United States v. Cortez-Rocha ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 03-50491
Plaintiff-Appellee, D.C. No.
v.
 CR-03-00576-TJW
JULIO CORTEZ-ROCHA, ORDER AND
Defendant-Appellant. AMENDED
 OPINION
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Argued and Submitted
June 8, 2004—Pasadena, California
Filed September 21, 2004
Amended January 20, 2005
Before: Stephen S. Trott, Pamela Ann Rymer, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Trott;
Dissent by Judge Thomas
847
UNITED STATES v. CORTEZ-ROCHA 849
COUNSEL
Ellis M. Johnston III, Federal Defenders of San Diego, Inc.,
San Diego, California, 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 agrument), United States Attorney’s Office, San
Diego, California, for the plaintiff-appellee.
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.:
850 UNITED STATES v. CORTEZ-ROCHA
We find strong support for our analysis and our conclusions
in Carroll v. United States, 267 U.S. 132 (1924) and United
States v. Ross, 456 U.S. 798 (1982). In Carroll, the Supreme
Court had before it a disputed warrantless search conducted
by prohibition agents who were looking for contraband whis-
key suspected to be in an automobile. The whiskey was
finally discovered when the agents tore open the car’s uphol-
stery 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:
We have made a somewhat extended reference to
these statutes to show that the guaranty of freedom
from unreasonable searches and seizures by the 4th
Amendment has been construed, practically since the
beginning of the government, as recognizing a nec-
essary difference between a search of a store, dwell-
ing house, or other structure in respect of which a
proper official warrant readily may be obtained, and
a search of a ship, motor boat, wagon, or automobile
for contraband goods, where it is not practicable to
secure a warrant because the vehicle can be quickly
moved out of the locality or jurisdiction in which the
warrant must be sought.
Having thus established that contraband goods
concealed and illegally transported in an automobile
or other vehicle may be searched for without a war-
rant, we come now to consider under what circum-
stances such search may be made.
Id. at 153-54.
Moving to the disputed search itself, the Court held that the
warrantless tearing open of the vehicle’s upholstery was not
UNITED STATES v. CORTEZ-ROCHA 851
unreasonable. The court based its holding on the proposition
that once it had been established that the car could be
searched, the agents were entitled to search anywhere a war-
rant could have authorized the agents to look. “Since such a
warrant could have authorized the agents to open the rear por-
tion of the roadster and to rip the upholstery in their search for
concealed whiskey, the search was constitutionally permissi-
ble.” Ross, 456 U.S. at 818.
Granted, the agents in Carroll had probable cause to search
the vehicle for whiskey, but Carroll acknowledged the
greater authority of the government, and the lesser privacy
right for individuals, with respect to “[t]ravelers . . . crossing
an international boundary because of national self protection
. . . ,” Id. at 408, (quoting Carroll, 267 U.S. at 153-54), a
theme reaffirmed in Flores-Montano.
Ross held also that:
[W]hen a legitimate search is underway, and when
its purpose and its limits have been precisely
defined, nice distinctions between closets, drawers,
and containers in the case of a home, or between
glove compartments, upholstered seats, trunks, and
wrapped packages, in the case of an automobile,
must give way to the interest in the prompt and effi-
cient completion of the task at hand.
[Footnote 28] The practical considerations that jus-
tify a warrantless search of an automobile and its
contents have been completed. Arguably, the entire
vehicle itself (including its upholstery could be
searched without a warrant . . . .
Id. at 821, 821 n.28.
We deduce from this authority with respect to searches of
automobiles that the answers to two questions become dispo-
852 UNITED STATES v. CORTEZ-ROCHA
sitive of the constitutionality of this kind of search. First, were
the law enforcement officers involved justified in a search of
the car; and second, was the “scope of the search . . . no
greater than a magistrate could have authorized . . . .” Ross,
456 U.S. at 818.
Here, the answers are unequivocal. To the first question,
yes, based on Flores-Montano and Carroll. The vehicle and
its occupants were attempting to cross our border. The border
search justification simply takes the place of the need in an
ordinary case to show probable cause.
To the second, yes. A magistrate would be authorized
under Carroll and Ross to include within the “scope” of the
search warrant the cutting open of a spare tire in search of
contraband.
With this amendment, Cortez-Rocha’s Petition for Rehear-
ing and Petition for Rehearing En Banc remain undecided and
pending. In this respect, both parties may file with the Clerk
of this Court simultaneous supplemental letter briefs not to
exceed two (2) pages in length addressing the opinion as
amended. The letter briefs shall be filed within fourteen (14)
days of the date of this order. Should a party decide to forego
supplemental briefing, the party shall promptly so notify the
Clerk of the Court.
So ORDERED.
