U.S. v. Sutter

• Decision Date: 25 August 2003
• Docket Number: No. 02-50282.,02-50282.
• Citation: 340 F.3d 1022
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jonathon Marc SUTTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

340 F.3d 1022

UNITED STATES of America, Plaintiff-Appellee, v. Jonathon Marc SUTTER, Defendant-Appellant.

No. 02-50282.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 16, 2003 — Pasadena, California.

Filed August 25, 2003.

As Amended November 4, 2003.

Ross E. Viselman, San Diego, California, for the defendant-appellant.

Carol C. Lam, United States Attorney, Francisco J. Sanchez, Jr., Assistant United States Attorney (on the brief), Roger W. Haines, Jr., and Francisco J. Sanchez, Jr., Assistant United States Attorneys, Criminal Division, (at oral argument), San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Judith N. Keep, District Judge, Presiding. D.C. No. CR-01-02799-JNK.

Before: A. Wallace TASHIMA, Marsha S. BERZON, and Richard R. CLIFTON, Circuit Judges.

BERZON, Circuit Judge.

The tick-tock of the Speedy Trial Act clock is difficult to measure when the parties allow a pre-trial discovery motion to pend indefinitely in the absence of any live discovery dispute. We conclude that where a discovery motion is pending on the docket, but the district court is neither awaiting additional submissions nor has indicated that the motion requires a future hearing, the discovery motion is "under advisement" under 18 U.S.C. § 3161(h)(1)(J), and a maximum of thirty days can be excluded under that provision.

On the unique facts of this case, however, there was no Speedy Trial Act violation. We also reject Sutter's challenge of the district court's denial of his motion to suppress evidence retrieved during a border search.

I. BACKGROUND

Jonathon Marc Sutter appeals from a conditional guilty plea, challenging the district court's denial of his suppression motion, as well as from the denial of his motion to dismiss under the Speedy Trial Act.

A. The Border Search

The events leading to Sutter's arrest took place at the United States port of entry at Calexico, CA. A primary inspection agent, Agent Jackson, asked Sutter several questions regarding his citizenship and his vehicle. Agent Jackson then asked Sutter to open the trunk, but Sutter stated that he could not find the button inside the car which opened the trunk, nor did he possess the trunk key. Agent Jackson thereupon sent Sutter to a secondary inspection area, where Custom Inspector Hernandez further questioned him. A narcotics dog alerted to the trunk of Sutter's car, whereupon Inspector Hernandez pressed the trunk release button on the driver's side door, opening the trunk and revealing marijuana.

B. Proceedings Below

The government filed an indictment charging Sutter on September 12, 2001, and arraigned him on September 18. Because Sutter's Speedy Trial Act claim depends on the intricacies of the procedural history, we describe the timeline in some detail.

On October 22, 2001, Sutter filed several motions, including a motion to compel discovery, a motion to suppress the evidence obtained from his trunk, a motion to suppress post-arrest statements, and a motion to dismiss based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

On November 13, 2001, the district court (Judge Bryan)¹ heard the motions. Judge Bryan denied the motion to dismiss, denied the motion to suppress evidence due to an illegal search, and, because the necessary government witnesses were not present, continued until December 6, 2001, the suppression hearing regarding the post-arrest statements. The discovery motion was, according to the district court docket, granted in part and continued in part. The parties dispute, however, whether there were actually any live discovery issues pending after the hearing.

On December 6, 2001, as part of his attempt to negotiate a plea with the prosecutor, Sutter withdrew his motion to suppress the post-arrest statements. The district court (now Judge Rothstein) set a motions in limine hearing for January 14, 2002, and a trial date for January 15. At this point, the remaining pending pretrial motions included, at most, only the motion to compel discovery. The district court confirmed with both the government and Sutter that the discovery motion was still pending.

The trial was thereafter continued, at Sutter's request. The motion in limine hearing was rescheduled for February 25, and the trial for February 26. No hearing was ever set for the discovery motion.

On February 12 Sutter filed a motion to dismiss the indictment because of a Speedy Trial Act violation. The motion to dismiss was denied by Judge Real. Sutter subsequently entered a conditional guilty plea.

II. ANALYSIS

A. Border Search

We may quickly dispose of Sutter's claim that the customs agents had no authority to search his trunk absent reasonable cause. Sutter contends that the search was not a "border search" governed by 19 U.S.C. § 1581 but rather, because he had technically entered the United States, a search not at the border and therefore governed by 19 U.S.C. § 482. The search was undeniably a border search.

