignity and privacy interests.” 

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 crossing 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 documented 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

14830 UNITED STATES v. SELJAN
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 security 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 reiterated 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 mission 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 reasonable suspicion, the contents of the package are repackaged and the package is then returned to the

sorting process for loading onto the appropriate

international airplane.

UNITED STATES v. SELJAN 14831
Inspector LeBlanc makes it clear that failure to declare currency 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 contraband being shipped out of the country or anything that’s contrary 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 disguised 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 suspicions of some faceless apparatchik. 

The government makes much of the fact that the customs

agents use a two-step procedure—first scanning the documents, 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 document 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

14832 UNITED STATES v. SELJAN
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 experienced 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 Founders 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 covered by the Fourth Amendment’s reference to effects. What

makes papers special—and the reason they are listed alongside 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 Seizures of Papers, 71 Va. L. Rev. 869, 884-89 (1985); see also

Thomas Y. Davies, Recovering the Original Fourth Amendment, 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.

UNITED STATES v. SELJAN 14833
As the Wilkes affair unfolded in England, the colonists followed it with fervent interest: Colonial newspapers in the

1760s and 1770s were filled with accounts of the Wilkes trials; towns and children were named after Wilkes; “Wilkes

and Liberty” became a patriot slogan. Id. at 876 & n.38; Pauline 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 vindication 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 generation, the Supreme Court has long used it as a guide in interpreting 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 undoubtedly familiar with this monument of English freedom, and

considered it as the true and ultimate expression of constitutional 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 correspondence 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

14834 UNITED STATES v. SELJAN
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 frequently the papers and securities of his clients; a

merchant or agent, of his correspondents. What then,

can be more excruciating torture, than to have [government 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 privacy deteriorated so precipitously since the time of the

Founders? 

The Founding generation recognized that the seizure of private papers also undermines freedom of speech. The author of

UNITED STATES v. SELJAN 14835
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 Candor, supra, at 59. Story later described, in similar terms, the

chill on speech that would result from failing to protect personal 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 circumstances, the reading of correspondence absent a search warrant.” 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 relevant 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 function14836 UNITED STATES v. SELJAN
ally the same as compelled self-incrimination: It could not be

that “though a man’s tongue is not permitted to bear testimony 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 nothing.

* * *

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 difficult to regret that he will spend the rest of his life in prison.

But this result comes at a high price: allowing serious invasions into the privacy of millions of Americans, innocent as

well as guilty. The previously “narrow” border search exception, 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 suspicion. Worse yet, by treating these seizures as a trivial annoyance 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.

UNITED STATES v. SELJAN 14837