Judge: CBP must stop illegal package searches

A traveler converses with a U.S. Customs and Border Protection officer Wednesday at King Airport on St. Thomas. U.S. District Judge Curtis Gomez ruled Monday that warrantless searches by Customs and Border Protection agents of incoming mail violate the Fourth Amendment of the U.S. Constitution.

ST. THOMAS — A federal judge has ruled that the U.S. Customs and Border Protection practice of opening packages sent to Virgin Islanders without a search warrant is unconstitutional, according to documents filed in U.S. District Court.

U.S. District Court Judge Curtis Gomez issued the order Monday in the case of Steven Baxter, who is charged with two counts of importing firearms into the territory, a federal crime punishable by up to five years in prison and a $250,000 fine.

Baxter, 31, was indicted by a federal grand jury on June 7, 2017, and extradited from South Carolina based on an arrest warrant issued by the District Court the same day. U.S. Magistrate Judge Ruth Miller ordered Baxter detained pending further proceedings and he was set to go to trial Monday.

According to the indictment, on or about March 29, Baxter shipped two firearms from South Carolina to a third person on St. Thomas in violation of federal law.

Gomez ruled in the opinion issued Monday that Customs and Border Protection agents illegally opened the two packages in question, and ordered all physical evidence obtained from those packages be suppressed at trial.

U.S. Attorney Gretchen Shappert filed a notice of appeal Wednesday. She declined to comment on Gomez’s order when reached by phone.

Attorney Michael Sheesley, who is representing Baxter, said attorney Edgar Sanchez of Puerto Rico filed the motion to suppress physical evidence in the case and argued the issue at a suppression hearing, while Sheesley is taking the case to trial — if it gets that far.

Gomez’s order means that prosecutors have essentially been left without evidence against Baxter, and Sheesley said he intends to file a request that he be released.

“I believe that the government’s position is that they want to keep Baxter incarcerated pending this appeal,” Sheesley said. “This the only thing he’s been held on.”

Baxter was arrested after Customs and Border Protection agents conducting a search of U.S. mail on St. Thomas used a canine trained in detecting narcotics to scan incoming packages. The dog alerted on a package so a CBP officer “without consent of the sender or recipient, or the benefit of a court order,” opened the package and discovered a sweater that smelled like marijuana, which was concealing several firearms parts, according to Gomez’s opinion.

Another package received at the post office a few days later was X-rayed and appeared to contain a firearm, so CBP officers opened that package without a warrant and found a gun and ammunition, according to the opinion.

One of the officers testified during a court hearing that “CBP officials regularly open packages sent from the mainland United States to the United States Virgin Islands without warrants because the CBP has ‘border search authority’ under those circumstances,” according to the opinion.

When Gomez asked why federal agents didn’t simply get a warrant to search the package, Assistant U.S. Attorney Anna Vlasova argued that “as law enforcement strategy and tactic, there is no warrant requirement,” according to the opinion.

Gomez was unpersuaded by that reasoning, and issued a 42-page opinion explaining why, when it comes to Constitutional protections, Virgin Islanders are no different from mainland residents.

“The Fourth Amendment of the United States Constitution has protected individuals from unreasonable warrantless searches since its existence,” and has been recognized by the U.S. Supreme Court “as extending to sealed mail among and between United States residents within United States territory,” Gomez wrote.

Gomez went on to further dismantle the federal agency’s reasoning, and suggested officers have been long overstepping their legal boundaries by conducting warrantless mail searches.

“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?” Gomez wrote.

Gomez said the federal agency seemed to be suggesting that the Virgin Islands should be treated differently under the law, and the practice of warrantless package searches “elevates expediency over the Constitution in a way it admittedly would never do in a state or Puerto Rico, and it does so unlawfully.”

Sheesley said that the ruling is indeed a “game changer” when it comes to the way Customs and Border Protection officers have traditionally operated in the territory, but in a practical sense Gomez’s order would likely have little effect on officers’ ability to search packages — as long as they first obtain a warrant.

Federal agents and the U.S. Postal Service are under no obligation to release a package to a recipient if they have reason to believe it contains illegal materials, and would be empowered to search packages with probable cause after obtaining permission from a judge.

— Contact Suzanne Carlson at 340-714-9122 or email scarlson@dailynews.vi.