U.S. v. Soto-Soto

• Decision Date: 12 June 1979
• Docket Number: No. 77-1489,SOTO-SOT,D,77-1489
• Citation: 598 F.2d 545
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Vidalefendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 545

598 F.2d 545

61 A.L.R.Fed. 280

UNITED STATES of America, Plaintiff-Appellant, v. Vidal SOTO-SOTO, Defendant-Appellee.

No. 77-1489.

United States Court of Appeals Ninth Circuit.

June 12, 1979.

Howard B. Matloff, Asst. U. S. Atty. (on the brief), Terry J. Knoepp, U. S. Atty., Howard B. Matloff, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellant.

Howard Frank, San Diego, Cal., for defendant-appellee.

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

Before BROWNING and CHOY, Circuit Judges, and FERGUSON, ^* District Judge.

FERGUSON, District Judge.

The government appeals from an order of the district court granting defendant's motion to suppress from evidence marijuana found in defendant's pickup truck by an agent of the Federal Bureau of Investigation at Calexico, California, a port of entry at the United States-Mexico border. We hold that the district court did not err in suppressing the evidence.

FACTS

1. On October 28, 1976, Thomas J. Summers, Jr., an agent of the Federal Bureau of Investigation (FBI), was conducting an inspection to locate stolen vehicles. He was inspecting automobiles as they entered the United States from Mexico through the commercial gate at the port of entry at Calexico, California.

2. FBI Agent Summers selected for inspection late-model pickups, especially Fords and Chevrolets, as being likely to have been stolen in the United States and transported to Mexico.

3. At approximately 9:10 a. m., the defendant attempted entry into the United States through the commercial gate at Calexico. He was driving a 1976 Chevrolet pickup and this fact was the sole basis for Agent Summer's decision to stop the vehicle.

4. Agent Summers stopped the defendant's truck and informed him that he was with the FBI and that federal law enforcement agencies were conducting an inspection of vehicles to determine if they were stolen. Agent Summers asked the defendant to park the pickup in a designated area off to one side.

5. The defendant parked his pickup in the designated area. Agent Summers asked him for the registration papers for the pickup. The defendant handed him the papers and Agent Summers compared the registration number on these papers with the vehicle registration number on the safety sticker on the door post. The numbers were identical.

6. Agent Summers then went to the hood of the truck and lifted it. His purpose in lifting the hood was to check the confidential serial number stamped on the truck frame on the driver's side. Upon lifting the hood, he observed numerous packages beneath the hood. These packages were found to contain marijuana.

7. Agent Summers did not seek or receive consent from the defendant to open the hood. At no time did Agent Summers procure a warrant for any part of the search of the defendant's truck.

The district court held that: (1) Agent Summers had no founded suspicion upon which to stop the defendant's pickup and therefore had no authority to proceed under California Vehicle Code § 2805 and (2) this was not a border search under 19 U.S.C. § 482 because the search was conducted without participation by or coordination with customs agents. The district court held that the marijuana was illegally seized and granted the defendant's motion to suppress.

The government then made a motion to reconsider the motion to suppress, arguing that the defendant had no reasonable expectation of privacy when he crossed the Mexico-United States border and therefore the search was not illegal. The district court denied this motion.

The government appeals from the district court's decisions reasserting that (1) the search was authorized under California Vehicle Code § 2805; (2) the search was authorized as a border search; and (3) the search was reasonable because the defendant had no expectation of privacy at the border.

CALIFORNIA VEHICLE CODE § 2805

At the time of this search, § 2805 of the California Vehicle Code stated:

A member of the California Highway Patrol may inspect any vehicle of a type required to be registered under this code on a highway or in any public garage, repair shop, parking lot, used car lot, automobile dismantler's lot, or other similar establishment, for the purpose of locating stolen vehicles, investigating the title and registration of vehicles, or inspection of vehicles wrecked or dismantled.

FBI Agent Summers claims that the FBI was conducting vehicle inspections in conjunction with the California Highway Patrol under the authority of § 2805. Even assuming that such cooperation was both present and proper, the inspection of defendant's pickup was not justified under § 2805.

The Supreme Court recently addressed the issue of discretionary spot checks in Delaware v. Prouse, --- U.S. ----, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979):

Accordingly, we hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment.

Even prior to this case, this Circuit has limited the lawful authority under § 2805 to situations where there is founded suspicion of illegal activity. See United States v. Carrizoza-Gaxiola, 523 F.2d 239 (9th Cir. 1975) (authority to conduct search under Arizona statute similar to § 2805 requires founded suspicion); United States v. Solomon, 528 F.2d 88, 90-91 (9th Cir. 1975) (actions and statements of defendant prior to search gave rise to reasonable belief that automobile contained evidence that it was stolen); United States v. Fisch, 474 F.2d 1071, 1075 (9th Cir.), Cert. denied, 412 U.S. 921, 93 S.Ct. 2742, 37 L.Ed.2d 148 (1973) (stopping and searching van which had been seen twice near the site of air drop of marijuana was justifiable and lawful).

The situation in United States v. Carrizoza-Gaxiola, Supra, is most similar to the instant case. There, a team of federal and Arizona law enforcement officers were looking for stolen cars and were stopping automobiles matching a certain broad profile of vehicles commonly stolen in Phoenix and Tucson and transported to Mexico. Defendant was stopped because he was driving a late-model Ford LTD, a vehicle included in the profile. This court relied on Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and required founded suspicion to justify the search in accordance with the Fourth Amendment. The government claimed that founded suspicion was present by virtue of several factors: the driver was Mexican, he was driving toward Mexico in a car with Mexican license plates and late-model Ford LTDs were in the profile of commonly stolen cars. These reasons were found to be insufficient to create founded suspicion:

Founded suspicion requires some reasonable ground for singling out the person stopped as one who was involved or is about to be involved in criminal activity. (citations omitted) Driving a car as common as a Ford LTD is not suspicious nor is driving it toward Nogales. That the driver appeared to be Mexican and that the car had Mexican license plates add nothing beyond residence in the country to which some stolen vehicles have been transported. Mexicans commonly drive into this country and then, not surprisingly, drive back. 523 F.2d at 241.

In this case, the defendant was stopped solely because he was driving a late-model Ford pickup. A stop and search based only on this factor is not authorized under California Vehicle Code § 2805, limited as required by the Fourth Amendment.

BORDER SEARCH

The government claims that the search by FBI Agent Summers of the defendant's pickup was a "border search" authorized under 19 U.S.C. § 482:

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, whenever found, in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law; . . . .

The term "border search" describes searches under § 482 without warrant or probable cause and incorporates certain limitations imposed upon the right of customs agents to conduct these searches. United States v. Weil, 432 F.2d 1320, 1323 (9th Cir. 1970).

Two established interests conflict in this case. There is the interest of the federal government in regulating and protecting its borders. There is also the interest of the defendant in the constitutional guarantee to protection from unreasonable search and seizure under the Fourth Amendment. These interests require careful balancing. Delaware v. Prouse, supra, --- U.S. at ----, 99 S.Ct. 1391; United States v. Martinez-Fuerte, 428 U.S. 543, 555, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1975); and United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1974). It is firmly established that the right of the sovereign to search at the borders supersedes that of the individual's privacy rights and that border searches, conducted pursuant to the "long-standing right of the sovereign to protect itself," are not subject to the warrant provisions of the Fourth Amendment. United States v. Ramsey, 431 U.S. 606, 616-617, 97 S.Ct. 1972, 1979, 52 L.Ed.2d 612 (1976).

This long-standing right, however, is not without qualification and limitation. In September 1789, Congress passed the first customs statute two months before it proposed the...