United States v. Julio Cortez-Rocha

383 F.3d 1093 UNITED STATES of America, Plaintiff-Appellee, v. Julio CORTEZ-ROCHA, Defendant-Appellant. No. 03-50491. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 8, 2004. Decided September 21, 2004. Ellis M. Johnston III, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant. Carol C. Lam, United State Attorney, Patrick K. O'Toole (at oral argument and on brief), Joseph S. Smith, Jr., (on brief), Assistant United States Attorneys, U.S. Attorney's Office, San Diego, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Southern District of California; Thomas J. Whelan, District Judge, Presiding. D.C. No. CR-03-00576-TJW. Before: TROTT, RYMER, and THOMAS, Circuit Judges. TROTT, Circuit Judge: 1 Julio Cortez-Rocha appeals from his conviction following a conditional guilty plea for importation of marijuana in violation of 21 U.S.C. §§ 952 and 960. He asserts that the district court should have suppressed the marijuana discovered during a border search of his vehicle because the invasive search of his vehicle's spare tire was obtained pursuant to an invalid border search. We hold that the…

Julio Cortez-Rocha appeals from his conviction following a conditional guilty plea for importation of marijuana in violation of 21 U.S.C. §§ 952 and 960. He asserts that the district court should have suppressed the marijuana discovered during a border search of his vehicle because the invasive search of his vehicle’s spare tire was obtained pursuant to an invalid border search. We hold that the border search of Cortez-Rocha’s tire did not require reasonable suspicion, and we affirm.

I. Background

Cortez entered the United States at the Calexico, California Port of Entry on February 16, 2003 as the driver and sole occupant of a 1979 Chevrolet pickup truck. During a preprimary inspection, a narcotics detector dog alerted to the rear area of Cortez’s truck. The vehicle was then referred to the secondary inspection area, where a customs inspector placed a han-dheld density meter against the side of the vehicle’s spare tire. The meter registered a high reading indicating the possible presence of contraband. Customs inspectors then removed the spare tire from underneath the vehicle and proceeded to cut open and inspect the inside of the tire. Therein, the inspectors discovered ten…

dissenting:

I respectfully dissent.

In United States v. Flores-Montano, the Supreme Court recently left open the question of whether and when destructive searches of property at the border might violate the Fourth Amendment. 541 U.S. 149 , 124 S.Ct. 1582, 1586-87 , 158 L.Ed.2d 311 (2004); United States v. Camacho, 368 F.3d 1182, 1185 (9th Cir.2004); United States v. Bennett, 363 F.3d 947, 951 (9th Cir.2004). In doing so, the Court took great pains to distinguish the circumstances presented by Flores-Montano with those involving a destructive search, and to emphasize that the search in that case was non-destructive. 1 124 S.Ct. at 1586 .

The majority answers this open question by holding that the government may destroy all personal property that does not affect vehicular operation at the border without any suspicion of criminal activity. I do not read Flores-Montano that broadly. The clearer implication from Flores-Montano is that there are Fourth Amendment limits to the ability of the govern-rnent to destroy property at the border. This is consistent with the Supreme Court’s view in other contexts that “ ‘[excessive or unnecessary destruction of property’ ” can render police…