CURTIS V. GÓMEZ, District Judge.
Before the Court is the motion of Steven Baxter to suppress physical evidence.
On March 31, 2017, Customs and Border Protection ("CBP") officers were inspecting incoming mail at the Cyril E. King Airport on St. Thomas. Bo—a K9 certified to alert to the odor of marijuana, cocaine, heroin, methamphetamine, ecstasy, and concealed humans—was smelling packages on an arriving flight at the airport. Bo's handler, Joseph Lopez ("Lopez"), was present. Bo alerted to a package sent by Priority Mail.
After hearing evidence, the Court asked the United States why no warrant was sought to search the packages:
Id. at 116:4-14.
On April 3, 2017, CBP officers discovered another package sent by Priority Mail from Jason Price in South Carolina to Mekelya Meade in St. Thomas. The April 3, 2017, package was similar in shape, size, and weight to the March 31, 2017, package. CBP officers x-rayed the package and concluded that it contained a firearm. Thereafter, the package was opened and examined. Inside the package, Kouns discovered a firearm, a magazine, and ammunition. Curiously, after opening the box, Kouns then had Bo sniff the package. See id. at 89:12-90:7
On June 7, 2017, the Grand Jury returned an Indictment charging Steven Baxter ("Baxter") with one count of illegally transporting two firearms in violation of 18 U.S.C. §§ 922(a)(5), 924(a)(1)(D), and 924(a)(2). On March 8, 2018, the Grand Jury returned a Superseding Indictment charging Baxter with two counts of illegally transporting a firearm in violation of 18 U.S.C. §§ 922(a)(5), 924(a)(1)(D), and 924(a)(2).
On March 26, 2018, Baxter moved to suppress the evidence uncovered by the search of the packages. The Court held an evidentiary hearing on Baxter's motion to suppress on June 4, 2018.
The Fourth Amendment protects citizens from "unreasonable searches and seizures" of "their persons, houses, papers and effects." U.S. Const., amend. IV. The Fourth Amendment protects citizens from governmental intrusions into areas in which citizens have a "reasonable expectation of privacy." See, e.g., Byrd v. United States, 138 S.Ct. 1518, 1526, 200 L. Ed. 2d 805 (2018). "A `search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed." United States v. Jacobsen, 466 U.S. 109, 113 (1984).
The United States asserts that the packages in this matter were "sent from a Jason Price and addressed to Mekelya Meade." See ECF No. 155 at 2. The United States argues that—because the packages do not "bear[] his name" and because, "by his not guilty plea, [Baxter] denies an ownership interest" in the packages—Baxter has no legitimate expectation of privacy in the packages. See id.
"Standing to challenge a search requires that the individual challenging the search have a reasonable expectation of privacy in the property searched." Rakas v. Illinois, 439 U.S. 128 (1978). "Fourth Amendment rights are personal rights, which, like some other constitutional rights, may not be vicariously asserted." Id. at 133-34 (quoting Alderman v. United States, 394 U.S. 165, 174 (1969)). "A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." Id. at 134; see also United States v. Davis 393 Fed. App'x 895, 898 (3d Cir. 2010).
"Both senders and addressees of packages or other closed containers can reasonably expect that the government will not open them." United States v. Villarreal, 963 F.2d 770, 774 (5th Cir. 1992). The Third Circuit has recognized that "individuals may assert a reasonable expectation of privacy in packages addressed to them under fictitious names." United States v. Pettiway, 429 Fed. App'x 132, 136 n.5 (3d Cir. 2011) (quoting Villarreal, 963 F.2d at 774).
Here, the United States acknowledges that Baxter is also known as Jason Price. See Indictment, ECF No. 70 at 1, 3, 5 (charging "STEVEN BAXTER a/k/a JASON PRICE" with illegally mailing firearms). The United States alleges that Baxter, using his alias Jason Price, mailed the packages at issue in this matter. Presumably, the packages are relevant because they are Baxter's. That is precisely why the United States seeks to use the packages against Baxter in the United States's case-in-chief. Under these circumstances, the Court holds that Baxter has standing to challenge the admissibility of the packages. As Baxter has standing to challenge the warrantless searches of the packages, the Court will next address the validity of the warrantless searches that occurred here.
