United States v. Ricardo A. Bravo

295 F.3d 1002 UNITED STATES of America, Plaintiff-Appellee, v. Ricardo A. BRAVO, Defendant-Appellant. No. 01-50159. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 2, 2001. Submission Withdrawn November 21, 2001. Re-submitted May 13, 2002. Filed July 8, 2002. COPYRIGHT MATERIAL OMITTED Benjamin L. Coleman, Federal Defenders of San Diego, Inc., San Diego, California, argued the cause for the defendant-appellant; Todd W. Burns, Federal Defenders of San Diego, Inc., San Diego, California, was on the briefs. Patrick K. O'Toole, United States Attorney, San Diego, California, argued the cause for the plaintiff-appellee; Bruce R. Castetter, Assistant United States Attorney, and Renee M. Bunker, Assistant United States Attorney, San Diego, California, were on the brief. Appeal from the United States District Court for the Southern District of California; Jeffrey T. Miller, District Judge, Presiding. D.C. No. CR-00-03095-JTM. Before: O'SCANNLAIN, PAEZ, Circuit Judges, and KING, * District Judge. O'SCANNLAIN, Circuit Judge. 1 We must decide whether, under the Fourth Amendment, a border search of a toolbox in the bed of a truck was routine and whether a detention…

concurring in part and dissenting in part:

I agree with the majority that there was reasonable suspicion to destroy the access *1013 plate of the toolbox and to damage its surrounding area in order to search the hidden compartment. I disagree, however, with the majority’s unnecessary discussion regarding whether the search was non-routine. The use of force, when coupled with significant damage to the property searched, can make a search non-routine. Nonetheless, because reasonable suspicion existed, I concur in the majority’s holding in Part II that the district court did not err by denying Bravo’s motion to suppress the evidence found in his truck. I also concur in Part IV.

I cannot agree, however, with the majority’s approval of handcuffing a suspect who poses no danger to border customs agents or others, who presents no risk of flight, and who is not suspected of being involved in a violent crime. Under the circumstances here, I would hold that Bravo’s detention became an arrest when he was handcuffed without justification. In my view, the majority gives the government carte blanche to engage in unnecessarily intrusive measures to detain individuals at the border without any…

We must decide whether, under the Fourth Amendment, a border search of a toolbox in the bed of a truck was routine and whether a detention became an arrest when a customs inspector briefly handcuffed the truck’s driver.

I

On September 23, 2000, Ricardo A. Bravo entered the United States from Mexico at the Calexico, California, West Port of Entry as the sole occupant of a 1981 Chevrolet Silverado. In response to routine questions from Customs Inspector Albert Tijerina during a primary inspection, Bravo stated that he was an American citizen traveling to the market and post office, that he had nothing to declare, and that he had borrowed the truck from a friend, which explained why he was not its registered owner. Inspector Tijerina thought Bravo was being “overly-friendly” in answering his questions. He asked an Immigration Service Canine Enforcement Officer, who was conducting a pre-primary roving operation, to “run” his detector dog around the truck. The dog “alerted” to the toolbox in the bed of the truck.

Senior Inspector Carlos Flores, present during the dog’s alert, inspected the toolbox by banging its side and underside with his hands. He heard a solid sound, which…