United States of America v.  John Woodward Ickes, Jr.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4907 
JOHN WOODWARD ICKES, JR.,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-03-164)
Argued: October 27, 2004
Decided: January 4, 2005
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge Gregory and Judge Duncan joined.
COUNSEL
ARGUED: Robert James Wagner, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Rich-
mond, Virginia, for Appellant. Brian Ronald Hood, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee. ON BRIEF: Frank W. Dunham,
Jr., Federal Public Defender, Frances H. Pratt, Research and Writing
Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alex-

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andria, Virginia, for Appellant. Paul J. McNulty, United States Attor-
ney, Michael J. Elston, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
OPINION
WILKINSON, Circuit Judge:
John Woodward Ickes, Jr., was attempting to enter the United
States from Canada when U.S. Customs agents searched his van. The
agents found several illegal items, most notably images of child por-
nography stored in photo albums and on Ickes’s computer. Ickes was
charged and convicted of transporting child pornography in violation
of federal law. Prior to trial, the district court denied Ickes’s motion
to suppress the evidence obtained at the border.
We agree with the district court that the warrantless search of
Ickes’s van was permissible. Both Congress and the Supreme Court
have made clear that extensive searches at the border are permitted,
even if the same search elsewhere would not be. We refuse to under-
mine this well-settled law by restrictively reading the statutory lan-
guage in 19 U.S.C. § 1581(a) or by carving out a First Amendment
exception to the border search doctrine. We therefore affirm Ickes’s
conviction.
I.
On August 4, 2000, John Ickes drove to the Canadian border with
the United States, arriving at the Ambassador Bridge port of entry
near Detroit, Michigan. At the primary inspection point, he told a U.S.
Customs Inspector that he was returning from vacation. The inspec-
tor, however, was puzzled by this statement because Ickes’s van
appeared to contain "everything he own[ed]."
Ickes was referred to a second inspector’s station, where Agent
Merchel Albanese began a routine inspection of the van. Initially,
Agent Albanese was inclined to give Ickes’s vehicle only a cursory
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search. However, his suspicions were raised after discovering a video
camera containing a tape of a tennis match which focused excessively
on a young ball boy. This led Albanese to enlist the help of a col-
league and to search the van more thoroughly. The agents found mari-
juana seeds, marijuana pipes, and a copy of a Virginia warrant for
Ickes’s arrest. They also found several albums containing photo-
graphs of provocatively-posed prepubescent boys, most nude or semi-
nude.
At this point, the agents placed Ickes under arrest and detained
him. They ran his name through their computer and discovered that
he was subject to two outstanding warrants — one from the Bureau
of Alcohol, Tobacco, and Firearms, and one from Chesterfield
County, Virginia.
While Ickes was in custody, but before he was interrogated, several
agents continued to search the van. They confiscated a computer and
approximately 75 disks containing additional child pornography. One
of the disks ultimately revealed a home-movie of Ickes fondling the
genitals of two young children. The mother of the two children later
testified that Ickes was a family friend who had babysat her children
several times in their Virginia home.
While the agents were searching Ickes’s van and the contents of his
computer, Agent Michael Favier began to ask Ickes some questions.
Favier read Ickes his Miranda rights, which Ickes waived in writing.
Then Favier asked Ickes if the computer contained anything illegal on
it. Ickes admitted that stored on the computer were Russian videos of
fourteen and fifteen year-old children engaged in sexual acts. Ickes
also confirmed the validity of the outstanding warrants and disclosed
that he was wanted for child abuse charges in Virginia.
On May 8, 2003, Ickes was charged with transporting child por-
nography, in violation of 18 U.S.C. § 2252(a)(1) (2000), and with
another count which was subsequently dismissed. Prior to trial, Ickes
filed a motion to suppress the contents of the computer and the disks.
He alleged that the warrantless search which produced this evidence
violated his First and Fourth Amendment rights.
The district court denied Ickes’s motion, holding that the search
fell under the extended border search doctrine — an established
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exception to the Fourth Amendment warrant requirement. After a
bench trial, the district court found Ickes guilty of transporting child
pornography in violation of 18 U.S.C. § 2252(a)(1). The court sen-
tenced him to 130 months in prison.
Ickes now appeals his conviction by challenging the district court’s
decision to deny his suppression motion. As a conclusion of law, we
review that ruling de novo, although we review the underlying find-
ings of fact for clear error. United States v. Holmes, 376 F.3d 270,
273 (4th Cir. 2004).