"Warrantless searches are presumptively unreasonable." Horton v. California, 496 U.S. 128, 133 (1990); see also Katz v. United States, 389 U.S. 347, 357 (1967) ("Searches conducted without warrants have been held unlawful `notwithstanding facts unquestionably showing probable cause.'" (quoting Agnello v. United States, 269 U.S. 20, 33 (1925)). Moreover, it is irrelevant whether a search impermissibly conducted without a warrant ultimately uncovers evidence of a crime. See Jacobsen, 466 U.S. at 113 ("Such a warrantless search could not be characterized as reasonable simply because, after the official invasion of privacy occurred, contraband is discovered.").
Article I, Section 8 of the U.S. Constitution grants Congress the power "[t]o establish Post Offices and post Roads." U.S. Const., Art. I, § 8, cl. 7. This grant of power "embraces the regulation of the entire postal system of the country," which "necessarily involves the right to determine what shall be excluded" from the mails. Ex parte Jackson, 96 U.S. 727, 728 (1877).
Since as early as 1877, in Ex parte Jackson, 96 U.S. 727 (1877), the United States Supreme Court has recognized that this power does not remove mail from the protection of the Fourth Amendment. See id. In determining the reach of the Fourth Amendment to mailed matter,
Id. at 733.
In light of that strong protection afforded to sealed mail packages against searches, the Supreme Court made it clear that such packages were accorded the same Constitutional protection as items in a home. That is, only a warrant could justify the search of a mail package.
Id. (emphasis added).
Moreover, the Jackson Court clearly outlined the limits of any other law that might purport to subjugate the Constitutional protection afforded sealed packages against searches.
Id. (emphasis added).
The Supreme Court reaffirmed these principles in United States v. Van Leeuwen, 397 U.S. 249 (1970) and again in United States v. Jacobsen, 466 U.S. 109 (1984). In Van Leeuwen, customs officials suspected that two packages contained gold coins that had been illegally imported from Canada. 397 U.S. at 249-50. The packages in question were mailed first-class. Id. at 250. Postal regulations in effect at the time "describe[d] `first-class' mail as `matter closed against postal inspection,' which follow[ed] the definition" in the relevant statute. Id. at 250 n.1. The packages were briefly detained while customs officials obtained a warrant to search them. Id. at 250, 252. Only when warrants were issued did customs officials inspect the contents of the packages. Id. at 250. On appeal, the Supreme Court held that the pre-search detention of the packages was permissible under the Fourth Amendment. Id. at 253.
The Supreme Court explained that "[i]t has long been held that first-class mail such as letters and sealed packages subject to letter postage—as distinguished from newspapers, magazines, pamphlets, and other printed matter—is free from inspection by postal authorities, except in the manner provided by the Fourth Amendment." Id. at 251. Analogizing the seizure of mail to a Terry frisk, the Supreme Court explained that "[t]he only thing done [by the customs officials] on the basis of suspicion was detention of the packages." Id. at 252. This did not occasion any "invasion of the right `to be secure' in the `persons, houses, papers, and effects' protected by the Fourth Amendment against `unreasonable searches and seizures.'" Id. (quoting U.S. Const., amend. IV). While in "theory" "detention of mail could at some point become . . . unreasonable," the detention in Van Leeuwen was reasonable under the Fourth Amendment. Id. Significantly, law enforcement did not search the sealed package until they obtained a search warrant.
In Jacobsen, a package was damaged and torn by a forklift. The package was in the care of a private freight carrier. 466 U.S. at 111. Employees of the freight carrier opened the package and discovered a white powdery substance. Id. The employees notified federal law enforcement officials, who tested the substance, which was revealed to be cocaine. Id. On appeal, the Supreme Court held that the search did not violate the Fourth Amendment. Id. at 126.
The Fourth Amendment protects individuals' right "to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures." See U.S. Const., amend. IV.
Jacobsen, 466 U.S. at 114 (footnotes omitted).
