U.S. v. Rivas

Citation157 F.3d 364
Decision Date02 October 1998
Docket NumberNo. 96-10302,96-10302
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Carlos RIVAS; Douglas Ibarra, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Michael Reuss Snipes, Asst. U.S. Atty., Dallas, TX, for Plaintiff-Appellee.

Juan Luis Burgos-Gandia, Richardson, TX, for Carlos Rivas.

James Warren St. John, Ft. Worth, TX, for Douglas Ibarra.

Appeals from the United States District Court for the Northern District of Texas.

Before DUHE, BENAVIDES and STEWART, Circuit Judges.

STEWART, Circuit Judge:

This case is before us on appeal from defendants' convictions in the district court of one count each of conspiracy to possess with the intent to distribute and possession with intent to distribute, in excess of 5 kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. For the following reasons we REVERSE in part and AFFIRM in part.

BACKGROUND

On September 4, 1995, Carlos Rivas applied to enter the United States at the Los Indios Port of Entry at Brownsville, Texas. Rivas was the driver and sole occupant of a 1977 Kenworth truck towing an ostensibly empty auto-transport trailer. He told Customs officials that he was going to San Antonio to purchase used automobiles for resale in El Salvador. During the processing of Rivas for entry into the country, Customs inspectors drilled into the frame of the trailer and discovered a white powder which field-tested positive for cocaine.

Surveillance was established on Rivas and his vehicle, and over the ensuing several days, Rivas traveled to Dallas. Rivas met with Douglas Ibarra at the Deluxe Inn in Irving, Texas, on September 8, 1995. Rivas and Ibarra each removed luggage from their vehicles and placed the luggage into room 218 of the motel. They then drove their vehicles to a small commercial building in a fenced-off lot in Dallas. Rivas left his tractor-trailer parked there and departed in a rental car. Ibarra departed in his car. Customs agents arrested both men, and they obtained a search warrant to search the tractor-trailer. The agents used an acetylene torch to remove 40 one-kilogram bricks of cocaine from the frame of the trailer.

Rivas and Ibarra were indicted and charged with one count of conspiracy to possess with intent to distribute in excess of 5 kilograms of cocaine and with one count of possession with intent to distribute in excess of 5 kilograms of cocaine. Rivas filed a motion to suppress evidence based on Customs officials' warrantless search of his truck at the border. The district court entered an order ruling that the initial search of the truck at the border stop was legal but stating that it needed more information before it could rule on the subsequent search of the truck in Dallas that resulted in the discovery of 40 kilograms of cocaine. The court scheduled a hearing, however, nothing in the record indicates that the hearing ever occurred After a three-day trial, the jury found Rivas and Ibarra guilty as charged. The court sentenced Rivas to 188 months' imprisonment and Ibarra to 170 months' imprisonment. Each timely filed his notice of appeal.

or that any supplemental pleadings on the issue were ever filed. The record reflects that, immediately prior to selecting a jury, counsel for Rivas stated that she wanted to preserve Rivas' right to appeal the district court's ruling that the border search was legal. The court assured counsel that she had done so.

DISCUSSION
I. Rivas' Motion to Suppress

Rivas argues that the search of his vehicle at the port of entry violated the Fourth Amendment. In ruling on Rivas' motion to suppress, the district court did not conduct a suppression hearing but stated that "governmental officers at the international border may conduct routine stops and searches without a warrant or probable cause." The court concluded that "[b]ecause [Rivas] was entering the United States, U.S. Customs officials were permitted to search his vehicle, without a warrant, prior to entry." Implicit in the court's ruling was a determination that the Customs officials' drilling holes into Rivas' vehicle amounted to a routine search.

In reviewing a district court's ruling on a motion to suppress, we review questions of law de novo and accept the trial court's factual findings unless clearly erroneous. United States v. Carrillo-Morales, 27 F.3d 1054, 1060-61 (5th Cir.1994) (citations omitted). As we noted above, however, the district court did not hold a hearing on the suppression issue and entered no factual findings regarding this issue.

"[W]arrantless searches and seizures are unreasonable per se unless they fall within a few narrowly defined exceptions." United States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir.1993). The border-search doctrine is one of those exceptions. Id. Under the border-search doctrine, government agents may conduct a "routine search" at the international border or its functional equivalent without probable cause, a warrant, or any suspicion to justify the search. Id. at 1147-48. "Routine searches" are generally classified as those which do not "seriously invade a traveler's privacy." Id. at 1148 n. 3. A stop and search that is not "routine" requires a "reasonable suspicion of wrongdoing to pass constitutional muster." Id. (internal quotations and citation omitted). Reasonable suspicion of criminal activity must be based upon "specific facts which, taken together with rational inferences therefrom, reasonably warrant an intrusion." Id. at 1153. Reasonable suspicion is defined as "a particularized and objective basis for suspecting the particular person" of smuggling contraband. United States v. Montoya de Hernandez, 473 U.S. 531, 541, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985) (internal quotation and citation omitted). In determining whether government agents possessed a reasonable suspicion that criminal activity was occurring, we must consider "the totality of the particular circumstances." Cardenas, 9 F.3d at 1148 (internal quotations and citation omitted).

This Circuit has never before confronted the issue of whether drilling into the body of a vehicle at a border checkpoint amounts to a routine or a nonroutine search. However, the First Circuit has held that drilling into a closed, metal cylinder was not a routine search because force was used to effect the search. United States v. Robles, 45 F.3d 1, 5 (1st Cir.1995) ("We have little difficulty concluding that drilling a hole into the cylinder was not a routine search."). We agree with this analysis and conclude that drilling into Rivas' trailer was a nonroutine search.

Accordingly, we must determine if the Customs officials had a reasonable level of suspicion when they conducted their search. In the instant case, Customs officials's suspicions appear to have been aroused by a drug-detecting dog's inspection of Rivas' truck and trailer during Rivas' entry at the Los Indios port of entry. The dog did not alert to the presence of narcotics at any point during this inspection. Instead, a Customs official testified that the dog "cast" a couple of times. When asked to explain in From the points of entry that we have, the canines are assigned with the dog handlers, our canines that are aggressive, alert, which means that when they detect what they feel is the presence of narcotics in either conveyance or baggage or whatever form it may be, the dog alerts to it aggressively scratching at it or trying to bite at it. That's what we term as aggressive alert.

layman's terms what casting was, he provided the following explanation:

The phrase of "casting" is in a sense the dog maybe feels not a strong alert, but something that temporarily stops him and deters his attention at that point. And although he doesn't pursue as aggressive alert, he does stop and give it minute attention and continues with his duties by continuing his examination.

We have held that a drug-dog's alert is sufficient to create probable cause for a search. United States v. Williams, 69 F.3d 27, 28 (5th Cir.1995). Our review of the case law, however, reveals that no federal court has ever confronted a situation where a dog's cast is used to justify a search, nor a situation where a "weak alert" on its own triggers a search. The...

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