322 F.3d 592 (9th Cir. 2002), 02-50155, United States v. Hernandez

Docket Nº:02-50155
Citation:322 F.3d 592
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BENITO HERNANDEZ, Defendant-Appellant.
Case Date:December 30, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 592

322 F.3d 592 (9th Cir. 2002)



BENITO HERNANDEZ, Defendant-Appellant.

No. 02-50155

United States Court of Appeals, Ninth Circuit

December 30, 2002

Argued and Submitted November 8, 2002

Amended March 5, 2003

Page 593

[Copyrighted Material Omitted]

Page 594


Todd W. Burns, Federal Public Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

Bruce R. Castetter, Assistant United States Attorney, Chief Appellate Section, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California M. James Lorenz, District Judge, Presiding., D.C. No. CR-01-02712-MJL

Before: William C. Canby, Ronald M. Gould and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Gould; Concurrence by Judge Berzon


The opinion, filed December 30, 2002, is AMENDED as follows (the page and line references are to the slip opinion):

Page 15, line 12: Following the sentence "It was proper for us to use the canon of constitutional avoidance in Buckland." add:

Hernandez, however, specifically points to the language in Harris rejecting "a dynamic view of statutory interpretation, under which the text might mean one thing when enacted yet another if the prevailing view of the Constitution later changed." Id. at 2413. Hernandez interprets this language as broadly precluding a court when interpreting a statute from considering constitutional rulings first announced only after the passage of the legislation at issue. Applying this understanding, Hernandez contends that our decision in Buckland must be reconsidered because it relied on a view of the Constitution developed, in the Supreme Court's decision in Apprendi, only after 21 U.S.C. § 841 was passed. We do not think that the Supreme Court intended such a broad reading of its language in Harris.

In Harris, the statute at issue, 18 U.S.C. § 924(c)(1)(A), was passed at a time when McMillan v. Pennsylvania, 477 U.S. 79 (1986) was the law of the land. McMillan "sustained a statute that increased the minimum penalty for a crime, though not beyond the statutory maximum, when the sentencing judge found, by a preponderance of the evidence, that the defendant had possessed a firearm." Harris, 122 S.Ct. at 2410. In that context, simply rejected the argument that the constitutional avoidance doctrine applies when there was a clearly articulated Supreme Court constitutional ruling at the time the statute was passed. Harris did not address the much more usual situation that existed in Buckland, in which a court interprets a statute so as to avoid a constitutional question that, at the time of the passage of the legislation, had not been definitively determined by the Supreme Court.

Harris therefore left untouched the fundamental principle of judicial restraint that ordinarily requires courts to construe statutes, if it is fairly possible to do so, in a way that avoids unnecessarily addressing constitutional questions. See Zadvydas v. Davis, 533 U.S. 678, 689 (2001) (" '[I]t is a cardinal principle' of statutory interpretation, however, that when an Act of Congress raises 'a serious doubt' as to its constitutionality, 'this Court will first ascertain whether a construction of the statute is fairly possible

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by which the question may be avoided.' ") (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)); see also Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 445 (1988) ("A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.").

Page 15, line 12-16: Replace "And Harris does not by its terms supplant the fundamental canon of constitutional avoidance: Courts can and should continue to adopt statutory interpretations, when feasible, that will avoid serious constitutional issues." with "Thus, Harris does not by its terms supplant the fundamental canon of constitutional avoidance: Courts can and should continue to adopt statutory interpretations, when feasible, that will avoid serious constitutional issues."

With these changes, Appellant's petition for panel rehearing and petition for rehearing en banc are denied. Fed. R. App. P. 35, 40.


GOULD, Circuit Judge:

In this case, we must decide whether the defendant Hernandez's presence in the rear seat of a vehicle containing commercial quantities of illegal drugs, in conjunction with all the other circumstances known to the arresting officers, created probable cause to arrest him.


On August 21, 2001, Benito Hernandez was sitting in the rear seat of his uncle's Ford Windstar Minivan when the vehicle entered the United States from Mexico. Hernandez's uncle and aunt respectively sat in the front driver seat and front passenger seat of the minivan. At the primary inspection area, a narcotics detector dog alerted to the presence of narcotics in the minivan. After the dog alert, Senior Customs Inspector Edwin Smura obtained a declaration from the driver, checked the legal status of the occupants, and asked the driver where he was going in the United States and where he was coming from in Mexico. While conducting this questioning, Inspector Smura noted that, "[the van's passengers] all seemed very nervous; very stiff, no eye contact, and [Jose Diaz, the driver,] seemed very slow to answer questions."

After this questioning, Inspector Smura used a density meter to check the vehicle and obtained a very high reading on the driver's side of the van. Next, Smura asked the driver, Jose Diaz, to step out of the van. Smura searched the inside of the driver's door and saw clear plastic wrapped packages that he believed contained illegal drugs.

The three occupants of the minivan were then handcuffed and escorted to a secondary security office where the handcuffs were removed. The occupants were required to wait on a bench. About five to ten minutes after the three occupants were taken to the security office, the contents of the packages were confirmed to be marijuana, which was later determined to weigh 44.20 kilograms (97.24 pounds). At this point all three occupants of the minivan, including Hernandez, were again handcuffed, and Hernandez was advised of his Miranda rights. Hernandez chose to make a statement and admitted that he was being paid $500 to act as "window dressing" to facilitate the smuggling of the marijuana by giving the impression of an innocent family returning from vacation.

On December 12, 2001, Hernandez pled guilty to one count of importing marijuana Page 596

in violation of 21 U.S.C. §§ 952 and 960 and 18 U.S.C. § 2 pursuant to a conditional plea agreement that preserved his right to appeal the court's denial of (1) his motion to suppress; and (2) his motions related to Apprendi. On May 5, 2002, the district court sentenced Hernandez to one month imprisonment, and three months residence in a halfway house during the beginning of his three year term of supervised release. This appeal follows. II

"The task of guarding our country's border is one laden with immense responsibility."1 United States v. Bravo, 295 F.3d 1002, 1005 (9th Cir. 2002). Border agents serve as our first line of defense in preventing people intent on violating our laws from coming into our country. But in doing so, these border agents have a related duty to protect the basic rights of individuals who legally cross into our country. To effectuate the dual goals required of our border agents, we have allowed border agents to search both persons and objects that arrive at our borders "without any articulable level of suspicion, so long as the search is routine." See United States v. Okafor, 285 F.3d 842, 845 (9th Cir. 2002). But we have maintained the requirement that police, and here border agents, need probable cause to make a warrantless arrest of an individual. See United States v. Del Vizo, 918 F.2d 821, 825 (9th Cir. 1990). Whether border agents have probable cause to arrest an individual is a mixed question of law and fact. United States v. Buckner, 179 F.3d 834, 837 (9th Cir...

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