Significantly, however, the Fourth Amendment only "proscrib[es] government action; it is wholly inapplicable `to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.'" Id. at 114 (quoting Walter v. United States, 447 U.S. 649, 662 (1980) (Blackmun, J., dissenting)). In Jacobsen, "[t]he initial invasions of respondents' package were occasioned by private action," and therefore did not violate the Fourth Amendment. Id. at 115. The permissibility of the government's subsequent actions "must be tested by the degree to which [those actions] exceeded the scope of the private search." Id. In that case, the Supreme Court held that the government's actions did not violate any expectation of privacy that had not already been frustrated by the private freight carrier, and thus did not violate the fourth amendment. Id. at 126.
As the cases cited above illustrate, not all packages require a warrant prior to being searched. As the Supreme Court in Ex parte Jackson instructed, "a distinction is to be made between different kinds of mail matter,—between what is intended to be kept free from inspection, such as . . . sealed packages,. . .; and what is open to inspection, such as . . . printed matter, purposely left in a condition to be examined." Ex parte Jackson, 96 U.S. at 733.
To that end, Congress directed the Postal Service to "maintain one or more classes of mail for the transmission of letters sealed against inspection." 39 U.S.C. § 404(c) ("Section 404"). Congress has further made clear that any mail designated as "sealed against inspection" may only be opened "under authority of a search warrant authorized by law, or by an officer or employee of the Postal Service for the sole purpose of determining an address at which the letter can be delivered, or pursuant to the authorization of the addressee." Id.
In accordance with Congress's mandate, the Postal Service regulations provide that "[s]ealed mail is mail that under postal laws and regulations is included within a class of mail maintained by the Postal Service for the transmission of letters sealed against inspection." 39 C.F.R. § 233.3(c)(3). "Unsealed mail is mail that under postal laws or regulations is not included within a class of mail maintained by the Postal Service for the transmission of letters sealed against inspection." 39 C.F.R. § 233.3(c)(4). "Sealed mail includes," among other classes of mail, "Priority Mail." 39 C.F.R. § 233.3(c)(3).
Similarly, through 39 C.F.R. § 111.1, the Postal Service incorporated into the regulations by reference "the Mailing Standards of the United States Postal Service, Domestic Mail Manual, a looseleaf document published and maintained by the Postal Service." 39 C.F.R. § 111.1. The Domestic Mail Manual provides that "Priority Mail matter is closed against postal inspection." Domestic Mail Manual § 113.2.2.
Here, the packages were mailed from South Carolina to the United States Virgin Islands via Priority Mail. Upon the arrival of the packages in the Virgin Islands, CBP officers searched the packages without a warrant. The government seems to have taken this course because, among other things, the packages did not bear some indication that they were first-class mail or a letter.
Suppression Hr'g Tr., ECF No. 99 at 43:8-17. In the absence of a stamp or some indication that the class of mail is first-class, the government, since perhaps 2012, has subjected sealed packages to warrantless searches.
Id. at 33:13-25.
The government's position not only seems to be contrary to well-established Constitutional law, see, e.g., Jacobsen, 466 U.S. at 114 (recognizing "wrapped parcel" containing white powdery substance as "unquestionably an `effect' within the meaning of the Fourth Amendment"), remarkably it is even contrary to the regulations regarding sealed mail packages. See Domestic Mail Manual § 113.2.2 (""Priority Mail matter is closed against postal inspection."). Because Priority Mail is the equivalent of a "wrapped parcel" sealed against inspection, law enforcement officers were required to obtain a warrant before opening the packages. Accordingly, their failure to obtain a warrant was unconstitutional. Indeed, such a warrantless search could only be constitutionally permissible if an exception to the warrant requirement applied to the searches undertaken here.
"Searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established exceptions." Katz, 389 U.S. at 357. "Such exceptions are based on the Supreme Court's determination that a particular search is reasonable, that is, that the government's legitimate interests in the search outweigh the individual's legitimate expectation of privacy in the object of the search." United States v. Salmon, 944 F.2d 1106, 1120 (3d Cir. 1991); see also United States v. Hyde, 37 F.3d 116, 118 (3d Cir. 1994). Warrantless border searches are one such exception. California Bankers Ass'n v. Shultz, 416 U.S. 21, 63 (1974) ("[T]hose entering and leaving the country may be examined as to their belongings and effects, all without violating the Fourth Amendment."); see also Hyde, 37 F.3d at 118.
