United States v. Steven Baxter

PRECEDENTIAL UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 18-3613 _____________

UNITED STATES OF AMERICA,

Appellant v.

STEVEN BAXTER _____________

On Appeal from the District Court of the Virgin Islands

District Court No. 3-17-cr-00024-001

District Judge: The Honorable Curtis V. Gomez

_____________

Argued December 11, 2019

Before: SMITH, Chief Judge, McKEE and SHWARTZ,

Circuit Judges (Filed: February 21, 2020)

John M. Pellettieri [ARGUED] United States Department of Justice Appellate Section Room 1264 950 Pennsylvania Avenue, N.W. Washington, DC 20004 Everard E. Potter Office of United States Attorney 5500 Veterans Drive United States Courthouse, Suite 260 St. Thomas, VI 00802

Counsel for Appellant Joseph A. DiRuzzo, III [ARGUED] Daniel Lader DiRuzzo & Company 401 East Las Olas Boulevard Suite 1400 Fort Lauderdale, FL 33301 Michael L. Sheesley P.O. Box 307728 St. Thomas, VI 00803

Counsel for Appellee

_____________________ OPINION OF THE COURT _____________________

SMITH, Chief Judge.

Steven Baxter allegedly mailed two packages from South Carolina to St. Thomas, United States Virgin Islands. Upon arrival in St. Thomas, U.S. Customs and Border Protection (CBP) agents opened the packages and discovered that they contained guns. Baxter was apprehended and charged with two counts of illegal transport of a firearm. During his criminal proceeding, he moved to suppress the guns as the fruit of unreasonable searches which violated his Fourth Amendment rights. The District Court of the Virgin Islands agreed and granted the motion to suppress. The Government has appealed.

For the reasons that follow, we conclude that CBP permissibly conducted the searches pursuant to the border- search exception to the Fourth Amendment. Because the searches did not violate Baxter’s constitutional rights, we will vacate the order granting the motion to suppress and remand for further proceedings.

I. A.1

On March 31, 2017, CBP K-9 Officer Joseph Lopez was working at the Cyril E. King Airport in St. Thomas with his trained and certified canine, Bo. Per his routine daily duties, Lopez brought Bo into a cargo plane to inspect mail that was incoming to the Virgin Islands (also, “the VI”). Bo alerted to a package, signaling in a manner indicating the presence of drugs. The package purportedly had been sent by Jason Price, whose address was in South Carolina, and had been mailed to a Mekelya Meade in St. Thomas. It was labeled priority mail and weighed 3 pounds 2.2 ounces.

Officer Lopez reported the package to CBP Officer Richard Kouns, who removed it from the plane. Officer Kouns opened the box and brought out a piece of clothing that smelled strongly of marijuana, although no drugs were found in the package. When Officer Kouns returned the item to the box, a magazine and round of ammunition fell to the floor. The officers inspected the package more thoroughly and discovered the unassembled parts of a gun.

A few days later, on April 3, 2017, a postal inspector contacted CBP regarding another package which bore the same names and addresses as the March 31 package.2 Officers Lopez and Kouns responded to the call and procured the package. Because of the addresses and the weight of the package,3 Officer Kouns suspected it might contain another gun and decided to x-ray it. The x-ray revealed items that appeared to be a gun and ammunition. Officer Kouns then opened the package and discovered what were indeed a gun and ammunition.

The CBP officers contacted Homeland Security. Homeland Security Special Agent Alicia Blyden arranged a controlled delivery of the two packages. Authorities ultimately apprehended Steven Baxter as the alleged sender of the packages, and a grand jury charged him with two counts of illegal transport of a firearm under 18 U.S.C. § 922(a)(5).

B.

Baxter moved to suppress the guns, claiming that CBP’s warrantless searches of the two packages violated his Fourth Amendment rights.4 After a hearing, the District Court initially denied suppression with respect to the March 31, 2017 search and ordered additional briefing as to the April 3, 2017 search. Subsequently, on November 26, 2018, the District Court vacated its earlier partial denial and issued a detailed forty-two page opinion granting the suppression motion in its entirety. United States v. Baxter, No. 2017-24, 2018 WL 6173880 (D.V.I. Nov. 26, 2018).

In its opinion, the District Court observed that the packages sent from South Carolina to St. Thomas “never left United States territory.” Id. at *8. The District Court posited that, under the Fourth Amendment, the packages “remain protected from a warrantless search unless . . . they are transferred to a foreign territory.”5 Id. at *7. The District Court acknowledged that, while the Virgin Islands is not a “foreign territory” or a “foreign country,” id. at *7–*9, nonetheless “[a]rguably . . . , some type of border—or an approximation of one—exists” between the mainland United States and the VI for certain customs purposes. Id. at *14. But it concluded that searches at that customs border for purposes of enforcing customs laws are less important “than the interest of the United States in enforcing its own Constitution.”6 Id.

