394 F.3d 1115 (9th Cir. 2004), 03-50491, United States v. Cortez-Rocha

Docket Nº:03-50491.
Citation:394 F.3d 1115
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Julio CORTEZ-ROCHA, Defendant-Appellant.
Case Date:September 21, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1115

394 F.3d 1115 (9th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,

v.

Julio CORTEZ-ROCHA, Defendant-Appellant.

No. 03-50491.

United States Court of Appeals, Ninth Circuit

September 21, 2004

Argued and Submitted June 8, 2004.

Amended Jan. 20, 2005.

Page 1116

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

Carol C. Lam, United States Attorney, Patrick K. O'Toole, Joseph S. Smith, Jr., Assistant United States Attorneys (on brief), Patrick K. O'Toole, Assistant United States Attorney (at oral argument), United States 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.

ORDER

The Opinion filed September 21, 2004, and published at 383 F.3d 1093 (9th Cir. 2004) is amended as follows: on page 1097, insert the following text at the end of Section III. A.: We find strong support for our analysis and our conclusions in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1924) and United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). In Carroll, the Supreme Court had before it a disputed warrantless search conducted by prohibition agents who were looking for contraband whiskey suspected to be in an automobile. The whiskey was finally discovered when the agents tore open the car's upholstery in the area of the car's rumble seat. The issue was whether the search violated the Fourth Amendment.

The Court began its constitutional analysis of the tearing open of the upholstery by establishing for automobiles an exception to the Fourth Amendment's warrant requirement:

We have made a somewhat extended reference to these statutes to show that the guaranty of freedom from unreasonable searches and seizures by the 4th Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.

Having thus established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such search may be made.

Id. at 153-54, 45 S.Ct. 280.

Moving to the disputed search itself, the Court held that the warrantless tearing

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open of the vehicle's upholstery was not unreasonable. The court based its holding on the proposition that once it had been established that the car could be searched, the agents were entitled to search anywhere a warrant could have authorized the agents to look. "Since such a warrant could have authorized the agents to open the rear portion of the roadster and to rip the upholstery in their search for concealed whiskey, the search was constitutionally permissible." Ross, 456 U.S. at 818, 102 S.Ct. 2157.

Granted, the agents in Carroll had probable cause to search the vehicle for whiskey, but Carroll acknowledged the greater authority of the government, and the lesser privacy right for individuals, with respect to "[t]ravelers ... crossing an international boundary because of national self protection ...," Id. at 808, 45 S.Ct. 280, (quoting Carroll, 267 U.S. at 153-54, 45 S.Ct. 280), a theme reaffirmed in Flores-MontaNo.

Ross held also that:

[W]hen a legitimate search is underway, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of an automobile, must give way to the interest in the prompt and efficient completion of the task at hand.

[Footnote 28] The practical considerations that justify a warrantless search of an automobile and its contents have been completed. Arguably, the entire vehicle itself (including its upholstery) could be searched without a warrant....

Id. at 821, 821 n. 28, 102 S.Ct. 2157.

We deduce from this authority with respect to searches of automobiles that the answers to two questions become dispositive of the constitutionality of this kind of search. First, were the law enforcement officers involved justified in a search of the car; and second, was the " scope of the search... no greater than a magistrate could have authorized...." Ross, 456 U.S. at 818, 102 S.Ct. 2157.

Here, the answers are unequivocal. To the first question, yes, based on Flores-Montano and Carroll. The vehicle and its occupants were attempting to cross our border. The border search justification simply takes the place of the need in an ordinary case to show probable cause.

To the second, yes. A magistrate would be authorized under Carroll and Ross to include within the "scope" of the search warrant the cutting open of a spare tire in search of contraband.

With this amendment, Cortez-Rocha's Petition for Rehearing and Petition for Rehearing En Banc remain undecided and pending. In this respect, both parties may file with the Clerk of this Court simultaneous supplemental letter briefs not to exceed two (2) pages in length addressing the opinion as amended. The letter briefs shall be filed within fourteen (14) days of the date of this order. Should a party decide to forego supplemental briefing, the party shall promptly so notify the Clerk of the Court.

So ORDERED.

OPINION

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

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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, 1586 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,

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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...

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