OPINION
TROTT, Circuit Judge:
Julio Cortez-Rocha appeals from his conviction following
a conditional guilty plea for importation of marijuana in viola-
UNITED STATES v. CORTEZ-ROCHA 853
tion 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 prepri-
mary 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 handheld 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 pro-
ceeded to cut open and inspect the inside of the tire. Therein,
the inspectors discovered ten brick-shaped packages, which
contained 42.22 kilograms of marijuana. Cortez was arrested
as a result of this discovery.
On February 26, 2003, a two-count indictment was filed in
the Southern District of California, charging Cortez with
importation of marijuana and possession of marijuana with
intent to distribute, in violation of 21 U.S.C. §§ 841, 952, and
960. On March 24, 2003, Cortez filed a motion to suppress
the marijuana evidence, asserting that it was obtained in viola-
tion of the Fourth Amendment. Specifically, Cortez asserted
that the cutting open of his spare tire was a non-routine search
that must be justified by particularized suspicion. The district
court denied Cortez’s motion, concluding that the cutting
open of the spare tire was a routine border search that did not
require reasonable suspicion. Thereafter, Cortez entered a
conditional plea of guilty to the importation charge, preserv-
854 UNITED STATES v. CORTEZ-ROCHA
ing his right to appeal the denial of the suppression motion.
On September 22, 2003, Cortez was sentenced to time-served
plus a two-year period of supervised release.
II. Jurisdiction and Standard of Review
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo the district court’s denial of a motion to sup-
press and the district court’s determination of whether the
government has conducted a legal border search. United
States v. Camacho, 368 F.3d 1182, 1183 (9th Cir. 2004).
III. Discussion
In this case, we must determine whether the border search
of Cortez’s vehicle, which included a border investigator cut-
ting open Cortez’s spare tire, required reasonable suspicion.1
Cortez contends that cutting open a spare tire without reason-
able suspicion must be deemed constitutionally unreasonable
because of “ ‘the particularly offensive manner it is carried
out.’ ” United States v. Flores-Montano, 1245 S.Ct. 1582,
*1586. n.2 (2004) (quoting United States v. Ramsey, 431 U.S.
606, 618, n.13 (1977).
A.
[1] “Border searches, . . . from before the adoption of the
Fourth Amendment, have been considered to be ‘reasonable’
1
The existence of reasonable suspicion was not placed at issue in the
proceedings below. Rather than disclosing law enforcement materials
regarding the drug detector dog and the density buster, which, under
United States v. Cedano-Arellano, 332 F.3d 568, 573-74 (9th Cir. 2003),
is mandatory when the government relies upon a reasonable suspicion
argument, the government instead argued that reasonable suspicion was
not needed for the border search at issue. Because we agree with the gov-
ernment, as did the district court, that reasonable suspicion was not
required to perform the search in this case, we do not address the question
of whether reasonable suspicion did in fact exist.
UNITED STATES v. CORTEZ-ROCHA 855
by the single fact that the person or item in question had
entered into our country from outside.” United States v. Ram-
sey, 431 U.S. at 619. In order to protect the country from the
entry of drugs, weapons, explosives, and unauthorized per-
sons and things, the government must be empowered to con-
duct searches of containers crossing an international border.
See id. at 618-19. “The border-search exception is grounded
in the recognized right of the sovereign to control, subject to
substantive limitations imposed by the Constitution, who and
what may enter the country.” Id. at 620.
[2] Recently, the Supreme Court addressed the scope of the
government’s authority to perform vehicular border searches
without reasonable suspicion, holding that it “includes the
authority to remove, disassemble, and reassemble a vehicle’s
fuel tank.” Flores-Montano, 124 S.Ct. at *1587. The Court
indicated that “[e]specially destructive searches of property,
however, may require reasonable suspicion.” United States v.
Bennett, 363 F.3d 947, 951 (9th Cir. 2004) (citing Flores-
Montano, 124 S.Ct. at *1587) (emphasis added). The Court
did not, however, elucidate which searches, if any, are “so
destructive” as to require reasonable suspicion. See Flores-
Montano, 124 S.Ct. at *1587.
Cortez argues that this case is similar to out-of-circuit
cases, which hold that the explorative drilling into the body
of a vehicle at the border requires reasonable suspicion. See
United States v. Rivas, 157 F.3d 364 (5th Cir. 1998); United
States v. Robles, 45 F.3d 1 (1st Cir. 1995); United States v.
Carreon, 872 F.2d 1436 (10th Cir. 1989). “Flores-Montano
explicitly left open the question of whether explorative drill-
ing searches of vehicles must be supported by reasonable sus-
picion.” Bennett, 363 F.3d at 951 n.3 (citing Flores-Montano,
124 S.Ct. at 1587 n.2 (“We have no reason at this time to pass
on the reasonableness of drilling, but simply note . . . that this
case involves the procedure of removal, disassembly, and
reassembly of a fuel tank, rather than potentially destructive
drilling.”)).