In United States v. Ramsey, 431 U.S. 606 (1977), the United States Supreme Court recognized that sealed envelopes originating in another country and entering the United States fell within the border exception. Indeed, in that case, the Supreme Court counseled that
Id. at 620; cf. United States v. Hyde, 37 F.3d 116 (3d Cir. 1994).
To the extent the sealed packages crossed an international border; that is, in either direction between non-United States territory and United States territory, arguably the packages may not be an "effect" protected by the Fourth Amendment. The Court will next address border issues implicated by the searches here, as well as other circumstances that may allow for warrantless searches.
Here, CBP officers subjected packages mailed from South Carolina to the Virgin Islands to warrantless searches. South Carolina assuredly is not a foreign country, such that sealed mail from that state would ordinarily be subject to warrantless search. Thus, the Priority Mail packages in this case that originated in South Carolina are sealed domestic mail. See Domestic Mail Manual § 113.2.2. Second, they remain protected from a warrantless search unless their native inviolate character is transformed by some intrusive search by a non-government agent, e.g., Jacobsen 466 U.S. at 115, or they are transferred to a foreign territory, see Ramsey, 431 U.S. at 620. If neither of these circumstances occurred, the Priority Mail packages here should be free from warrantless searches. If neither circumstance occurred and a search is permissible, arguably the Fourth Amendment does not apply in the United States Virgin Islands. Alternatively, it is arguable that some hybrid form of the Fourth Amendment exists in the Virgin Islands, the legal vestiges of which are a version that (1) is devoid of the normal Fourth Amendment Constitutional protections highlighted by the Supreme Court in Ex parte Jackson; and (2) lacks any reliable and predictable vigor. The Court addresses each potential transformative circumstance in turn.
The record indicates that the searches here were undertaken solely by government officials. Thus, the searches do not fall into the category of searches conducted by private actors (independent of government direction), like that in Jacobsen, that escape Fourth Amendment scrutiny.
The packages at issue here were mailed from the mainland to the Virgin Islands. They never left United States territory. Unless some other legally transformative event occurred, a warrantless search of the Priority Mail packages here would be unconstitutional. Indeed, if the sealed packages here were destined for Puerto Rico, there is little dispute that the packages would be protected from warrantless searches. United States v. Colon-Solis, 508 F.Supp.2d 186, 191 n.2 (D.P.R. 2007) (discussing "well-established principle that shipments to and from Puerto Rico are not subject to inspection under the border exception to the Fourth Amendment"). The United States has indicated as much in its supplemental briefing on Baxter's motion to suppress. See ECF No. 155 at 1 ("The Court's initial inquiry posed two questions. The first question is whether Customs and Border protection can search mail arriving in Puerto Rico from the mainland United States without first obtaining a warrant. The government's answer is no."); see also Krystal Cadillac-Oldsmobile GMC Truck, Inc. v. Gen. Motors Corp., 337 F.3d 314, 319 (3d Cir. 2003) ("[A] plaintiff, who has obtained relief from an adversary by asserting and offering proof to support one position, may not be heard later in the same court to contradict himself in an effort to establish against the same adversary a second claim inconsistent with his earlier contention." (internal quotation marks omitted)). That position is not surprising, as Puerto Rico is a territory of the United States. A person or thing traveling from the mainland United States to Puerto Rico leaves United States territory and arrives in United States territory. Given that circumstance, it would seem that, constitutionally, a warrantless search of the packages here may be permissible if, unlike a package arriving in Puerto Rico, arrival in the Virgin Islands was the legal equivalent of arrival in a non-United States territory.
This Court recently addressed the domestic nature of the United States Virgin Islands in the context of a tariff law. In United States v. Ten Thousand Six Hundred & Seventy-Seven Dollars ($10,677.00) in U.S. Currency, Representing 5,419 Puerto Rican Lottery Tickets, No. CV 2016-12, 2018 WL 2745903, at *4 (D.V.I. June 7, 2018) (the "Puerto Rican Lottery Case"), this Court was confronted with the question of whether the United States Virgin Islands was a "foreign country" under 19 U.S.C. § 1305(a) ("Section 1305"), which provides that "[a]ll persons are prohibited from importing into the United States from any foreign country . . . any lottery ticket." See 19 U.S.C. § 1305(a).
