Sunday, December 11, 2005

Case o' The Week: ICE search for GBL OK, says CA9

Sure, border searches require a lower “cause” showing, but what if an international package makes it far into the U.S. and the Post Office – and not Customs – initiates the search? "Doesn’t matter," says the Ninth: the feds just need to meet the lower “reasonable suspicion” showing. United States v. Andrew Putra Sahanaja, __ F.3d. __, Slip. Op. 16065 (Dec. 8, 2005), available here.

Players: A nauseous mailman.

Facts: A letter carrier tried to deliver a package labeled “videos” at a California address. Slip Op. at 16069. No one was there, and the postal worker felt sick after handling the package. Id. Defendant Sahanaja’s girlfriend then tried to pick the package up at the post office, but failed when she refused to sign for it. Id. at 16070. Similarly, a call from the defendant about the box was unsuccessful. Id. Finally, the post office called Customs (ICE) about the package. The box was shipped to a Customs lab where it was opened and two gallons of GBL was found. The defendant was later busted, challenged the search, and entered a conditional plea – preserving the 4th amendment issue for appeal. Id. at 16069,71.

Issue(s): Was the “search of the package by Customs agents . . . legal under the agents’ broad authority to search international mail after it has arrived in the United States if there is reasonable cause to suspect criminal activity[?]”

Held: “Because we conclude that the search of the package was lawful under the extended border search exception, we affirm the conviction.” Id. at 16069. “Cardona and the authorities upon which it relies apply a “totality of the circumstances test” in determining whether a search pursuant to § 482 is constitutional . . . In this case, the package remained unopened, in its original condition, and never left official custody at any time before the search; it is immaterial whether it sat on a shelf in a Customs office or in a post office. Under these circumstances, it is difficult to see how the mere passage of a short period of time – even when considered together with the fact that [the city where the package was opened] is some distance from the border – is a factor of constitutional significance.” Id. at 16077-78 (internal citation omitted).

Of Note: This case is a depressing reminder of how the “Border” and “Fourth Amendment rights” are never to be used in the same sentence. The controlling statute for the case is 19 § 482, which requires only “reasonable cause” – instead of “probable cause” – to search international mail away from the border. Hence, the issue was i) when the box is a long ways from the border, and ii) when the Post Office (who would need a warrant) does a pitch-off to Customs, can the government still get away with the (very-low) “reasonable cause” standard for a border-related search of mail? Sahanaja says yes. Seems unfair and unnecessary: the Post Office wasn’t that far from establishing probable cause anyway. If the drugs in the box were enough to make a postman sick, couldn’t someone have done chemical tests outside of the box and just established P.C. for a warrant? This case creates a little Fourth Amendment free-zone around international mail: ship something far into the U.S., hand it off to Customs, and the feds don’t need to bother with the hassles of probable cause and a warrant.

How to Use: There are two important factual limitations in this case. First, this was an ICE search – not a general law enforcement search (for example, by the FBI). If Customs wasn’t involved, the search might have required the higher probable cause standard. Slip op. at 16078, discussing United States v. Soto-Soto, 598 F.2d 545 (9th Cir. 1979). Second, no one fooled with the box before Customs got to it. Id. at 16077. If it had been opened before ICE examined it, presumably P.C. would have kicked in. Keep an eye out for these factual limitations in international mail search cases.

For Further Reading: Sahanaja was importing GBL, had lots of KOH in his house, and appears to have been creating GHB – three kilos of which were found in his house. What is this alphabet soup of controlled substances? GHB is “liquid E” or “liquid ecstasy,” popular at raves. See Recipe here. GBL and KOH are two ingredients for making this drug, which allegedly “induces a pleasant state of relaxation and tranquility . . . a feeling of emotional warmth, wellbeing, and pleasant drowsiness.” Id.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at


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