II.
However the Constitution limits the government’s ability to search
a person’s vehicle generally, our law is clear that searches at the bor-
der are a different matter altogether. Ickes asks us to erode this clarity
either by narrowly construing the congressional mandate in 19 U.S.C.
§ 1581(a) or by recognizing a First Amendment exception to the bor-
der search doctrine. For the following reasons, we decline both
requests.
A.
Ickes first claims that Congress has not authorized the search of his
computer and disks. We cannot agree. Congress has been emphatic in
its empowerment of U.S. Customs officials. The statutory language is
sweeping:
Any officer of the customs may at any time go on board of
any vessel or vehicle at any place in the United States or
within the customs waters, . . . or at any other authorized
place . . . and examine the manifest and other documents
and papers and examine, inspect, and search the vessel or
vehicle and every part thereof and any person, trunk, pack-
age, or cargo on board. . . .
19 U.S.C. § 1581(a) (2000).
Ickes claims that this statutory language is insufficient to cover the
search of his computer and disks. He bases this argument on the fact
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that the statute does not explicitly mention electronic equipment. He
concludes from this omission that it is "obvious" that Congress did
not intend its statute to cover those items. He invokes the maxim of
statutory construction that the inclusion of several items in a list —
here, "trunk, package, or cargo" — implies the exclusion of others.
Despite Ickes’s contentions to the contrary, the plain language of
the statute authorizes expansive border searches. To determine
whether statutory language is plain, courts must look to "the language
itself, the specific context in which that language is used, and the
broader context of the statute as a whole." Robinson v. Shell Oil Co.,
519 U.S. 337, 341 (1997). Each of these three guideposts leads us to
reject Ickes’s interpretation of the statute.
First, the statutory language. Congress chose to use the embracive
term "cargo" in § 1581(a). A "fundamental canon of statutory con-
struction requires that unless otherwise defined, words will be inter-
preted as taking their ordinary, contemporary, common meaning."
United States v. Maxwell, 285 F.3d 336, 340 (4th Cir. 2002) (internal
quotation omitted). Black’s Law Dictionary defines "cargo" to mean
"goods transported by a vessel, airplane, or vehicle." Black’s Law
Dictionary 226 (8th ed. 2004).
In this case, it is undisputed that Ickes’s computer and disks were
being transported by his vehicle. We are unpersuaded that these par-
ticular transported goods are somehow exempt from the ordinary defi-
nition of "cargo." To hold otherwise would undermine the long-
standing practice of seizing goods at the border even when the type
of good is not specified in the statute. See, e.g., United States v.
Flores-Montano, 124 S.Ct. 1582, 1586 (2004) (upholding a search
involving the disassembly of a gas tank); United States v. Roberts,
274 F.3d 1007, 1016 (5th Cir. 2001) (upholding a search involving
the opening of a shaving kit with a computer disk hidden inside it);
United States v. Caminos, 770 F.2d 361, 363 (3d Cir. 1985) (uphold-
ing a search involving the prying open of a wood carving).
Second, Ickes’s narrow interpretation of the word "cargo" is incon-
sistent with the specific context in which the word is used. In drafting
§ 1581(a), Congress chose to use the word "any" no less than five
times. The statute reads:
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Any officer . . . may at any time go on board of any vessel
or vehicle at any place in the United States . . . [and search
the vehicle] . . . and any person, trunk, package or cargo on
board.
§ 1581(a)(emphasis added). As we have explained before, "[t]he word
‘any’ is a term of great breadth. Read naturally, [it] has an expansive
meaning . . . ." Mapoy v. Carroll, 185 F.3d 224, 229 (4th Cir.
1999)(internal quotations and citations omitted). Given Congress’s
repeated use of the word "any" immediately preceding its list of what
may be searched, we find it unreasonable to construe the list restric-
tively.
Finally, we are convinced that Ickes’s argument must fail after ana-
lyzing the "broader context of the statute as a whole." Robinson, 519
U.S. at 341. We construe § 1581(a) against the back-drop of an "im-
pressive historical pedigree of the Government’s power and interest"
at the border. Flores-Montano, 124 S. Ct. at 1586 (internal quotation
omitted). As detailed below, since the founding of our country Con-
gress has "granted the Executive plenary authority to conduct routine
searches and seizures at the border." Id. at 1585, citing United States
v. Montoya de Hernandez, 473 U.S. 531, 537 (1985).
