dissenting:
The decision of the court is a narrow one: foreign mail that has been delivered to an addressee within the United States may be seized, opened and searched without a warrant, provided: (a) there is a reasonable suspicion, supported by articulable facts, that the item searched contains contraband; 1 (b) it is established with reasonable certainty that, when searched, the mail was in the same condition as when the border was crossed. Under the court’s analysis, requirement (b) can be established by proof either that the mail was subject to constant surveillance from the time it crossed the border, or that under the circumstances no new contents were likely to have been introduced into the package during any breaks in the surveillance. The rationale for the majority view is “extended border search.” No functional equivalent of the border is involved.
I do not differ with respect to requirement (b). Nor do I differ with requirement (a) as applicable to mail that has not been delivered to the addressee. But I would draw a bright, sharp line between mail that remains undelivered in the hands of or under the control of the mail service and mail that has been delivered to the addressee. For sealed mail that has been delivered I would require the usual probable cause and exigent circumstances to support a warrantless search. Sealed mail has several qualities that cause me to reach this decision.
First, the essentially private nature of mail is indisputable. We entrust important, confidential and intimate matters to our letters, and we ship gifts and other personal items in parcels, with the confidence that contents are private. Each of us is offend*775ed at the affrontery of any one who without permission opens our letters or our parcels. Almost every family of even minimal sophistication has been through the experience of teaching its children that mail, like a diary, is personal and intimate, not to be tampered with or scrutinized without authorization.
Second, the package that was seized and later searched was sealed and the contents hidden from public view. As the court stated in U. S. v. Chadwick:
By placing personal effects inside a double-locked footlocker, respondents manifested an expectation that the contents would remain free from public examination. No less than one who locks the doors of his home against intruders, one who safeguards his personal possessions in this manner is due the protection of ' the Fourth Amendment Warrant Clause.
433 U.S. 1, 11, 97 S.Ct. 2476, 2483, 53 L.Ed.2d 538, 548 (1977). See also Katz v. U. S., 389 U.S. 347, 352, 88 S.Ct. 507, 511-512, 19 L.Ed.2d 576, 582 (1967). The objective evidence shows that Richards sought to preserve his privacy in the package and took normal precautions to prevent its exposure to the public.
Third, sealed items in the mail historically have been considered to have a high degree of privacy, and government intrusion into such parcels has been perceived to be objectionable under the Fourth Amendment. See U. S. v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1049, 25 L.Ed.2d 282 (1970); Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877 (1878). In short, Richards’ expectation of privacy was legitimate in part because of the protection of mail under the Fourth Amendment. Cf. Chadwick, 433 U.S. at 7-11, 97 S.Ct. at 2481-2483, 53 L.Ed.2d at 545—48 (historical analysis of scope of Fourth Amendment).
Fourth, Richards was in lawful possession of the package. As Judge Rubin points out, the “arcane distinctions” of property law are not controlling but they are to be considered in determining whether expectations of privacy are reasonable. It seems to me that it is more of an affront to the citizen for the government to first seize from his possession an item essentially private with the purpose of searching it, and then to search it, than it is to search an item which without the necessity of seizure is in the rightful possession of the government and has never come into the citizen’s possession.2
In general, mail crossing the international boundary is subject to border search the same as items entering by other modes of travel. U. S. v. Ramsey, 431 U.S. 606, 620, 97 S.Ct. 1972, 1980, 52 L.Ed.2d 617, 629 (1977). Incoming international mail may be searched in the interior of the country while it remains undelivered in the possession of the Postal Service. U. S. v. King, 517 F.2d 350, 354 (5th Cir. 1975); U. S. v. Davis, 461 F.2d 83, 89 (5th Cir.), cert. denied 409 U.S. 921, 93 S.Ct. 250, 34 L.Ed.2d 180 (1972) (under theft of mail statute authority of Postal Service over mail ends with delivery to proper addressee). The issue in King was whether a foreign letter received at San Francisco, not inspected, and routed to Birmingham, Alabama, could be opened for inspection without a warrant while still in possession of the mail service. We held that it could. The rationale was three-fold. First, since all incoming international mail is potentially subject to search there is no reasonable expectation of privacy. Second, a search of mail that is in the possession of the Postal Service and has not been delivered takes place without knowledge of or inconvenience to the addressee. Third, search of mail prior to delivery is far less intrusive than searches of individuals or their immediate effects. None of these fac*776tors applies to mail that has reached the hands of the addressee.
The first King factor, the diminution in expectation of privacy by reason of the government’s power to search, does not rest upon any change in the confidential and private nature of mail but in its exposure to a governmental power to inspect. The governmental power exists at the border and continues until delivery. But once mail is delivered to the addressee he is entitled to enjoy the expectation of privacy, free from governmental power to inspect, that inures from the nature of mail that has been placed in the hands of the person entitled to receive and retain it. There is no general authority to make a warrantless search of sealed mail that is in the interior of the country and is in the hands of the addressee. It is specious to find such authority on the basis of the government’s right to search mail that has never left its hands.
Looking to the second and third rationales of King, a search after delivery usually will occur with knowledge of and inconvenience to the addressee and in most cases will be more intrusive than a search prior to delivery and may be at a point distant from the place of delivery.3 Allowing a search of mail after delivery to be justified as a border search greatly increases the potential for interfering with the rights of persons lawfully in the country. See Carroll v. U. S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). As we have stated recently,
Instead of drawing formalistic rules based on how long or how far a person has penetrated into the country, we will continue to determine whether a search is at the border based on whether the rationale for border searches is vindicated without impinging the rights of persons “lawfully within the country ...”
U. S. v. Walters, 591 F.2d 1195, 1198 (5th Cir.) (quoting Carroll), cert. denied, 442 U.S. 945, 99 S.Ct. 2892, 61 L.Ed.2d 317 (1979).
The interests that the government seeks to vindicate in this case can be protected by less stringent procedures than the majority permit. Since the government can control time and place of delivery, it can secure a warrant to be served when delivery occurs. If this is not possible it may seize based upon probable cause and the exigency of the addressee’s taking the item away, and then comply with Chadwick.
I respectfully dissent.
. The opinion by Judge Rubin, note 4, recognizes that this is a more stringent standard than required for a search of mail at the actual border.
. The double impact of seizure followed by search is demonstrated by cases like Chadwick, where it was permissible to invade privacy by a warrantless seizure but not by a warrantless search of the seized item. The argument that a valid seizure subsumes a right to search was rejected in Chadwick. In this case a seizure might have been justified on the ground of probable cause plus exigent circumstances but when one applies Chadwick the subsequent search of the sealed item is not justifiable. Faced with this situation, the government and the majority find their way to safe harbor by using “extended border search.”
. This case might well have come out differently if the interval between delivery and seizure had not been so transitory. It is the brevity of this time interval that causes this to be a hard case that makes bad law.