U.S. v. Bravo

• Decision Date: 08 July 2002
• Docket Number: No. 01-50159.,01-50159.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ricardo A. BRAVO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

295 F.3d 1002

UNITED STATES of America, Plaintiff-Appellee, v. Ricardo A. BRAVO, Defendant-Appellant.

No. 01-50159.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 2, 2001.

Submission Withdrawn November 21, 2001.

Re-submitted May 13, 2002.

Filed July 8, 2002.

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Benjamin L. Coleman, Federal Defenders of San Diego, Inc., San Diego, California, argued the cause for the defendant-appellant; Todd W. Burns, Federal Defenders of San Diego, Inc., San Diego, California, was on the briefs.

Patrick K. O'Toole, United States Attorney, San Diego, California, argued the cause for the plaintiff-appellee; Bruce R. Castetter, Assistant United States Attorney, and Renee M. Bunker, Assistant United States Attorney, San Diego, California, were on the brief.

Appeal from the United States District Court for the Southern District of California; Jeffrey T. Miller, District Judge, Presiding. D.C. No. CR-00-03095-JTM.

Before: O'SCANNLAIN, PAEZ, Circuit Judges, and KING,^* District Judge.

O'SCANNLAIN, Circuit Judge.

We must decide whether, under the Fourth Amendment, a border search of a toolbox in the bed of a truck was routine and whether a detention became an arrest when a customs inspector briefly handcuffed the truck's driver.

I

On September 23, 2000, Ricardo A. Bravo entered the United States from Mexico at the Calexico, California, West Port of Entry as the sole occupant of a 1981 Chevrolet Silverado. In response to routine questions from Customs Inspector Albert Tijerina during a primary inspection, Bravo stated that he was an American citizen traveling to the market and post office, that he had nothing to declare, and that he had borrowed the truck from a friend, which explained why he was not its registered owner. Inspector Tijerina thought Bravo was being "overly-friendly" in answering his questions. He asked an Immigration Service Canine Enforcement Officer, who was conducting a pre-primary roving operation, to "run" his detector dog around the truck. The dog "alerted" to the toolbox in the bed of the truck.

Senior Inspector Carlos Flores, present during the dog's alert, inspected the toolbox by banging its side and underside with his hands. He heard a solid sound, which suggested that there was more than just loose tools stored inside. He opened the toolbox by undoing a latch on the lid and felt the toolbox's inner floor and walls with his hands. In so doing, he noticed a depth discrepancy between what should have been the floor of the box and the actual bottom of the box. He notified Inspector Tijerina of the space discrepancy.

Inspector Tijerina had Bravo exit the vehicle and conducted a brief "frisk" of his waist area before handcuffing him. Once handcuffed, Inspector Tijerina escorted Bravo to a security office to await the search of his truck. Inspector Tijerina told Bravo that he would remove the handcuffs when they reached the security office, which was about 30-40 yards away, and that the handcuffs were for both his own safety and Bravo's. He also informed Bravo that he would be free to go if nothing was found in his truck and that these were all routine measures.

Inspector Tijerina testified that he does not handcuff everyone whose vehicle is referred to secondary inspection, but here he exercised his discretion to handcuff Bravo for the following reasons: Bravo was only 20 yards away from the border, which made this a potential flight risk situation; two other border inspectors had been shot under similar circumstances; a detector dog had "alerted" to Bravo's vehicle; Bravo had been "overly friendly"; and, finally, Inspector Flores had noticed a space discrepancy in the toolbox. Once in the security office, Inspector Tijerina removed the handcuffs as promised, patted-down Bravo's outer clothing for weapons and contraband, and had Bravo empty his pockets. Bravo had been handcuffed for a total of one to two minutes, and he was then left to wait, unhandcuffed, in the security office.

Inspector Tijerina inspected the truck in the "take down area." He opened the toolbox by releasing a latch on the lid and tapped on the bottom, which gave a solid sound as if something was inside. He also observed the space discrepancy that Inspector Flores had noted before. After removing the tools and sliding the toolbox down the bed of the truck and away from the truck's cabin, Inspector Tijerina saw an access plate to a compartment at the base of the box. He hammered at some adhesive that held the plate in place; this action released the access plate but caused damage to the toolbox. Inside the secret compartment, Inspector Tijerina found over 50 kilograms of marijuana.