It is no surprise, therefore, that courts have historically construed
the language of § 1581(a) in an expansive manner.1 The realization
that important national security interests are at stake "has resulted in
courts giving the broadest interpretation compatible with our constitu-
tional principles in construing the statutory powers of customs offi-
cials." United States v. Stanley, 545 F.2d 661, 666 (9th Cir. 1976). See
also United States v. Boumelhem, 339 F.3d 414, 419-20 (6th Cir.
1While noting that a simple reading of § 1581(a) suggests a broad
grant of authority to the government, the Fourth Circuit has also cau-
tioned that the statute be interpreted "in light of the fourth amendment’s
requirement that seizures and searches be reasonable." Blair v. United
States, 665 F.2d 500, 505 (4th Cir. 1981). This reasonableness require-
ment is certainly met in this case, in light of the Supreme Court’s recent
instruction that searches of belongings at the border "are reasonable sim-
ply by virtue of the fact that they occur at the border." Flores-Montano,
124 S. Ct. at 1585 (internal quotation omitted).
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2003); United States v. 1903 Obscene Magazines, 907 F.2d 1338,
1341 (2d Cir. 1990).
We hold that the government was authorized by 19 U.S.C.
§ 1581(a) to search Ickes’s computer and disks.2
B.
Ickes further argues that even if Congress purports to permit the
search of his computer and disks, such a search would be unconstitu-
tional. We disagree.
Last term, the Supreme Court instructed that:
The Government’s interest in preventing the entry of
unwanted persons and effects is at its zenith at the interna-
tional border. Time and again, we have stated that searches
made at the border . . . are reasonable simply by virtue of
the fact that they occur at the border.
Flores-Montano, 124 S. Ct. at 1585 (holding that the government’s
authority to conduct border searches is broad enough to permit the
removal, disassembly, and reassembly of a vehicle’s fuel tank).
The border search doctrine is not a recent development in the law.
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." United States v.
Ramsey, 431 U.S. 606, 619 (1977). In fact, the same Congress which
proposed the Fourth Amendment to state legislatures also enacted the
first far-reaching customs statute in 1790. Id. at 616. Thus, since the
birth of our country, customs officials have wielded broad authority
to search the belongings of would-be entrants without obtaining a
warrant and without establishing probable cause. Id. See also Mon-
2Ickes additionally argues that the government had no authority to
search his computer under 19 U.S.C. § 482 (2000). This statute is
broadly worded, much like § 1581. However, we need not address the
government’s authority to search Ickes’s van under this second provision
of Title 19 because we find it is authorized to do so by the first.
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toya de Hernandez, 473 U.S. at 538; United States v. Villamonte-
Marquez, 462 U.S. 579, 584-85 (1983).
This well-recognized exception to the safeguards of the Fourth
Amendment comes with an equally well-established rationale. For it
is "axiomatic that the United States, as sovereign, has the inherent
authority to protect, and a paramount interest in protecting, its territo-
rial integrity." Flores-Montano, 124 S. Ct. at 1586. The government
has an overriding interest in securing the safety of its citizens and to
do this it must seek to prevent "the introduction of contraband into
this country." Montoya de Hernandez, 473 U.S. at 537.
A greater interest on the side of the government at the border is
coupled with a lesser interest on the side of the potential entrant.
Since "a port of entry is not a traveler’s home," his expectation of pri-
vacy there is substantially lessened. United States v. Thirty-Seven
Photographs, 402 U.S. 363, 376 (1971)(plurality opinion). When
someone approaches a border, he should not be surprised that
"[c]ustoms officers characteristically inspect luggage . . . ; it is an old
practice and is intimately associated with excluding illegal articles
from the country." Id.
Despite the Supreme Court’s insistence that U.S. officials be given
broad authority to conduct border searches, Ickes argues that the
search of his computer was nonetheless invalid since it involved the
search of expressive material. In essence, Ickes asks us to carve out
a First Amendment exception to the border search doctrine.
However, the ramifications of accepting Ickes’s First Amendment
argument would be quite staggering. Ickes suggests that the border
search doctrine does not apply when the item being searched is some-
thing "expressive." But this cannot be the case. The border search
doctrine is justified by the "longstanding right of the sovereign to pro-
tect itself." Flores-Montano, 124 S. Ct. at 1585, quoting Ramsey, 431
U.S. at 616. Particularly in today’s world, national security interests
may require uncovering terrorist communications, which are inher-
ently "expressive." Following Ickes’s logic would create a sanctuary
at the border for all expressive material — even for terrorist plans.
