United States v. Julio Cortez-Rocha

394 F.3d 1115 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. Filed September 21, 2004. Amended January 20, 2005. Ellis M. Johnston III, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant. Carol C. Lam, United States Attorney, Patrick K. O'Toole, Joseph S. Smith, Jr., Assistant United States Attorneys (on brief), Patrick K. O'Toole, Assistant United States Attorney (at oral argument), United States 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. ORDER 1 The Opinion filed September 21, 2004, and published at 383 F.3d 1093 (9th Cir.2004) is amended as follows: on page 1097, insert the following text at the end of Section III. A.: We find strong support for our analysis and our conclusions in Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1924) and United States v. Ross, 456 U.S.…

ORDER

The Opinion filed September 21, 2004, and published at 383 F.3d 1093 (9th Cir. 2004) is amended as follows: on page 1097, insert the following text at the end of Section III. A.: We find strong support for our analysis and our conclusions in Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1924) and United States v. Ross, 456 U.S. 798 , 102 S.Ct. 2157 , 72 L.Ed.2d 572 (1982). In Carroll , the Supreme Court had before it a disputed war-rantless search conducted by prohibition agents who were looking for contraband whiskey suspected to be in an automobile. The whiskey was finally discovered when the agents tore open the car’s upholstery in the area of the car’s rumble seat. The issue was whether the search violated the Fourth Amendment.

The Court began its constitutional analysis of the tearing open of the upholstery by establishing for automobiles an exception to the Fourth Amendment’s warrant requirement:

Id. at 153-54 , 45 S.Ct. 280 .

Moving to the disputed search itself, the Court held that the warrantless tearing *1117 open of the vehicle’s upholstery was not unreasonable. The court based its holding on the proposition that once it had been…

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 government 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…