Subsequently, Inspector Tijerina told Bravo that he was under arrest for smuggling drugs and moved him to a holding cell. When Customs Special Agent Juan Jacobo arrived, he advised Bravo of his Miranda rights, which Bravo waived. Bravo then admitted that he agreed to transport drugs across the border for $600.

A federal grand jury indicted Bravo for importing marijuana and possessing marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 952, and 960. The district court denied Bravo's motion to suppress the evidence found in his vehicle because the search of the truck's toolbox was routine and did not require an elevated level of suspicion. Even if the search had been non-routine, the district court found that it was supported by reasonable suspicion. It also denied Bravo's motion to suppress his confession because, when Inspector Tijerina escorted Bravo to the security office in handcuffs, he had merely been detained and was not under arrest. After the district court's decision, Bravo pled guilty to one count of the indictment pursuant to a conditional plea agreement that allowed him to appeal. The district court sentenced Bravo to twelve months and one day in custody and three years of supervised release. This timely appeal followed.

II

The task of guarding our country's borders is one laden with immense responsibility. We recognize that "[c]areful review of transit through our international borders is essential to national security, health, and public welfare." United States v. Okafor, 285 F.3d 842, 845 (9th Cir.2002); see also United States v. Montoya de Hernandez, 473 U.S. 531, 544, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985) ("At the border, customs officials have more than merely an investigative law enforcement role. They are also charged, along with immigration officials, with protecting this Nation from entrants who may bring anything harmful into this country."). Searches of individuals seeking entrance into our country "may interdict those who would further crime, introduce matter harmful to the United States, or even threaten the security of its citizens." Okafor, 285 F.3d at 845.

Thus, it has long been established that routine searches at our international borders do not require objective justification, probable cause, or a warrant. Montoya de Hernandez, 473 U.S. at 538, 105 S.Ct. 3304 ("Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant."). Of course, the search must be "routine" to fall under this broad category of permissible suspicionless searches. We have determined that searches involving extended detention or an intrusive search of a person's body are not routine. See, e.g., United States v. Ramos-Saenz, 36 F.3d 59, 61 (9th Cir.1994); see also Montoya de Hernandez, 473 U.S. at 541 n. 4, 105 S.Ct. 3304 (listing strip, body cavity, or involuntary x-ray searches as non-routine border searches). In those circumstances, customs officials are required to have "reasonable suspicion" to support the search. See United States v. Gonzalez-Rincon, 36 F.3d 859, 864 (9th Cir.1994) (reasonable suspicion required for continued detention and x-ray examination of suspected alimentary canal drug smuggler at border); Ramos-Saenz, 36 F.3d at 61.

Bravo argues that the search of the toolbox on his truck was a non-routine border search because it involved force and caused damage. If the search was non-routine, it must have been supported by a reasonable suspicion of illegal activity. We recently extended the non-routine border search doctrine to vehicles and other objects — not just bodies. United States v. Molina-Tarazon, 279 F.3d 709 (9th Cir.2002), established a non-exhaustive list of factors to determine when a search morphs from routine to non-routine: use of force, danger to the person whose possession is being searched, and the psychological intrusiveness of the search.

In Molina-Tarazon, customs agents removed and dismantled the fuel tank of Molina-Tarazon's truck looking for contraband. A mechanic hoisted the truck onto a lift and removed several bolts and straps that connected the tank to the truck, which also disengaged electrical connections and hoses. Id. at 712. After removing the sensing unit, the mechanic discovered 31 packages of marijuana inside the fuel tank. Id. Using the three factors listed above, we held that this was a non-routine search, but the customs agents had reasonable suspicion to support it. Id. at 717-18. We now apply Molina-Tarazon's factors to the case before us.

First, Molina-Tarazon noted that "while force is a factor in assessing a search's intrusiveness, it is not dispositive. For example, if the lock is jammed on a suitcase ..., agents have to employ some degree of force to gain access to its interior. But this fact alone does not render a search overly intrusive." Id. at 714.¹ The use of tools, breaking, drilling, or permanently altering a portion of the item being searched constitutes the use of force. Id. Here, Inspector Tijerina used tools to hammer loose an access plate to a compartment of Bravo's toolbox. This damaged the toolbox, or, as Inspector Tijerina's testified at the evidentiary hearing:

Q: If you wanted to put [the toolbox] back...