U.S. v. Cortez-Rocha

• Decision Date: 21 September 2004
• Docket Number: No. 03-50491.,03-50491.
• Citation: 383 F.3d 1093
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Julio CORTEZ-ROCHA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

383 F.3d 1093

UNITED STATES of America, Plaintiff-Appellee, v. Julio CORTEZ-ROCHA, Defendant-Appellant.

No. 03-50491.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 8, 2004.

Decided September 21, 2004.

Ellis M. Johnston III, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

Carol C. Lam, United State Attorney, Patrick K. O'Toole (at oral argument and on brief), Joseph S. Smith, Jr., (on brief), Assistant United States Attorneys, U.S. Attorney's Office, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Thomas J. Whelan, District Judge, Presiding. D.C. No. CR-03-00576-TJW.

Before: TROTT, RYMER, and THOMAS, Circuit Judges.

TROTT, Circuit Judge:

Julio Cortez-Rocha appeals from his conviction following a conditional guilty plea for importation of marijuana in violation of 21 U.S.C. §§ 952 and 960. He asserts that the district court should have suppressed the marijuana discovered during a border search of his vehicle because the invasive search of his vehicle's spare tire was obtained pursuant to an invalid border search. We hold that the border search of Cortez-Rocha's tire did not require reasonable suspicion, and we affirm.

I. Background

Cortez entered the United States at the Calexico, California Port of Entry on February 16, 2003 as the driver and sole occupant of a 1979 Chevrolet pickup truck. During a preprimary inspection, a narcotics detector dog alerted to the rear area of Cortez's truck. The vehicle was then referred to the secondary inspection area, where a customs inspector placed a handheld density meter against the side of the vehicle's spare tire. The meter registered a high reading indicating the possible presence of contraband. Customs inspectors then removed the spare tire from underneath the vehicle and proceeded to cut open and inspect the inside of the tire. Therein, the inspectors discovered ten brick-shaped packages, which contained 42.22 kilograms of marijuana. Cortez was arrested as a result of this discovery.

On February 26, 2003, a two-count indictment was filed in the Southern District of California, charging Cortez with importation of marijuana and possession of marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841, 952, and 960. On March 24, 2003, Cortez filed a motion to suppress the marijuana evidence, asserting that it was obtained in violation of the Fourth Amendment. Specifically, Cortez asserted that the cutting open of his spare tire was a non-routine search that must be justified by particularized suspicion. The district court denied Cortez's motion, concluding that the cutting open of the spare tire was a routine border search that did not require reasonable suspicion. Thereafter, Cortez entered a conditional plea of guilty to the importation charge, preserving his right to appeal the denial of the suppression motion. On September 22, 2003, Cortez was sentenced to time-served plus a two-year period of supervised release.

II. Jurisdiction and Standard of Review

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court's denial of a motion to suppress and the district court's determination of whether the government has conducted a legal border search. United States v. Camacho, 368 F.3d 1182, 1183 (9th Cir.2004).

III. Discussion

In this case, we must determine whether the border search of Cortez's vehicle, which included a border investigator cutting open Cortez's spare tire, required reasonable suspicion.¹ Cortez contends that cutting open a spare tire without reasonable suspicion must be deemed constitutionally unreasonable because of "`the particularly offensive manner it is carried out.'" United States v. Flores-Montano, 541 U.S. 149, 124 S.Ct. 1582, 1587 n. 2, 158 L.Ed.2d 311 (2004) (quoting United States v. Ramsey, 431 U.S. 606, 618, n. 13, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977)).

A.

"Border searches, ... from before the adoption of the Fourth Amendment, have been considered to be `reasonable' by the single fact that the person or item in question had entered into our country from outside." United States v. Ramsey, 431 U.S. at 619, 97 S.Ct. 1972. In order to protect the country from the entry of drugs, weapons, explosives, and unauthorized persons and things, the government must be empowered to conduct searches of containers crossing an international border. See id. at 618-19, 97 S.Ct. 1972. "The border-search exception is grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country." Id. at 620, 97 S.Ct. 1972.

Recently, the Supreme Court addressed the scope of the government's authority to perform vehicular border searches without reasonable suspicion, holding that it "includes the authority to remove, disassemble, and reassemble a vehicle's fuel tank." Flores-Montano, 124 S.Ct. at 1587. The Court indicated that "[e]specially destructive searches of property, however, may require reasonable suspicion." United States v. Bennett, 363 F.3d 947, 951 (9th Cir.2004) (citing Flores-Montano, 124 S.Ct. at 1587) (emphasis added). The Court did not, however, elucidate which searches, if any, are "so destructive" as to require reasonable suspicion. See Flores-Montano, 124 S.Ct. at 1587.

