The district court granted defendants' motion to suppress evidence seized by the Department of Commerce in a search of packages deposited in the mail by defendants' company for overseas shipment. On appeal the government contends that the court erred in holding that: (1) the search was not a valid "border search;" and, (2) the search was not within the "good faith" exception to the fourth amendment's exclusionary rule under United States v. Leon, --- U.S. ----, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). We affirm.

In 1982, the Department of Commerce ("Commerce") started to investigate Western Engineers, a Sacramento company owned by defendants George and Theodore Whiting. Commerce had learned that Western Engineers was exporting electronic components from the United States in violation of the Export Administration Act of 1979 ("EAA").1 Brooks Ohlson, an agent of the Department of Commerce, Office of Export Enforcement ("OEE"),2 who had been with the OEE for two months, was assigned to the matter.

By January 1983, OEE agent Ohlson determined that the Whitings were regularly shipping electronic components from Elk Grove, California to Switzerland without the export licenses required by the EAA. He then decided to inspect outgoing packages at the Elk Grove Post Office to determine if they contained licensable goods. The local postal authorities advised agent Ohlson that he needed a warrant to search the packages. Ohlson obtained this warrant from a Federal Magistrate based on Ohlson's affidavit which simply cited Commerce regulations. Ohlson then searched several packages mailed by Western Engineers and found assorted microcircuits and electronic components. Ohlson placed three of these packages in the Postal Inspector's vault in Sacramento. On January 14, 1983, Ohlson obtained a second warrant and seized several more packages.

Based on evidence obtained from these searches, Ohlson (along with other Commerce agents and a Federal Marshal) sought and obtained from a Federal Magistrate a search warrant for the Western Engineers business premises. A search there disclosed business records indicating illegal export of licensable commodities. Ohlson seized these records and at that time informed the Whitings of his previous seizures of packages mailed at the Elk Grove post office.

A federal grand jury indicted the Whitings for conspiracy, unlawful export of high technology electronic parts, and false statements to a federal agency. The Whitings moved the district court to suppress the evidence seized at the post office and at their business premises, contending that the Elk Grove package search warrants were invalidly issued and the business premises search warrant was overbroad.3 The government argued before the district court that the package search warrants were valid and, even if the warrants were invalid, the search at the post office was either a valid border search or one permissible under the "good-faith" exception to the fourth amendment's exclusionary rule stated in United States v. Leon, --- U.S. ----, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).4 The government stipulated at oral argument on the motion to suppress that if the post office package searches were invalid, the business premises search was also invalid under the "fruit of the poisonous tree" doctrine.5

The district court held that the package search warrants were invalid because OEE agent Ohlson was not a "law enforcement officer" authorized to obtain a search warrant under Fed.R.Crim.P. 41(a).6 The court further held that neither the EAA nor regulations promulgated thereunder authorized agent Ohlson to conduct a border search. Finally, the court ruled that the agent had not acted in "good faith" under Leon. Because of the government's stipulation, the court also invalidated the search of the business premises. The district court therefore granted defendants' motion to suppress.

On appeal, the government no longer contends that the package search warrants were valid; accordingly, both parties now treat the searches of the packages at the post office as "warrantless" searches.

A. Border Search.

1. Standard of Review.

A district court's ruling on the validity of a border search is reviewed de novo. United States v. Cardona, 769 F.2d 625, 628 (9th Cir.1985).

2. The "Border Search" Exception.

Searches at international borders require neither a warrant nor probable cause. United States v. Ramsey, 431 U.S. 606, 616-17, 97 S. Ct. 1972, 1978-79, 52 L. Ed. 2d 617 (1976); United States v. Soto-Soto, 598 F.2d 545, 548 (9th Cir.1979). Based on dicta in California Bankers Association. v. Schultz, 416 U.S. 21, 63, 94 S. Ct. 1494, 1518, 39 L. Ed. 2d 812 (1974), this circuit has extended the "border search" doctrine to searches of persons and things exiting the United States. See United States v. Duncan, 693 F.2d 971, 977 (9th Cir.1982), cert. denied, 461 U.S. 961, 103 S. Ct. 2436, 77 L. Ed. 2d 1321 (1983); United States v. Stanley, 545 F.2d 661, 665-67 (9th Cir.1976), cert. denied, 436 U.S. 917, 98 S. Ct. 2261, 56 L. Ed. 2d 757 (1978). This includes search and seizure of mail leaving the country. Cardona, 769 F.2d 625, 629.