In the Puerto Rican Lottery case, the Court reasoned:
Id. at *4. In addition to the plain language of the statute, the Court also found that "[r]elevant caselaw pre-dating the passage of 19 U.S.C. § 1305(a) also supports the conclusion that the Virgin Islands is not a foreign country." Id. at *6. The Court explained:
Id.
While not directly on point, the reasoning in the Puerto Rican Lottery Case provides some guidance here on the question of whether the United States Virgin Islands is non-United States territory for Fourth Amendment purposes, such that it should be treated differently than Puerto Rico with respect to warrantless searches of sealed packages travelling from the United States mainland to a well-established United States territory.
While the Virgin Islands is "[o]bviously . . . not a `foreign country,'" it is not a state. Vento v. Dir. of Virgin Islands Bureau of Internal Revenue, 715 F.3d 455, 466 (3d Cir. —). Rather, the Virgin Islands is "an unincorporated territory of the United States." Ballentine v. United States, 486 F.3d 806, 811 (3d Cir. 2007). The Third Circuit has opined that "[a]n unincorporated territory is one that is not nearing statehood and whose subjects do not enjoy full constitutional guarantees. For example, Virgin Islands residents are not permitted to vote in presidential elections, although they are U.S. citizens. They are represented in Congress by a single non-voting delegate." Vooys, 901 F.3d at 177 n.10 (citations omitted). The Fourth Amendment, however, is not among the constitutional guarantees denied to Virgin Islanders. See 48 U.S.C. § 1561 (providing that "the first to ninth amendments inclusive" "shall have the same force and effect there as in the United States or in any State of the United States").
Indeed, it is well-settled that "[t]he Fourth Amendment applies in the United States Virgin Islands." United States v. Mathurin, 561 F.3d 170, 174 n.3 (3d Cir. 2009); see also Boumediene v. Bush, 553 U.S. 723, 758 (2008) (explaining that, "as early as . . . 1922, the [U.S. Supreme] Court took for granted that even in unincorporated Territories the Government of the United States was bound to provide to noncitizen inhabitants `guaranties of certain fundamental personal rights declared in the Constitution.'" (quoting Balzac v. Porto Rico, 258 U.S. 298, 312 (1922)); Soto v. United States, 273 F. 628, 633 (3d Cir. 1921) (explaining that after the United States acquired the United States Virgin Islands, "the fundamental law of the Constitution guaranteeing certain rights to all within its protection," namely the law securing "natural or personal rights" that are "enforced . . . by prohibition against interference," applied of its own force).
The Court will next consider whether, in spite of the United States Virgin Islands's status as a United States Territory, there is nevertheless some type of border that would justify warrantless searches on persons and things traveling from the mainland United States to the United States Virgin Islands.
To appreciate the underpinnings that should inform any border or customs zone discussion involving the Virgin Islands, a brief review of some Virgin Islands history is warranted.
On April 1, 1914, Christian the Tenth, King of Denmark, the Vandals and the Goths, Duke of Slesvig, Holstein, Stormarn, Ditmarsh, Lauenborg, and Oldenborg, sanctioned Danish Law No. 64-1914. Section 1 of that law, in pertinent part, provides:
Act No. 64-1914, concerning Custom House and Ships Dues in St. Thomas and St. Jan, § 1 (Apr. 1, 1914), reprinted in 1 V.I.C., Historical Documents, Organic Act of 1936. In accord with Danish Law No. 64-1914, an ordinance of the Colonial Council of St. Thomas and St. Jan, approved on August 6, 1914, provided guidance for the imposition and collection of import duties. Colonial Council of St. Thomas and St. Jan Ordinance of August 6, 1914 (Aug. 6, 1914), reprinted in 1 V.I.C., Historical Documents, Organic Act of 1936. Section 29 of the Ordinance provided, in pertinent part, that
Id. at § 29.