Cortez argues that this case is similar to out-of-circuit cases, which hold that the explorative drilling into the body of a vehicle at the border requires reasonable suspicion. See United States v. Rivas, 157 F.3d 364 (5th Cir.1998); United States v. Robles, 45 F.3d 1 (1st Cir.1995); United States v. Carreon, 872 F.2d 1436 (10th Cir.1989). "Flores-Montano explicitly left open the question of whether explorative drilling searches of vehicles must be supported by reasonable suspicion." Bennett, 363 F.3d at 951 n. 3 (citing Flores-Montano, 124 S.Ct. at 1587 n. 2 ("We have no reason at this time to pass on the reasonableness of drilling, but simply note ... that this case involves the procedure of removal, disassembly, and reassembly of a fuel tank, rather than potentially destructive drilling.")).

We are not persuaded that the reasoning contained in the explorative-drilling cases mandates a reasonable suspicion requirement in this case. First, the application of the routine/non-routine balancing test in these cases was specifically refuted in Flores-Montano. Flores-Montano, 124 S.Ct. at 1585 (expressing disapproval at use of "routine" as the basis of balancing test in the border search context); see also Rivas, 157 F.3d at 367 (concluding that "drilling into the body of the vehicle at a border checkpoint" is a "nonroutine search"); Robles, 45 F.3d at 5 ("We have little difficulty concluding that drilling a hole into the cylinder was not a routine search."); see also Carreon, 872 F.2d at 1442 (not addressing the question of whether the search was routine because reasonable suspicion justified use of electric drill search by border inspectors).

Moreover, although Flores-Montano indicates that the government's inherent authority to conduct border searches may be limited to searches that are not unreasonably destructive, the search of a vehicle's spare tire, which neither damages the vehicle nor decreases the safety or operation of the vehicle, is not so destructive as to be unreasonable. See United States v. Vargas-Castillo, 329 F.3d 715, 722 (9th Cir.2003) (search of spare tire did not "reach `the degree of intrusiveness present in a strip search or body cavity search'") (quoting United States v. Ramos-Saenz, 36 F.3d 59, 61 (9th Cir.1994)).

Although cutting a spare tire is certainly damaging to that tire, the important factor is whether the procedure results in significant damage to, or destruction of, the vehicle. See Flores-Montano, 124 S.Ct. at 1587 (gas tank search was not a significant deprivation of property because the procedure "can be reversed without damaging the safety or operation of the vehicle") (emphasis added). In this case, there was no significant damage to Cortez's vehicle. There is no doubt that the search and disabling of a vehicle's spare tire does not in any way hinder the operation of the vehicle or impede the traveler's immediate ability to continue his travels using the vehicle. See Flores-Montano, 124 S.Ct. at 1586-87 (explaining that border searches involving reassembled gas tanks do not hinder vehicles' ability to continue entry into the United States). Nor does the disabling of a spare tire undermine the immediate safety of the vehicle or threaten the security of the vehicle's driver or passengers. Indeed, because cutting the spare tire cannot affect or undermine the vehicle's operation or safety, the procedure is even less damaging to the vehicle than is the removal and reassembly of a vehicle's gas tank, a procedure that, while potentially affecting the vehicle's operation, nonetheless does not require reasonable suspicion. See id. at 1587. Finally, any motorist whose vehicle has in fact been damaged during such a search is free to pursue recovery in the form of civil damages. See id. (citing 31 U.S.C. § 3723; 19 U.S.C. § 1630).

In this context, a vehicle's spare tire, which is not an operational component of the vehicle, is analogous to a closed suitcase or other container often found inside of a vehicle. The government's longstanding authority to search containers and concealed areas of vehicles crossing the border reflects the practical reality that "[c]ontraband goods rarely are strewn across the trunk or floor of a car; since by their very nature such goods must be withheld from public view, they rarely can be placed in an automobile unless they are enclosed within some form of container." United States v. Ross, 456 U.S. 798, 820 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); see also Henderson v. United States, 390 F.2d 805, 808 (9th Cir.1967) ("[E]very person crossing...