3. Existence of Actual Border Not Required.

Elk Grove, located in the Eastern District of California, is clearly not an international border. A "border search," however, need not take place at the actual border. See Almeida-Sanchez v. United States, 413 U.S. 266, 272-73, 93 S. Ct. 2535, 2539, 37 L. Ed. 2d 596 (1973). Two separate doctrines extend border searches to points within the international boundary of the United States. The "functional equivalent" doctrine permits border searches at places other than the actual border where travelers functionally enter or exit the country. Almeida-Sanchez, 413 U.S. at 273, 93 S.Ct. at 2539; United States v. Duncan, 693 F.2d at 977. In addition, the "extended border" doctrine allows border searches to be conducted before or after the border is actually crossed. See, e.g., United States v. Caicedo-Guarnizo, 723 F.2d 1420, 1422 (9th Cir.1984). "Extended border" searches are thought to be more intrusive on an individual's legitimate expectation of privacy than searches at the actual border. Accordingly, such searches must be justified by "reasonable suspicion" that the subject of the search was involved in criminal activity. Cardona, 769 F.2d at 628-29; United States v. Alfonso, 759 F.2d 728, 734 (9th Cir.1985). While the distinction between the two doctrines is often blurred, Cardona, 769 F.2d at 628, the "extended border" doctrine is more appropriate in cases like the instant case where the search occurred long before the item searched actually crossed the border. Id. at 628-29 (extended border doctrine applies where package searched 3,000 miles from border and twenty-four hours before package was to leave the country); cf. Alfonso, 759 F.2d at 734 (search of boat some thirty-six hours after crossing border upheld under extended border analysis).

In Cardona, this court applied the "extended border" doctrine to a search similar to the one involved in the instant case. There, a United States Customs agent searched a parcel delivered to Federal Express in Bell, California for eventual delivery to Colombia. The court upheld the search under the extended border doctrine, noting that "[w]hen the parcel was placed in the custody of Federal Express, it was all but certain that the parcel's condition would remain unchanged until it crossed the United States border." 769 F.2d at 629. The court also noted that reports of criminal activity and the agent's observations established reasonable suspicion that the parcels contained illegally exported items. Id.

This case is essentially indistinguishable from Cardona. Although Elk Grove is far from an international border7 and the packages shipped by Western Engineers would go through two domestic post offices before leaving the country for Switzerland, the search of the packages, under the extended border doctrine as enunciated in Cardona, occurred at a "border."8 Further, agent Ohlson had reasonable suspicion, based on reports of illegal shipments and his own investigation, that the Whitings were shipping goods in violation of the EAA. The district court therefore correctly ruled that the search occurred at the border.

4. Authority to Conduct Warrantless Border Searches.

A warrantless border search is valid only if conducted by officials specifically authorized to conduct such searches. United States v. Soto-Soto, 598 F.2d 545, 548-50 (9th Cir.1979). This court has upheld warrantless border searches conducted by the United States Customs Service ("Customs"), Border Patrol, and Coast Guard.9 Id. at 549. A thorough analysis of the EAA and its administrative regulations is necessary to determine whether OEE agents such as Ohlson are similarly authorized to conduct warrantless border searches.

The EAA itself does not expressly provide search and seizure authority.10 The search and seizure provisions relevant to this case are found in regulations promulgated under EAA by the Secretary of Commerce ("export regulations"). 15 C.F.R. Sec. 386.8(a), entitled "Delegation of authority to customs offices and postmasters", provides:

Customs offices and postmasters, including all customs and post office officials, are authorized and directed to take appropriate action to assure observance of the provisions of the Export Administration Regulations and of general and validated licenses issued thereunder. This includes, but is not limited to inspection of commodities and technical data being exported or about to be exported. The functions delegated to customs offices and postmasters by this paragraph may also be carried out by officials of the Office of Export Enforcement.

(Emphasis added.) Paragraph (b) of section 386.8 describes "[t]ypes of actions which may be taken by customs offices." Among these are examination of "commodities and technical data declared for export." Sec. 386.8(b)(1). Further, section 386.8(b)(6) provides: "The customs office is authorized under [22 U.S.C. Sec. 40111] to seize and detain any commodities [exported or suspected of being exported in violation of the EAA]." (Emphasis added.)