"When the United States purchased the Virgin Islands from Denmark in 1917, laws were already in place which provided for Customs duties to be levied upon goods coming into the Virgin Islands, with the revenue going to the colonial treasury." Paradise Motors, Inc. v. Murphy, 892 F.Supp. 703, 704 (D.V.I. 1994) (quoting United States v. Chabot, 19 V.I. 28, 37, 531 F.Supp. 1063, 1069 (D.V.I. 1982)). After purchasing the Virgin Islands, Congress passed the Organic Act of 1917 (the "1917 Organic Act"). Section 4 of that act, codified at 48 U.S.C. § 1395, provides in relevant part that "the customs laws and regulations" in the Virgin Islands in effect before the purchase would "continue in force and effect."
In 1936, Congress passed the Organic Act of 1936 (the "1936 Organic Act"). Section 36 of that act, codified at 48 U.S.C. § 1406i, provides in relevant part that, "[u]ntil Congress shall otherwise provide, all laws concerning import duties and customs in the municipality of Saint Thomas and Saint John now in effect shall be in force and effect in and for the Virgin Islands." Pub. L. No. 74-749, § 36, 49 Stat. 1816 (1936). Section 36 also directed the Secretary of the Treasury to "designate the several ports and sub-ports of entry in the Virgin Islands of the United States and shall make such rules and regulations and appoint such officers and employees as he may deem necessary for the administration of the [local] customs laws in the Virgin Islands of the United States." Id.
In 1954, Congress passed the Revised Organic Act. The Revised Organic Act did not speak to the Danish custom laws addressed in Section 36 of the 1936 Organic Act and Section 4 of the 1917 Organic Act. Section 8 of the Revised Organic Act, codified at 48 U.S.C. 1574, provided, however, that the "laws made applicable to the Virgin Islands by or pursuant to the [1936 Revised Organic] Act . . . and all local laws and ordinances in force in the Virgin Islands . . . on the date of approval of this Act shall, to the extent they are not inconsistent with this Act, continue in force and effect." Pub. L. No. 83-517, § 7(c), 68 Stat 501 (1954). As such, Section 36 of the 1936 Organic Act remains in effect. See, e.g., Polychrome Int'l Corp. v. Krigger, 5 F.3d 1522, 1534 n. 29 (3d Cir. 1993). Under Section 28 of the Revised Organic Act, the "proceeds of customs duties, . . . less the cost of collecting such duties," were to "be covered into the treasury of the Virgin Islands."
In 1977, Congress amended Section 8 of the Revised Organic Act and added a subsection (f). See Pub. L. No. 95-134 (HR 6550), § 301(c), 91 Stat 1159 (1977). Subsection (f) provides:
Id.; see also 48 U.S.C. § 1574(f).
Under this authority, the Government of the Virgin Islands enacted 33 V.I.C. § 525 ("Section 525"). Section 525 provides:
33 V.I.C. § 525. In addition, while the Virgin Islands repealed all Danish laws when it adopted the Virgin Islands Code, it exempted "the `Law concerning Custom House and Ship Dues in St. Thomas and St. Jan'" from that repeal. See 1 V.I.C. § 6.
As discussed above, Section 36 of the 1936 Organic Act directed the Secretary of the Treasury to "make such rules and regulations and appoint such officers and employees as he may deem necessary for the administration of the customs laws in the Virgin Islands of the United States." 48 U.S.C. § 1406i. Pursuant to that direction, the Secretary of the Treasury promulgated 19 C.F.R. § 7.2. That regulation, in relevant part, provides:
19 C.F.R. § 7.2(c); see also Virgin Islands Port Auth. v. United States, 136 Fed. Cl. 7, 8-9 (2018) ("As a part of the Treasury Department, CBP's authority to administer customs law in the Virgin Islands derives from the 1936 Revised Organic Act which designated the Secretary of Treasury as administrator of Virgin Islands customs law."); United States v. Wray, No. CR. 2002-53, 2002 WL 31628435, at *3 (D.V.I. June 17, 2002) ("[T]he executive branch maintains jurisdiction over the administration of customs laws within the Virgin Islands by virtue of the language of section 36 of the 1936 Organic Act.").
