U.S. v. Flores-Montano

• Decision Date: 14 September 2005
• Docket Number: No. 04-50497.,04-50497.
• Citation: 424 F.3d 1044
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Manuel FLORES-MONTANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

424 F.3d 1044

UNITED STATES of America, Plaintiff-Appellee, v. Manuel FLORES-MONTANO, Defendant-Appellant.

No. 04-50497.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 10, 2005.

Filed September 14, 2005.

Benjamin L. Coleman, Esquire, San Diego, CA, for the appellant.

Mark R. Rehe, Assistant United States Attorney, San Diego, CA, with Patrick K. O'Toole, Assistant United States Attorney, also on the brief for the appellee.

Before B. FLETCHER, RYMER, and FISHER, Circuit Judges.

PER CURIAM.

Appellant Manuel Flores-Montano appeals from the denial of his motion to suppress evidence and the resulting conditional-plea conviction for "illegal importation of merchandise" after border inspectors found thirty-seven kilograms of marijuana in the gas tank of his vehicle during a search of Flores-Montano's vehicle as he was at the border attempting to enter the country. Flores-Montano contends that inspectors unlawfully searched his gas tank in violation of 19 U.S.C. § 482, which he contends requires some "subjective" or "good faith" suspicion prior to conducting a search. We hold that 19 U.S.C. § 1581(a), not § 482, authorizes and governs vehicle searches at the border. Because § 1581(a) contains no suspicion requirement, we affirm the conviction.

I.

On February 12, 2002, appellant Manuel Flores-Montano drove a Ford Taurus station wagon to the United States border at the Otay Mesa Port of Entry in Southern California. The border inspector noticed that Flores-Montano avoided eye contact during routine questioning, and that his hand was shaking when he produced identification. The inspector then tapped on the vehicle's gas tank and noted that it sounded solid. A narcotics-sniffing canine was then summoned, and the dog alerted on the vehicle.¹ At that point, Flores-Montano was escorted to the security office and his vehicle was taken to secondary inspection.

Within twenty to thirty minutes, a mechanic arrived and removed the gas tank. The car was raised in the air on a lift, and the mechanic loosened bolts and straps on the undercarriage of the car and removed some hoses and electrical connections so that the gas tank could then be lowered. This procedure took approximately ten to fifteen minutes. Once the tank had been removed, the inspector hammered off some adhesive "bondo" that had been applied over an access plate. The access plate was then removed, and thirty-seven kilograms of marijuana were found wrapped in cellophane and tape. The removal of the adhesive "bondo" and access plate took another ten to fifteen minutes. None of the procedures caused any significant damage to the gas tank or vehicle; the government concedes that the tank might have been scratched or slightly dented, but asserts that all vehicle components could have been replaced without any perceptible damage.

Flores-Montano was originally charged with narcotics importation. When the government expressly declined to rely on the dog sniff and other facts to justify its search, Flores-Montano moved to suppress the evidence as having been seized during a search unsupported by reasonable suspicion in violation of the Fourth Amendment. The district court granted the motion and suppressed the evidence. On appeal we affirmed the suppression. The Supreme Court reversed, holding that no suspicion was required to perform a gas tank search at the border. United States v. Flores-Montano, 541 U.S. 149, 124 S.Ct. 1582, 158 L.Ed.2d 311 (2004).

On remand to the district court, Flores-Montano again moved to suppress, arguing that the search was one involving "destructive force," which must be supported by a reasonable suspicion of unlawful activity. The district court denied the motion, and Flores-Montano again entered a conditional guilty plea and appealed the denial of the suppression motion. In the present appeal, Flores-Montano abandons his Constitutional "destructive force" argument, and advances for the first time that 19 U.S.C. § 482 requires that border inspectors have some "subjective" or "good faith" suspicion of wrongdoing in order to carry out a search that is at least minimally damaging. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and we affirm.

II.