The government argues that section 386.8(a) gives to the OEE the search and seizure authority granted to Customs in section 386.8(b)(6). The search and seizure authority of section 386.8(b), however, is expressly limited to the "customs office." The section simply acknowledges existing search authority of Customs. Specifically, section 386(b)(6) refers to the border search authority already granted Customs in 22 U.S.C. Sec. 401; it does not actually grant such authority to Customs. Moreover, section 386.8(a)'s delegation to the OEE of authority held by Customs is limited to those functions "delegated by this paragraph." This would seem to limit the OEE's authority to conducting an "inspection" under section 386.8(a) and would not extend to the search and seizure provisions of section 386.8(b). Nowhere in the EAA or the export regulations is the OEE expressly given the power to conduct border searches.

The conclusion that the OEE is not authorized to conduct warrantless border searches is supported by recent amendments to the EAA found in the Export Administration Amendments Act of 1985, Pub.L. No. 99-64, Aug. 1985 U.S.Code Cong. & Ad.News (99 Stat.) 120.12 This Act extensively amended the vague enforcement provisions of 50 U.S.C.App. Sec. 2411. Revised section 2411 specifically extends search and seizure authority only to Customs; the OEE is delegated other authority.13

Thus, a fair reading of the EAA, the export regulations, and Congress' recent express delegation of search and seizure authority to Customs indicates that OEE agent Ohlson did not have authority to search and detain the packages at the Elk Grove post office. The district court correctly ruled that Ohlson's search and seizure of the packages was an unauthorized, and therefore an invalid, border search.14 See Soto-Soto, 598 F.2d at 550.

B. "Good Faith" Exception.

1. Standard of Review.

The issue whether the "good-faith" exception to the fourth amendment's exclusionary rule might apply to this case involves the selection of a rule of law and is thus reviewed de novo. See United States v. McConney, 728 F.2d 1195, 1200 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S. Ct. 101, 83 L. Ed. 2d 46 (1984).

In United States v. Leon, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), the Supreme Court established the so-called "good faith exception" to the exclusionary rule. The Court held that evidence obtained pursuant to a search warrant issued by a neutral magistrate later invalidated for lack of probable cause should not be suppressed if the searching officer acted in reasonable reliance on the warrant. Leon, 104 S. Ct. at 3421-22 (1984); United States v. Merchant, 760 F.2d 963, 968 (9th Cir.1985). The government argues that even if the search of the packages at the post office was not a valid border search because the OEE lacked authority to conduct such searches, the evidence obtained from the search is admissible under Leon because Ohlson reasonably believed that the export regulations authorized his search.

Leon, however, expressly involved good faith reliance on a warrant issued by a judicial officer later held to be unsupported by probable cause. As noted above, the government treats the search of the packages in this case as a "warrantless" search. It therefore does not assert that Ohlson reasonably relied on the warrants invalidated because Ohlson was not an authorized "law enforcement officer." The government apparently recognizes that Leon does not apply to search warrants issued to people who are not permitted to obtain such warrants.

Rather than asserting that Ohlson reasonably relied on a warrant, the government argues that Leon applies because of Ohlson's reliance on the export regulations. The government, relying on general language in Leon which talks about weighing the benefits of suppression against its costs,15 apparently suggests that a "good-faith" exception applies to all illegal searches. The Leon exception, however, is clearly limited to warrants invalidated for lack of probable cause and does not create the broad "good faith" exception the government suggests. See Leon, 104 S. Ct. at 3419-24. The Leon rule should therefore not be applied to invalid warrantless searches. See United States v. Miller, 769 F.2d 554, 560 n. 5 (9th Cir.1985) ("We do not see how [Leon's] good faith exception for reasonable reliance on invalid warrants has any application to the warrantless search involved in the instant case"); United States v. Morgan, 743 F.2d 1158, 1165 (6th Cir.1984), cert. denied, 105 S. Ct. 2126, 85 L. Ed. 2d 490 (1985) (refusing to extend Leon to a warrantless search which the government argued fell under the "exigent circumstances" exception); see also Merchant, 760 F.2d at 968 n. 6 ("In analyzing this case under Leon, we do not suggest that the good faith exception applies beyond the warrant context").16

While the Elk Grove, California post office is properly considered a border under the "extended border" doctrine, OEE agent Ohlson's warrantless search of the packages mailed by Western Engineers was an unauthorized border search. The Export Administration Act does not give the Department of Commerce agents the power to conduct border searches; rather, the Act and regulations thereunder only grant Commerce the authority to inspect. While the scope of this authority is unclear, it does not encompass the search and seizure of outgoing packages.17 The government's claim of "good faith" is unavailing because Leon does not apply to warrantless border searches and, in any event, Ohlson did not act in good faith because a reasonable OEE agent would have known that he or she had no authority to conduct such a search. Accordingly, the district court properly suppressed the evidence.

AFFIRMED.