As authorized by Congress, the Government of the Virgin Islands imposes duties on many items of foreign origin that may be imported into the United States Virgin Islands. See 33 V.I.C. § 525 (authorizing collection of customs duty on "any article of foreign origin imported into the Virgin Islands[,] which . . . has been shipped from within the United States Customs Zone," in addition to duties collected in the United States). An obligation to pay customs duties arises when certain items cross from the mainland United States into the United States Virgin Islands. Arguably then, some type of border—or an approximation of one—exists between the United States Virgin Islands and the rest of the United States with respect to items of foreign—that is, non-United States—origin leaving the mainland and entering the Virgin Islands. Significantly, however, while the enforcement of Virgin Islands customs laws is assisted by federal officials, the customs laws with respect to imported goods are not federal but territorial laws. See Pollard, 326 F.3d at 401; Hyde, 37 F.3d at 121. While routine warrantless border searches would aid in enforcing the custom laws of the Virgin Islands, the interest of the United States in the enforcement of territorial law is certainly no greater than the interest of the United States in enforcing its own Constitution.
Moreover, there is no Supreme Court authority that supports the proposition that recognition, or imposition, of a tax, impost, or duty on sealed items traveling from a State into a United States territory creates a border between the United States territory and the State, at which border there is no Fourth Amendment protection that attaches to the individual whose sealed package travels from the State to the United States Territory.
To be sure, there is appellate authority recognizing the exclusion of the Virgin Islands from the United States customs zone. See Hyde, 37 F.3d at 122. The Third Circuit has not extended this recognition to items traveling from the mainland to the United States Virgin Islands. Indeed, the government has directed the Court to no such authority; and the Court is aware of none.
Further, no authority has acknowledged that the primary purpose of the customs zone exclusion was to create a vehicle for revenue enhancement in the then newly acquired Virgin Islands and its developing economy. Yet, that is precisely what the relevant legislative history indicates. See Anti-Smuggling Act: Hearings on H.R. 5496 Before the Comm. on Ways and Means, 74th Cong. 61 (1935) ("MR. HILL. Why are the Virgin Islands excepted [from the tariff act's definition of the `United States']? MR. MURPHY. The duties in the Virgin Islands are collected under the old Danish law. At the time the Virgin Islands came over to us that law was in effect. The collection of duties, of course, comes under this Government, but the old law remained in effect, and the duties go to the islands themselves."); H. Rep. No. 1505, at 6 (1917) (explaining that provision in 1917 Organic Act leaving Danish customs laws in effect was intended to raise "import duties to support the government of the islands"). Indeed, in 1914, the import duty was conceived as a tool to augment and support the then-Danish "Colonial Treasury." Thereafter, when Congress continued collection of the import duty, through the mechanism of a customs zone exclusion, it was a device to support the local Virgin Islands economy. It is beyond peradventure that Congress did not conceive of the customs zone exclusion as a device to weaken "fundamental personal rights guaranteed in the Constitution," Boumediene, 553 U.S. at 758 (internal quotation marks omitted), such as those enshrined in the Fourth Amendment. The Court is aware of no organic Congressional decision or enactment about the Virgin Islands suggesting that the customs zone exclusion was to be a vehicle for a diminished view of Constitutional protections afforded sealed items sent from the mainland to the Virgin Islands, and the government has cited none.
Finally, the rationale for a border, and the border search exception, is to keep out of the United States, or protect against, those things which are outside of its border. See United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985) ("Since the founding of our Republic, Congress has granted the Executive plenary authority to conduct routine searches and seizures 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."). Recognizing that purpose, the Supreme Court has counseled:
Ramsey, 431 U.S. at 620 (emphasis added).
It is axiomatic that those things that originate in, and stay within, the territory of the United States remain free from border searches.
Accordingly, the Court will grant Baxter's motion to suppress.
The Fourth Amendment of the United States Constitution has protected individuals from unreasonable warrantless searches since its existence. That protection has been recognized by the United States Supreme Court as extending to sealed mail among and between United States residents within United States territory. The circumstances giving rise to this case— warrantless searches of sealed mail packages sent from the United States mainland to the United States Virgin Islands— raise several questions.