The border search doctrine is a narrow exception to the Fourth Amendment prohibition against warrantless searches without probable cause. See United States v. Molina-Tarazon, 279 F.3d 709, 712 (9th Cir.2002). Pursuant to this exception, codified at 19 U.S.C. § 1581 and 1582,² "routine searches of persons and their effects entering the country may be conducted without any suspicion whatsoever." Molina-Tarazon, 279 F.3d at 712. Sutter advances no argument ment that the search of his trunk was not "routine," nor could he under the principles of Molina-Tarazon. See id. at 712-18. Therefore, if the search was conducted at the border, it is clear that the search was proper even absent "any suspicion whatsoever." Id. at 712.

Sutter argues that the border search exception does not apply because, having proceeded past the primary inspection area to the secondary inspection area, he had technically entered the United States. Therefore, he argues, the search was governed by 19 U.S.C. § 482 and reasonable cause was required.³

Sutter's argument entirely lacks merit. "Some searches, though not at the border, occur so spatially and temporally close to it that they are considered border searches." United States v. Ogbuehi, 18 F.3d 807, 813 (9th Cir.1994). Ogbuehi squarely controls the instant case. In Ogbuehi, an individual named Teague walked through the Tijuana port of entry, passing through the pedestrian inspection area without incident. See id. at 809. He waited outside the Customs Building for other members of his group to pass through inspection (the group had determined to enter the United States separately, to minimize suspicion). See id. at 809-10. Customs agents became suspicious of Teague, however, after questioning an individual named Ogbuehi and ascertaining that Ogbuehi and Teague, along with two others, had traveled together by bus to Tijuana. See id. A customs agent asked Teague to return to the Customs Building for further questioning, where a canine search revealed that Teague was transporting heroin. See id.

Teague argued that the search was invalid because the canine search was not a border search, as it occurred after he had already passed through Customs Inspection. See id. at 812. We flatly rejected this contention: "Without defining the outer limits of these searches, we have no trouble concluding that Teague's search, occurring minutes after he crossed the border and 60 feet from the Customs Office door, was a border search requiring no suspicion." Id. at 813.

That holding controls the instant case. The search of Sutter's trunk took place at a secondary inspection area and was therefore both temporally and geographically close enough to the border to be considered a border search. Indeed, Sutter's argument is even less compelling than the argument rejected in Ogbuehi. In Ogbuehi, Teague had already cleared customs and therefore had technically "arrived" in the United States. Here, Sutter's referral to secondary inspection area was part of, not subsequent to, his initial entry into the United States.

Nothing in United States v. Taghizadeh, 41 F.3d 1263 (9th Cir.1994), relied on by Sutter, contradicts this conclusion. Taghizadeh held that searches of international packages are governed by 19 U.S.C. § 1582 and not by 19 U.S.C. § 482. See id. at 1265. Sutter relies on a passage which states "19 U.S.C. § 482 ... thus applies not to searches of arriving baggage or mail, but rather to baggage or mail or other items which have already `arrived'" Id. at 1266. Sutter latches on to the arriving/arrived distinction to argue that, because his car was physically present in the United States, it had already "arrived," so the customs agent's authority to search it was governed by § 482, not § 1582. Taghizadeh had no occasion to expound on the distinction between "arrived" and "arriving," however, and Sutter's hyper-technical argument relating to that distinction is foreclosed by Ogbuehi.

Because the search of Sutter's trunk was, under the border search doctrine, proper even absent reasonable suspicion, no evidentiary hearing on that issue was required. The district court properly denied Sutter's motion without a hearing.

B. The Speedy Trial Act

Under the Speedy Trial Act, Sutter had a right to a trial within seventy days of his arraignment. See 18 U.S.C. § 3161(c)(1).⁴ The government's failure to comply results in a dismissal of the indictment, although the district court must then decide whether to dismiss with or without prejudice. See § 3162(a)(2); see also United States v. Hardeman, 249 F.3d 826, 828-29 (9th Cir. 2001).

In calculating the time elapsed, certain types of delay do not count against the seventy-day time limit. See § 3161(h). The only type of excludable delay at issue in this case is delay resulting from pretrial motions. See § 3161(h)(1)(F) (excluding "delay resulting from any pretrial motion, from the...