This would undermine the compelling reasons that lie at the very
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heart of the border search doctrine. Ickes’s argument, at bottom,
proves too much.
Furthermore, recognizing a First Amendment exception to the bor-
der search doctrine would ensure significant headaches for those
forced to determine its scope. Disputes about whether material is
obscene, for example, are not always easily resolved. See, e.g., Miller
v. California, 413 U.S. 15 (1973). Were we to carve out this First
Amendment exception, government agents at the border (and subse-
quently courts) would be faced with drawing difficult lines. First,
agents would have to decide — on their feet — which expressive
material is covered by the First Amendment. And then, in cases where
they conclude that the exception applies, they would still have to
determine if probable cause existed. These sorts of legal wrangles at
the border are exactly what the Supreme Court wished to avoid by
sanctioning expansive border searches. See Flores-Montano, 124
S. Ct. at 1585-86. We refuse to put these issues into play and thereby
divert customs officials from their charge of policing our borders and
protecting our country.
Ickes claims that our ruling is sweeping. He warns that "any person
carrying a laptop computer . . . on an international flight would be
subject to a search of the files on the computer hard drive." This pre-
diction seems far-fetched. Customs agents have neither the time nor
the resources to search the contents of every computer.
Indeed, the fallacy of Ickes’s argument is no better illustrated than
by the facts of his own case. The agents did not inspect the contents
of Ickes’s computer until they had already discovered marijuana para-
phernalia, photo albums of child pornography, a disturbing video
focused on a young ball boy, and an outstanding warrant for Ickes’s
arrest. As a practical matter, computer searches are most likely to
occur where — as here — the traveler’s conduct or the presence of
other items in his possession suggest the need to search further. How-
ever, to state the probability that reasonable suspicions will give rise
to more intrusive searches is a far cry from enthroning this notion as
a matter of constitutional law. The essence of border search doctrine
is a reliance upon the trained observations and judgments of customs
officials, rather than upon constitutional requirements applied to the
inapposite context of this sort of search.
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There is an additional flaw in Ickes’s First Amendment claim.
Ickes argues that cases such as United States v. Ramsey demonstrate
the Supreme Court’s willingness to accord greater protection at the
border to expressive materials, as opposed to mere tangible items.
However, the Supreme Court drew no such line in Ramsey. In fact,
its cases indicate a reluctance to do so.
In Ramsey, the Court upheld the authority of customs officials to
open suspiciously bulky envelopes in the mail. 431 U.S. at 620. In
that case, the relevant postal regulations prohibited the officials from
reading the content of the letters without a warrant. Id. at 623. The
Court in Ramsey specifically found it "unnecessary to consider the
constitutional reach of the First Amendment in this area in the
absence of the existing statutory and regulatory protection." Id. at
624. Thus, the Ramsey Court never reached the question of whether
the First Amendment exempts expressive material from the scope of
the border search doctrine.
Moreover, since Ramsey, the Supreme Court has indicated that
should it reach this question, its resolution would be unlikely to favor
Ickes. In New York v. P.J. Video, 475 U.S. 868, 874 (1986) the Court
refused to require a higher standard of probable cause for warrant
applications when expressive material is involved. It held that:
an application for a warrant authorizing the seizure of mate-
rials presumptively protected by the First Amendment
should be evaluated under the same standard of probable
cause used to review warrant applications generally.
Id. at 875. Given the Court’s reluctance to create a First Amendment
exception to the general principles governing warrant applications, we
find it unlikely that it would favor a similar exception to the border
search doctrine.
We therefore reject Ickes’s constitutional argument, and hold that
the border search doctrine is not subject to a First Amendment excep-
tion.
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III.
Because customs agents were authorized by Congress to search all
the cargo in Ickes’s vehicle, and because no constitutional impedi-
ment exists to their doing so, we reject Ickes’s claims and affirm his
conviction.3
AFFIRMED
3On November 13, 2003, Ickes was sentenced to 130 months imprison-
ment. The final sentencing order states that "[f]orfeiture has not been
ordered in this case." We thus have a final judgment from which the gov-
ernment has not appealed. Because it is not properly before us, we do not
address the question of whether the absence of a forfeiture order in the
final judgment was due to clerical error. See El Paso Natural Gas Co.
v. Neztsosie, 526 U.S. 473, 480 (1999)("[I]n more than two centuries of
repeatedly endorsing the cross-appeal requirement, not a single one of
our holdings has ever recognized an exception to the rule.")
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