United States v. Dora Chaudhry

424 F.3d 1051 UNITED STATES of America, Plaintiff-Appellee, v. Dora CHAUDHRY, Defendant-Appellant. No. 04-50421. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 10, 2005. Filed September 14, 2005. Chase Scolnick, Assistant Federal Public Defender, San Diego CA, for the appellant. Mark R. Rehe, Assistant United States Attorney, San Diego, CA, with Patrick K. O'Toole, Assistant United States Attorney, also on the brief for the appellee. Appeal from the United States District Court for the Southern District of California; John A. Houston, District Judge, Presiding. D.C. No. CR-04-01388-JAH. Before B. FLETCHER, RYMER, and FISHER, Circuit Judges. Opinion by Judge B. Fletcher; Concurrence by Judge B. Fletcher; Concurrence by Judge Fisher BETTY B. FLETCHER, Circuit Judge. 1 Appellant Dora Chaudhry appeals from her conditional-plea conviction for importation of marijuana in violation of 18 U.S.C. §§ 952 and 960. Chaudhry contends that border agents conducted an unreasonable search of her vehicle in violation of the Fourth Amendment when the agents drilled a 5/16-inch hole in the bed of her pickup truck, revealing a blue plastic material inside the bed of…

Opinion by Judge B. Fletcher; Concurrence by Judge B. Fletcher; Concurrence by Judge Fisher

Appellant Dora Chaudhry appeals from her conditional-plea conviction for importation of marijuana in violation of 18 U.S.C. §§ 952 and 960. Chaudhry contends that border agents conducted an unreasonable search of her vehicle in violation of the Fourth Amendment when the agents drilled a 5/16-inch hole in the bed of her pickup truck, revealing a blue plastic material inside the bed of her truck. That discovery led agents to unveil several packages of marijuana located under a false bed of the pickup. Chaudhry moved to suppress the evidence, but that motion was denied. Because we conclude that a single hole with a diameter of 5/16 of an inch does not constitute a property search that is “so destructive as to require a different result,” United States v. Flores-Montano, 541 U.S. 149, 156 , 124 S.Ct. 1582 , 158 L.Ed.2d 311 (2004), we affirm.

*1052 I.

On May 7, 2004, Chaudhry drove her Ford F-150 pickup truck to the San Ysidro Port of Entry in Southern California. In pre-primary inspection, a narcotics detector dog alerted on Chaudhry’s vehicle by biting and scratching on the undercarriage of…

specially concurring:

I write separately to express my distaste for the government’s game-playing in this case and in two others we heard on the same calendar: United States v. Flores-Montano, 2004 WL 3203273 ; United States v. Hernandez, 2004 WL 3140549 . In each case there was reasonable and articulable suspicion of drug smuggling. But the government wanted confirmation that no suspicion is required for extensive, intrusive searches at the border. This would have an ancillary benefit for the government — it would not have to prove the reliability of its drug sniffing dogs.

As a practical matter, border agents are too busy to do extensive searches (removing gas tanks and door panels, boring holes in truck beds) unless they have suspicion. Apparently no suspicionless search case has come along to allow the issue-— how destructive and extensive a suspicion-less search may be — to be presented in its pure form. So the government seized upon cases where there have been extensive searches based on clearly reasonable, articulable suspicion. In these cases, the government refuses to present evidence to support the suspicion. It prefers to test the limits of its right to search beyond…

concurring:

Like Judge Fletcher, I am troubled by the government’s evident decision in this and other cases, including United States v. Flores-Montano, 2004 WL 3203273 , and United States v. Hernandez, 2004 WL 3140549 , to eschew reliance on dog alerts or other evidence supporting reasonable suspicion. That I join in the resolution of these three cases on their respective merits, given the limited nature and scope of the initial searches, does not mean I either endorse or feel bound by the government’s litigation strategy.