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.
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
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.
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).
Baxter moved to suppress the guns, claiming that CBP's warrantless searches of the two packages violated his Fourth Amendment rights.
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
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.
According to the District Court, 19 U.S.C. § 1467
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.
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.
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, 110 S.Ct. 2301, 110 L.Ed.2d 112 (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 acknowledged in Hyde that the Supreme Court has applied the border-search exception only when an international boundary "or its functional equivalent"
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
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 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.
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.
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.
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 "the traditional rationale for the border search exception applies as well in the outgoing border search context."
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, 97 S.Ct. 1972. 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."
Thus, under Ezeiruaku, the direction of travel does not impact the applicability of the border-search exception. The District Court erred in concluding otherwise.
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.
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).
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 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, 97 S.Ct. 1972.
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