Our Court’s decision in United States v. Hyde, 37 F.3d 116 (3d Cir. 1994), established the applicability of the border-search exception to the Fourth Amendment at the customs border between the mainland United States and the Virgin Islands.7 Because the border-search exception permits the Government to conduct warrantless Following the Supreme Court’s lead, Hyde framed the Government’s power to conduct warrantless border searches as an “exception” to the Fourth Amendment’s warrant requirement. See, e.g., 37 F.3d at 119–20 (citing United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985), United States v. Ramsey, 431 U.S. 606, 620 (1977), and United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 125 (1973)). Our reading of those cases suggests, however, that this is an imperfect locution: a border search is not an “exception” carved out from the Fourth Amendment’s application, but rather a border search is a circumstance in which the Fourth Amendment was never intended to apply. See Hyde, 37 F.3d at 119 (“The inapplicability of the Fourth Amendment to border searches was, to the [Ramsey] Court, evident: ‘That searches made at the border, pursuant to the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border. . . .’” (quoting 431 U.S. at 616)). Nonetheless, for consistency’s sake, we employ the “exception” terminology here. searches at the Virgin Islands customs border, the District Court had to distinguish Hyde. It did so by relying on the direction that the packages were traveling—i.e., from the mainland to the Virgin Islands—not from the Virgin Islands to the mainland, as was the case in Hyde.

According to the District Court, 19 U.S.C. § 14678 authorizes customs inspections of persons and items upon entry into the United States, but “[t]he Court is aware of no statutory authority authorizing similar inspections of persons or items entering the United States Virgin Islands from the United States mainland.” Baxter, 2018 WL 6173880, at *15. In addition, the District Court weighed the interests at play and concluded that the balance is different than that struck in Hyde. The District Court weighed the Government’s interest in conducting the searches for customs enforcement purposes against individuals’ personal privacy interest in mailed packages and determined “that the government’s interest in conducting the type of search at issue here is less compelling than the government’s interest in conducting the searches at issue in Hyde. In addition, the intrusion on privacy here is more significant than the intrusion presented in Hyde.” Id. at *14 n.7. Thus, it concluded that, when traveling into the Virgin Islands, the personal interest prevails, and “the warrantless searches of the sealed mail packages in this matter were not reasonable.” Id.

The District Court reiterated, “[i]t is axiomatic that those things that originate in, and stay within, the territory of the United States remain free from border searches.” Id. at *15. Accordingly, the District Court granted Baxter’s motion to suppress the firearms.

II. A.

The Government timely appealed. We have jurisdiction over the Government’s appeal of the order suppressing evidence pursuant to 18 U.S.C. § 3731. We review the District Court’s legal conclusions de novo. See Hyde, 37 F.3d at 118.

B.

Because we disagree with the District Court’s conclusion that Hyde is inapposite, we begin by turning our attention to that case. In Hyde, three individuals were attempting to board a flight from St. Thomas to Miami, Florida. After the individuals were stopped by Customs, inspectors conducted pat-downs and discovered cocaine taped to their bodies under their clothes. The defendants moved to suppress the cocaine as the fruit of unconstitutional searches. The District Court granted the suppression motions. On appeal, the Government argued that the warrantless searches were constitutional under the border-search exception to the Fourth Amendment. We agreed, concluding that an individual “may be subjected to a routine customs search prior to departure in the absence of any degree of suspicion that the individual is engaged in wrongdoing.” 37 F.3d at 118.

We first acknowledged the general rule that “warrantless searches are presumptively unreasonable.” Id. (quoting Horton v. California, 496 U.S. 128, 133 (1990)). But we also pointed out that searches at a border are, and always have been, a fundamentally different category of search. Border searches are one of those “limited situations [in which] the government’s interest in conducting a search without a warrant outweighs the individual’s privacy interest.” Id. As such, “searches at a border, without probable cause and without a warrant, are nonetheless ‘reasonable.’” Id. at 118. Indeed, we reasoned that going back to our country’s founding, the very first Congress—the same Congress that proposed the Bill of Rights—specifically authorized warrantless border searches for the purpose of collecting customs duties, and “did not intend such searches to come within the prohibitions of the Fourth Amendment.” Id. at 119.

