The opinion
ROBB, Circuit Judge
(dissenting):
I regret that I am unable to join in the thoughtful and scholarly majority opinion. A few words will indicate the reasons for my dissent.
Searches classified as border searches have always been free of both the warrant and the probable cause requirements of the Fourth Amendment. Boyd v. United States, 116 U.S. 616, 628 , 6 S.Ct. 524 , 29 L.Ed. 746 (1886); Almeida-Sanchez v. United States, 413 U.S. 266, 272 (Majority Op.), 287-88, 93 S.Ct. 2535 , 37 L.Ed.2d 596 (Dissenting Op.) (1973); United States v. Beckley, 335 F.2d 86 (6th Cir. 1964), cert. denied, sub nom., Stone v. United States, 380 U.S. 922 , 85 S.Ct. 921 , 13 L.Ed.2d 807 (1965); See Zweibon v. Mitchell, 170 U.S.App.D.C. 1, 38-39, n. 93 , 516 F.2d 594, 631-32, n. 93 (1975). 1 This means that a traveller and his luggage and effects may be subjected to a reasonable search, without a warrant, when he crosses the border. The search may of course extend to packages he is carrying, and I think he may reasonably be required to. open a sealed envelope carried in his pocket or handbag; that the contents to be inspected are enclosed in an envelope, rather than by wrapping paper and twine, cannot be of critical significance. If I am right about this then I think a sealed envelope acquires no additional protection or immunity from search because it moves through international mail, rather than in a traveller’s luggage or on his person. There is no more reason to require a warrant in one case than in the other.
The majority argues that warrants authorizing the opening of letter mail may be obtained with ease. Yet this argument applies equally to packages and envelopes, and the majority does not deny that packages crossing the border in the mail may be opened without a warrant. Furthermore, the First Amendment considerations emphasized by the majority apply also to packages, for writings of a sensitive and personal nature, such as diaries, political tracts, and the like may be transmitted in wrappings rather than envelopes.
From what has been said it follows that I agree with the decisions of the circuit courts of appeals for the seventh and ninth circuits in United States v. Bolin, 514 F.2d 554, 557 (7th Cir. 1975); United States v. Odland, 502 F.2d 148, 151 (7th Cir.), cert. denied, 419 U.S. 1088 , 95 S.Ct. 679 , 42 L.Ed.2d 680 (1974); and United States v. Barclift, 514 F.2d 1073, 1074-75 (9th Cir.) (per curiam), cert. denied, 423 U.S. 842 , 96 S.Ct. 76 , 46 L.Ed.2d 63 (1975). Unless and until the Supreme Court repudiates those decisions I would not do so.
. Citing Camara v. Municipal Court, 387 U.S. 523 , 87 S.Ct. 1727 , 18 L.Ed.2d 930 (1967) the majority suggests that the Supreme Court has abandoned “the argument based on history”. The Camara case however involved a warrant-less entry by a housing inspector in San Francisco; it did not involve a border search. The opinion for the Court was written by Mr. Justice White. In Almeida-Sanchez v. United States, 413 U.S. 266, 287-88 , 93 S.Ct. 2535 , 37 L.Ed.2d 596 (1973) Mr. Justice White, dissenting, forcefully stated and approved the historical underpinnings of border searches.