U.S. v. Sandoval Vargas

• Citation: 854 F.2d 1132
• Decision Date: 08 August 1988
• Docket Number: No. 87-5179,87-5179
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Salvador SANDOVAL VARGAS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1132

854 F.2d 1132

UNITED STATES of America, Plaintiff-Appellee, v. Salvador SANDOVAL VARGAS, Defendant-Appellant.

No. 87-5179.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 11, 1987.

Decided April 27, 1988.

As Amended Aug. 8, 1988.

Larry N. Ainbinder, Federal Defenders, San Diego, San Diego, Cal., for defendant-appellant.

Patrick O'Toole, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before BROWNING, HUG and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

On February 26, 1987, Sandoval Vargas was charged with importing into the United States and possessing with intent to distribute approximately 25 kilograms of marijuana. Sandoval Vargas moved to suppress the marijuana, which was recovered through a border search of his car. The district court denied the motion. Sandoval Vargas then entered a conditional plea of guilty to the importation charge, pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure. The parties stipulated to the facts surrounding the border search. The plea was accepted and the possession charge was dismissed. Sandoval Vargas appealed his conviction, challenging the validity of the border search. The sole question before us is whether individualized or reasonable suspicion is required--by Constitution, statute, or both--before a vehicle may be searched at the border.

With regard to the facts of the search of Sandoval Vargas' car, the complete stipulation of the parties is as follows:

On February 15, 1987, at about 2:25 p.m., defendant Sandoval drove a gray 1973 Volkswagon from Mexico into the United States at the port of entry in Tecate, California. At primary inspection, Customs Inspector Edwin D. Sutehall randomly referred eight vehicles, including defendant Sandoval's, to secondary inspection to be searched. At this time, there was no probable cause or individualized reasonable suspicion to search the vehicle. At secondary inspection, Customs inspectors conducted a border search of defendant Sandoval's vehicle and found approximately 25 kilograms of marijuana hidden in it.

Constitutional Issue

Sandoval Vargas contends first that the search of his car violates the fourth amendment. Specifically, he argues that a random border search that lacks individualized reasonable suspicion fails to satisfy the fourth amendment's reasonableness requirement. The government asserts that the Constitution does not require individualized or reasonable suspicion for a search at the border. We agree with the government.

In United States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977) the Supreme Court stated explicitly that border searches constitute a special category under the fourth amendment. The Court reviewed the history of judicial treatment of border searches and declared: "That searches made at the border, pursuant to the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration." Id. at 616, 107 S.Ct. at 1978. The Court expressly reaffirmed the historical view that border searches are reasonable within the meaning of the fourth amendment "by the single fact that the person or item in question had entered into our country from outside." Id. at 619, 107 S.Ct. at 1980.

That view was restated by the Supreme Court in 1985. United States v. Montoya de Hernandez, 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985), involved the extended detention and non-routine search of a "balloon smuggler" at the Los Angeles airport. The Court held that reasonable suspicion is required for the detention of a traveler at the border "beyond the scope of a routine customs search and inspection." Id. at 541, 105 S.Ct. at 3310. However, the Court also noted: "Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant." Id. at 538, 105 S.Ct. at 3309 (footnote omitted). ¹

Our knowledge of the circumstances surrounding the border search of Sandoval Vargas' car is limited, but so far as we know from the stipulation, there is nothing about the search in this case that takes it out of the realm of routine border searches. Sandoval Vargas was clearly at the port of entry from Mexico. The stipulation does not indicate any extended period of detention or any unusual, offensive, or intrusive search of the defendant's person. There was merely a vehicle search by customs inspectors, typical of those conducted at the border. The fact that the search occurred at a secondary inspection point is not sufficient, in itself, to render this a non-routine search. Klein v. United States, 472 F.2d 847, 849 (9th Cir.1973). ² Nor is the fact that not all cars were searched, but only a randomly selected number. The law is clear that a border search of a vehicle in these circumstances is per se reasonable within the meaning of the fourth amendment. There was no constitutional violation.

Statutory Issue

Alternatively, Sandoval Vargas argues that a border search of a vehicle without individualized reasonable suspicion violates federal statutory standards. He points to 19 U.S.C. Sec. 482 (1982), which on its face requires suspicion for a customs search, and contends that that statute governs border searches. The government argues that 19 U.S.C. Sec. 1581 (1982), which does not include an express suspicion requirement applies to border searches, and that section 482 does not. ³ This is a more difficult question to resolve, because the law with respect to the effect of these statutes on border searches is at best confused--and confusing. However, we conclude, for the reasons explained below, that the two statutes do not impose any additional limitations on routine border searches of vehicles beyond those prescribed by the Constitution.

Section 482 provides:

Any of the officers or persons authorized to board or search vessels may stop, search, and examine ... 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 ... 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.

19 U.S.C. Sec. 482 (1982). Section 1581 provides:

Any officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States ... 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. Sec. 1581(a) (1982). ⁴ These provisions were both enacted as part of an 1866 customs statute. Act to Prevent Smuggling, ch. 201, Secs. 2-3, 14 Stat. 178, 178 (1866). ⁵ Section 1581 originally referred only to vessels. 14 Stat. at 178. Thus it appears that section 1581 (section 2 of the 1866 statute) was designed to give customs officials power to search vessels, and section 482 (section 3 of the statute) was intended to give those same officials authority to conduct land searches of persons, vehicles, and mail. ⁶ While the power to search vessels was clearly intended to be plenary, it is less clear what, if any, restrictions section 482 placed on border and mail searches.

In 1922, section 1581 was amended to add the reference to vehicles. Tariff Act of 1922, ch. 356, Sec. 581, 42 Stat. 858, 979. The amendment created a potential conflict between sections 1581 and 482, because section 482 appears on its face to require some degree of suspicion for a border search of a vehicle while section 1581 appears not to. See United States v. Most, 789 F.2d 1411, 1415 (9th Cir.1986) (noting apparent statutory conflict). In order to reconcile this seeming conflict, we will first attempt to bring some order to the cases in which we have applied these two statutes.

In DeVries v. Acree, 565 F.2d 577 (9th Cir.1977), we held that a search of first class letters from abroad must meet the "reasonable cause to suspect" standard contained in the latter portion of section 482. DeVries was decided shortly after the Supreme Court's 1977 decision in Ramsey, which held that section 482 authorizes customs searches of incoming international mail. 431 U.S. at 612-13, 97 S.Ct. at 1976-77. ⁷ In DeVries, we rejected the argument that section 482 permits mail searches to be conducted without individualized suspicion. Instead, we held that customs officials must have reasonable cause to suspect that letters contain contraband or dutiable merchandise before opening them. 565 F.2d at 579. ⁸ We also rejected the lower court's conclusion that the fact of entry of the letters into the United States was sufficient to supply reasonable suspicion. Id. at 578.

With regard to traditional border searches our precedent is somewhat less clear, at least as to which statute is applicable. In a 1979 case, United States v. Soto-Soto, 598 F.2d 545 (9th Cir.1979), we declared that section 482 "sets forth the requirements imposed by Congress for a valid border search." Id. at 548. We held that the search at issue--a border search of the defendant's car--failed to meet at least two of section 482's criteria: the search was conducted by an FBI agent rather than a customs official, and it was conducted for general law enforcement purposes (specifically to locate stolen vehicles) rather than to enforce customs laws. Id. at 549. Because the FBI agent had no authority to conduct a border search without warrant, consent, or probable cause, and because the search would...