We observed in Hyde that the Supreme Court has recognized, explained, and reaffirmed the border-search exception in several cases. See id. at 119–20 (citing cases). Historically, the Government’s broad power to conduct border searches has been necessary to prevent smuggling and to prevent prohibited articles from entering the country. See United States v. 12 200-Ft. Reels of Super 8MM Film, 413 U.S. 123, 125 (1973). Border-search jurisprudence demonstrates that the Supreme Court has “faithfully adhered to” the view that “border searches were not subject to the warrant provisions of the Fourth Amendment and were ‘reasonable’ within the meaning of that Amendment.” United States v. Ramsey, 431 U.S. 606, 617 (1977). The border-search exception is grounded in the sovereign’s right to control “who and what may enter the country,” and for that reason, individuals have “limited justifiable expectations of privacy” when presenting themselves or their mailed parcels for entry at a border.9 Id. at 620, 623 n.17. Thus, the balance between an individual’s lesser expectation of privacy at a border tilts more favorably to the Government, which has a heightened interest in regulating the collection of duties and preventing the entry of contraband. See United States v. Montoya de Hernandez, 473 U.S. 531, 537, 539–40 (1985).

We acknowledged in Hyde that the Supreme Court has applied the border-search exception only when an international boundary “or its functional equivalent”10 is at play. Hyde, 37 F.3d at 120. The border between the United States and the Virgin Islands is neither an international boundary nor its functional equivalent, and so the Supreme Court’s border-search exception cases did not, by themselves, control our decision in Hyde. Id. at 122. Nonetheless, we decided that the rationale of the Supreme Court’s international border-search cases applies with equal force at the customs border that Congress established between the mainland United States and the Virgin Islands.11 Id. 37 F.3d at 120 n.2 (citing United States v. Caminos, 770 F.2d 361, 364 (3d Cir. 1985)).

Like searches at an international border, routine warrantless searches at the Virgin Islands customs border would serve the United States’ interest in regulating its customs system. Id. “Routine warrantless border searches without probable cause would appear to be as essential to the accomplishment of the objects of that customs border as similar traditional searches have universally been recognized to be to the objectives of traditional customs systems at international borders.” Id. And, on “the other side of the balance,” we observed that individuals at the customs border, like at an international border, have a lesser privacy expectation than they would within the mainland United States. Id. Thus, the searches of the Hyde defendants were reasonable and did not offend the Fourth Amendment. Id.

We completed our analysis in Hyde with the observation that the application of the border-search exception at the customs border is consistent with the protections of the Fourth Amendment, which apply within the territory of the Virgin Islands. See Revised Organic Act of 1954, 48 U.S.C. § 1561 (“The right to be secure against unreasonable searches and seizures shall not be violated. No warrant for arrest or search shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and Midway Islands, Kingman Reef, Johnston Island, and the island of Guam.”). the persons or things to be seized.”). The existence of Fourth Amendment protections within the Virgin Islands does not undermine Congress’s ability to direct that a customs border exists between the United States mainland and the Virgin Islands and to protect that customs border by conducting searches that are “essential to the effective surveillance of the customs border and to the efficient collection of the duties Congress had imposed.” Hyde, 37 F.3d at 123.

In sum, Hyde established that the border-search exception to the Fourth Amendment permits routine warrantless customs searches at the customs border between the mainland United States and the Virgin Islands.12 Hyde’s vitality is undiminished today.

C.

The routine customs searches of Baxter’s packages were reasonable under Hyde unless, as the District Court held, it makes a difference that the packages were leaving the mainland United States rather than entering into it.13 Ramsey, as far as the applicability of the border-search exception is concerned, there is no distinction between persons and mailed items. See Ramsey, 431 U.S. at 620 (“The critical fact is that the envelopes cross the border and enter this country, not that th[ey] are brought in by one mode of transportation rather than another. It is their entry into this country from without that makes a resulting search ‘reasonable.’”).

We conclude that this directional distinction should have made no material difference to the District Court’s analysis. The border-search exception applies regardless of the direction of a border crossing.

In United States v. Ezeiruaku, 936 F.2d 136 (3d Cir. 1991), we considered the applicability of the border- search exception to searches of luggage traveling across the international border out of the United States. Specifically, customs inspectors at the Philadelphia International Airport conducted a warrantless search of Ezeiruaku’s suitcases, which were about to be loaded onto an outgoing flight to Frankfurt, Germany.14 The inspectors discovered $265,000 of unreported cash in one suitcase. Ezeiruaku was charged with one count of exporting unreported currency, and he moved to suppress the cash as fruit of an unconstitutional search. The District Court granted the motion.

