The Ninth Circuit has voted to grant the petition for rehearing in United States v. Seljan, a case that considers how the Fourth Amendment's border search exception applies to the search of a FedEx package sent from California to the Phillipines. In the original panel opinion, Judges Gould and Clifton applied prior Ninth Circuit precedent and found that the search need not be based on reasonable suspicion so long as it was "reasonable" based on "the scope of the intrusion, the manner of its conduct, and the justification for its initiation." In a partial concurrence and partial dissent, Judge Pregerson argued that such searches such require reasonable suspicion.

  This one will be interesting to watch because the Ninth Circuit's border search cases can be rather out-of-step with U.S. Supreme Court precedent. As I explained in this post in 2005, "In recent years, the Justice Department, the Ninth Circuit, and the Supreme Court have been involved in a bit of a tug-of-war over the rules that should govern invasive car searches at the Mexico border." The big question in these cases, and in border search cases more broadly, is whether to require reasonable suspicion before a border search can occur. The U.S. Supreme Court's cases suggest the answer is no, see, e.g., Flores-Montano and Ramsey, but the Ninth Circuit's cases are much more friendly to a "yes" answer. Given the rehearing in Seljan, it will be interesting to see if the Court ends up bringing its precedents more in line with the Supreme Court's or takes a different view.