As an initial matter, the government argues that Flores-Montano's statutory claim for relief has been waived, as it was never raised before the district court. While issues not raised to the district court normally are deemed waived, we have recognized three narrow exceptions to this general rule. United States v. Robertson, 52 F.3d 789, 791 (9th Cir.1994). Specifically, we may review newly presented issues:

[I]f (1) there are "exceptional circumstances" why the issue was not raised in the trial court, (2) the new issue arises while the appeal is pending because of a change in the law, or (3) the issue presented is purely one of law and the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court. Further exception may be made when plain error has occurred and an injustice might otherwise result.

Id. (quoting United States v. Flores-Payon, 942 F.2d 556, 558 (9th Cir.1991) (internal quotations omitted)).

This case falls squarely within the third exception. We conclude that the "the issue presented is purely one of law and the [government] will suffer no prejudice as a result of the failure to raise the issue in the trial court."² Id. (internal quotations omitted). We therefore exercise our discretion to review Flores-Montano's assertion that there is a federal statutory requirement that border agents have some modicum of suspicion before conducting a minimally destructive search.

III.

Flores-Montano argues that both 19 U.S.C. § 482 and 19 U.S.C. § 1581(a) govern border searches, and that § 482 requires a border inspector to have some "subjective" or "good faith" suspicion in order to conduct a destructive search, even where the damage to property is minimal.

Section 482 reads in full:

Search of vehicle and persons.

(a) Any of the officers or persons authorized to board or search vessels may stop, search, and examine, as well without as within their respective districts, any vehicle, beast, or person, on which or whom he or they shall suspect there is merchandise which is subject to duty, or shall have been introduced into the United States in any manner contrary to law, whether by the person in possession or charge, or by, in, or upon such vehicle or beast, or otherwise, and to search any trunk or envelope, wherever found, in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law; and if any such officer or other person so authorized shall find any merchandise on or about any such vehicle, beast, or person, or in any such trunk or envelope, which he shall have reasonable cause to believe is subject to duty, or to have been unlawfully introduced into the United States, whether by the person in possession or charge, or by, in, or upon such vehicle, beast, or otherwise, he shall seize and secure the same for trial.

(b) Any officer or employee of the United States conducting a search of a person pursuant to subsection (a) of this section shall not be held liable for any civil damages as a result of such search if the officer or employee performed the search in good faith and used reasonable means while effectuating such search.

19 U.S.C. § 482 (emphasis added). Section 1581(a) reads:

Boarding vessels.

(a) Customs officers.

Any officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States or within the customs waters or, as he may be authorized, within a customs-enforcement area established under the Anti-Smuggling Act [19 U.S.C.A. § 1701 et seq.], or at any other authorized place, without as well as within his district, and examine the manifest and other documents and papers and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel or vehicle, and use all necessary force to compel compliance.

19 U.S.C. § 1581(a). The obvious difference between the two statutory provisions is that the former contains language that requires an officer to have "reasonable cause to suspect" that an item to be searched was improperly imported into the country, while the latter contains no such language. As recently amended, the former also shields a searching officer from liability so long as the search was performed in "good faith and used reasonable means." Flores-Montano asserts that both sections apply to border searches such as the one conducted in the instant case, and that the border agents therefore needed "reasonable cause" or a "good faith" belief that Flores-Montano was involved in unlawful activity before searching his vehicle. He relies on United States v. Sandoval Vargas, 854 F.2d 1132, 1134-40 (9th Cir.1988) (concluding that both provisions apply to searches of vehicles at the border).

In United States v. Taghizadeh, 41 F.3d 1263 (9th Cir.1994) (en banc), our unanimous en banc court held that 19 U.S.C. § 1582,³ rather than § 482, governs searches of "arriving baggage or mail." Id. at 1266. In contrast, § 482 only applies to "baggage or mail or other items which have already `arrived' but which are suspected of having been imported contrary to law." Id. We based this conclusion on the text of § 482, which authorizes searches of trunks and envelopes "wherever found," so long as there is reasonable cause to suspect that they contain "merchandise which was imported contrary to law." Id. (emphasis added). This language indicates § 482's applicability to searches of items already in the interior. The distinction between the two statutes is carried over into the regulations: § 482's reasonable-cause-to-suspect requirement is not incorporated into the regulations governing customs inspections of...