We reversed, rejecting Ezeiruaku’s claim that the border-search exception does not apply to articles leaving the United States. Id. at 143. Consistent with every Court of Appeals to have considered the issue, we concluded that seizure becomes nonroutine, a customs official needs reasonable suspicion to justify it.”). “the traditional rationale for the border search exception applies as well in the outgoing border search context.”15 Id. Thus, “[b]ecause the luggage . . . was at the functional equivalent of the border, we [held] that no warrant, reasonable suspicion or probable cause was needed to justify the search.” Id.

Baxter is correct in observing that the Supreme Court’s border-search cases primarily discuss the United States’ interest in protecting its borders from illicit entry of persons and goods into the United States. See, e.g., Ramsey, 431 U.S. at 620. This observation does not, however, undermine the policy reasons we took into account in Ezeiruaku that justify applying the border- search exception to any border crossing, regardless of the direction. The United States has an interest in monitoring persons and items that exit the country as well as those that enter it. Ezeiruaku, 936 F.2d at 143.

Indeed, in both Hyde and Ezeiruaku, we drew support for our conclusions based on public policy concerns. We recognized in Hyde that the United States has an interest in regulating commerce to enforce its customs border with the Virgin Islands. See Hyde, 37 F.3d at 122. This interest applies to goods and currency both entering and leaving the mainland by crossing that customs border. Moreover, we observed in Ezeiruaku that the Government’s concern with the influx of illicit items into the United States, such as drugs or similar contraband, gives rise to a parallel interest in monitoring the outflow of unreported cash that may be supporting the illegal narcotics trade. 936 F.2d at 143. So, even though drug trade was not at issue in Ezeiruaku’s case, “in an environment that sees a massive importation of drugs across our borders, . . . [s]trong dictates of public policy reinforce the necessity of identifying, if not monitoring or controlling, a cash outflow from the country as well as an influx of narcotics into the country.” Id. The United States has similar interests at the Virgin Islands customs border.16

Thus, under Ezeiruaku, the direction of travel does not impact the applicability of the border-search exception. The District Court erred in concluding otherwise.

D.

Apart from his Fourth Amendment claim, Baxter also contends that the regulations that authorized the CBP officers’ searches of the mailed packages are unconstitutional and invalid for failure to comply with the Administrative Procedure Act.17 Baxter challenges: (1) 19 C.F.R. § 145.1, a regulation that defines certain classes of mail; (2) 19 C.F.R. § 145.2, which authorizes, inter alia, customs examination of “all mail arriving from outside the U.S. Virgin Islands which is to be delivered within the U.S. Virgin Islands”; and (3) United States Postal Service Domestic Mail Manual § 101.6.1, which provides that mail weighing over 13 ounces is “priority mail.” When considered in tandem, these three regulations authorized CBP officers to conduct the customs searches of the two packages here.18

Baxter argues that these provisions are invalid for three reasons: the regulations (1) were issued in the absence of proper notice and comment procedures, 5 U.S.C. § 553(b), (c); (2) are arbitrary and capricious, 5 U.S.C. § 706(2)(A); and (3) constitute a violation of the nondelegation doctrine. The Government vigorously disputes each of these claims.

Baxter concedes, as he must, that he never presented these claims to the District Court, and so the District Court was never given the opportunity to consider them. These arguments could and should have been presented to the District Court in the first instance. Because these issues were asserted for the first time on appeal, we deem them forfeited and will not consider them. See Gov’t of the V.I. v. Rosa, 399 F.3d 283, 291 (3d Cir. 2005).

III.

Border searches “have a unique status in constitutional law.” Ezeiruaku, 936 F.2d at 142 (quoting United States v. Vega-Barvo, 729 F.2d 1341, 1344 (11th Cir. 1984)). Indeed, the “longstanding recognition that regulation, first class mail and sealed letter class mail are subject to heightened requirements prior to customs inspection. See 19 C.F.R. § 145.3(b), (e). The packages at issue here did not qualify for the benefit of those heightened protections and therefore were subject to customs inspection under 19 C.F.R. § 145.2. searches at our borders without probable cause and without a warrant are nonetheless ‘reasonable’ has a history as old as the Fourth Amendment itself.” Ramsey, 431 U.S. at 619.

The searches of the two packages here, which occurred at the Virgin Islands customs border, were routine customs searches that were reasonable under the border-search exception to the Fourth Amendment. See Hyde, 37 F.3d at 122; Ezeiruaku, 936 F.2d at 143. Because the searches did not violate Baxter’s Fourth Amendment rights, the District Court erred by suppressing the fruit of those searches. We therefore will vacate the judgment and remand the matter to the District Court.