First, does the Fourth Amendment apply in the United States Virgin Islands? For almost a century, this Court has addressed challenges to alleged violations of the Fourth Amendment by law enforcement.
Second, to the extent that the Fourth Amendment applies in the United States Virgin Islands, does it exist in some hybrid form such that its protections fade, to some degree, merely because a sealed package originating in the United States mainland arrives in the United States Virgin Islands? The position taken by law enforcement here suggests that a Congressional act or administrative procedure that excludes the United States Virgin Islands from the United States Customs Zone does so in a way that denatures the Fourth Amendment such that its full protection, which exists for citizens that send sealed packages from the mainland to Puerto Rico,
The Court is not persuaded that the Constitution supports such a position. See, e.g., Marbury v. Madison, 5 U.S. 137, 180 (1803) ("[A] law repugnant to the constitution is void; . . . courts, as well as other departments, are bound by that instrument." (emphasis omitted)). Indeed, the Fourth Amendment is pregnant with protection against warrantless searches of citizens and their effects, including sealed packages, houses, papers and effects.
To the extent that the government engages in warrantless searches because it is tactical to do so, as it has indicated in this case and a related case, see Suppression Hr'g Tr., ECF No. 99 at 116:4-14 ("THE COURT: . . . Why not get a warrant to just search [packages] and avoid all of this? MS. VLASOVA: Your Honor, as law enforcement strategy and tactic . . . .");
Suppression Hr'g Tr., Crim. No. 1:17-11, ECF No. 85 at 4:23-5:1 ("Q: Was there a specific target that was causing you to perform this search? A: No, ma'am. Just doing everything at random."), it elevates expediency over the Constitution in a way it admittedly would never do in a state or Puerto Rico, and it does so unlawfully. Where that happens it is worth recalling the Supreme Court's admonition:
Almeida-Sanchez, 413 U.S. at 273. Finally, the sine qua non for a border search is that the item enter the country from without. That threshold condition never occurred. In sum, where, as here, law enforcement conducts warrantless searches of sealed packages sent from the United States mainland to the United States Virgin Islands, law enforcement runs afoul of the Constitution.
The premises considered, it is hereby
Suppression Hr'g Tr., ECF No. 99 at 21:2-12. Alternatively, it seems that whenever Bo incorrectly alerts, Lopez is willing to take the blame by attributing the error to human interpretation.
Id. at 31:5-11. In either case, false positives which could trigger warrantless searches could result.
As for the individual's interest in privacy, the Third Circuit found this was limited in the same manner as with the international border. Id. "[B]order searches have been consistently conducted at the border between the Virgin Islands and the mainland since the United States acquired the Virgin Islands." Id. While there might not be universal knowledge of this fact, the Third Circuit "believe[d] that there [wa]s sufficient public knowledge of the distinctive status of the Virgin Islands to alert such travelers to the possibility of border inquiries not experienced at state lines." Id.
"Balancing the intrusion on the individual's Fourth Amendment interests against the degree to which routine customs searches promote legitimate governmental interests," the Third Circuit held that the searches in that case were not unreasonable under the Fourth Amendment. Id.
Paradise Motors, Inc., 892 F. Supp. at 705.
Further, to the extent these searches have been consistently conducted, there is less cause to find "sufficient public knowledge of the distinctive status of the Virgin Islands to alert" those sending mail to the Virgin Islands that their packages may be searched without a warrant. See id. Individuals departing the Virgin Islands for the United States pass through a customs checkpoint. This is an obvious signal to travelers that leaving the Virgin Islands and entering a state is somewhat different than traveling from one state to another. Individuals entering the Virgin Islands from a state pass through no such obstacles that would alert them of the fact that leaving a state and entering the Virgin Islands is materially different than traveling between the states.
In sum, the Court finds 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. Balancing these interests, the Court holds that the warrantless searches of the sealed mail packages in this matter were not reasonable.
The argument advanced by the government here challenges that logic. Indeed, the government's position causes the syllogism to implode.
