United States v. Jose Molina-Tarazon

279 F.3d 709 UNITED STATES of America, Plaintiff-Appellee, v. Jose MOLINA-TARAZON, Defendant-Appellant. No. 00-50171. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 7, 2000. Filed January 29, 2002. COPYRIGHT MATERIAL OMITTED Shaun Khojayan, Federal Defenders of San Diego, Inc., San Diego, California, argued the cause and submitted a brief for the appellant. Brian M. Pearce, Assistant U.S. Attorney (on the brief), Patrick K. O'Toole, United States Attorney (argued), U.S. Attorney's Office, San Diego, California, for the plaintiff-appellee. Appeal from the United States District Court for the Southern District of California; Barry T. Moskowitz, District Judge, Presiding. D.C. No. CR-99-02764-BTM. Before: D.W. NELSON, BRUNETTI and KOZINSKI, Circuit Judges. KOZINSKI, Circuit Judge. 1 Looking for contraband, customs agents removed and dismantled Jose Molina-Tarazon's fuel tank. We consider whether this procedure is a "routine" border search for which no suspicion whatsoever is required. 2 * At approximately 3:30 one early morning, Molina entered the United States from Mexico driving a pickup truck. Molina was directed to secondary, where Customs Inspector…

Looking for contraband, customs agents removed and dismantled Jose Molina-Tar-azon’s fuel tank. We consider whether this procedure is a “routine” border search for which no suspicion whatsoever is required.

I

At approximately 3:30 one early morning, Molina entered the United States from Mexico driving a pickup truck. Molina was directed to secondary, where Customs Inspector Kevin Brown ordered a narcotics-trained dog to sniff the truck. When the dog failed to alert, Brown inspected the truck’s undercarriage with an *712 autocreeper. 1 Brown then turned his attention on the gas tank.

Brown first tried to look into the tank with a fiberoptic scope, 2 but was stopped by an anti-siphoning valve. 3 He then summoned an off-site contracting mechanic, who arrived fifteen or twenty minutes later. The mechanic hoisted the truck onto a lift and removed several bolts and straps that connected the tank to the truck, disengaging electrical connections and hoses in the process. The mechanic then removed the sensing unit, revealing thirty-one packages of marijuana inside the tank.

Charged with violating 21 U.S.C. §§ 841 (a)(1), 951 and 960, Molina challenged the search on the grounds that the…

concurring in the result:

FACTS

On September 10, 1999, at approximately 3:36 a.m., Jose Molina-Tarazon entered the Calexico West Port of Entry. He was the sole occupant of a 1991 Dodge Dakota pickup truck. He was met by U.S. Customs Inspector George Volz. Inspector Volz initially became suspicious because Molina Tarazón was wearing a brand new hat perched on top of his head “like he was afraid to mess up his hair”, and also wearing black horn-rimmed glasses. Inspector Volz explained that prior experience working the pedestrian lanes, where mainly farm-workers enter, led him to suspect Molina Tarazón was impersonating a U.S. citizen. This led Inspector Volz to doubt Molina-Tarazon’s declaration that he was a United States citizen, and to further inspect the vehicle for signs of smuggling.

After an inspection of the gas tank, Inspector Volz’ suspicions were further heightened by the fact that the mud appeared to be artificially applied, rather than accumulated through normal wear. Specifically, although the top of the tank was dirty and there was mud behind the bolts that held the tank, the sensing unit was not dirty. Inspector Volz further noted that the gas tank hoses appeared…