856 UNITED STATES v. CORTEZ-ROCHA
We are not persuaded that the reasoning contained in the
explorative-drilling cases mandates a reasonable suspicion
requirement in this case. First, the application of the routine/
non-routine balancing test in these cases was specifically
refuted in Flores-Montano. Flores-Montano, 124 S.Ct. at
*1585 (expressing disapproval at use of “routine” as the basis
of balancing test in the border search context); see also Rivas,
157 F.3d at 367 (concluding that “drilling into the body of the
vehicle at a border checkpoint” is a “nonroutine search”);
Robles, 45 F.3d at 5 (“We have little difficulty concluding
that drilling a hole into the cylinder was not a routine
search.”); see also Carreon, 872 F.2d at 1442 (not addressing
the question of whether the search was routine because rea-
sonable suspicion justified use of electric drill search by bor-
der inspectors).
[3] Moreover, although Flores-Montano indicates that the
government’s inherent authority to conduct border searches
may be limited to searches that are not unreasonably destruc-
tive, the search of a vehicle’s spare tire, which neither dam-
ages the vehicle nor decreases the safety or operation of the
vehicle, is not so destructive as to be unreasonable. See
United States v. Vargas-Castillo, 329 F.3d 715, 722 (9th Cir.
2003) (search of spare tire did not “reach ‘the degree of intru-
siveness present in a strip search or body cavity search’ ”
(quoting United States v. Ramos-Saenz, 36 F.3d 59, 61 (9th
Cir. 1994)).
[4] Although cutting a spare tire is certainly damaging to
that tire, the important factor is whether the procedure results
in significant damage to, or destruction of, the vehicle. See
Flores-Montano, 124 S.Ct. at *1587 (gas tank search was not
a significant deprivation of property because the procedure
“can be reversed without damaging the safety or operation of
the vehicle”) (emphasis added). In this case, there was no sig-
nificant damage to Cortez’s vehicle. There is no doubt that the
search and disabling of a vehicle’s spare tire does not in any
way hinder the operation of the vehicle or impede the travel-
UNITED STATES v. CORTEZ-ROCHA 857
er’s immediate ability to continue his travels using the vehi-
cle. See Flores-Montano, 124 S.Ct. at *1586-87 (explaining
that border searches involving reassembled gas tanks do not
hinder vehicles’ ability to continue entry into the United
States). Nor does the disabling of a spare tire undermine the
immediate safety of the vehicle or threaten the security of the
vehicle’s driver or passengers. Indeed, because cutting the
spare tire cannot affect or undermine the vehicle’s operation
or safety, the procedure is even less damaging to the vehicle
than is the removal and reassembly of a vehicle’s gas tank, a
procedure that, while potentially affecting the vehicle’s opera-
tion, nonetheless does not require reasonable suspicion. See
id. at *1587. Finally, any motorist whose vehicle has in fact
been damaged during such a search is free to pursue recovery
in the form of civil damages. See id. (citing 31 U.S.C. § 3723;
19 U.S.C. § 1630).
In this context, a vehicle’s spare tire, which is not an opera-
tional component of the vehicle, is analogous to a closed suit-
case or other container often found inside of a vehicle. The
government’s longstanding authority to search containers and
concealed areas of vehicles crossing the border reflects the
practical reality that “[c]ontraband goods rarely are strewn
across the trunk or floor of a car; since by their very nature
such goods must be withheld from public view, they rarely
can be placed in an automobile unless they are enclosed
within some form of container.” United States v. Ross, 456
U.S. 798, 820 (1982); see also Henderson v. United States,
390 F.2d 805, 808 (9th Cir. 1967) (“[E]very person crossing
our border may be required to disclose the contents of his
baggage, and of his vehicle, if he has one.”). In order for an
inspector to search the inside of the tire, cutting the tire may
be necessary. Were we to require reasonable suspicion to con-
duct similar searches of common vehicular compartments, we
would seriously impair the ability of the government to deter,
detect, and prevent the unlawful smuggling across the coun-
try’s borders. Any locked container would be protected by the
rule Cortez seeks. A reasonable suspicion requirement in this
858 UNITED STATES v. CORTEZ-ROCHA
context would remove the significant deterrent effect of suspi-
cionless searches and encourage the use of spare tires and
other locked containers as a means of smuggling.
We find strong support for our analysis and our conclusions
in Carroll v. United States, 267 U.S. 132 (1924) and United
States v. Ross, 456 U.S. 798 (1982). In Carroll, the Supreme
Court had before it a disputed warrantless search conducted
by prohibition agents who were looking for contraband whis-
key suspected to be in an automobile. The whiskey was
finally discovered when the agents tore open the car’s uphol-
stery 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:
We have made a somewhat extended reference to
these statutes to show that the guaranty of freedom
from unreasonable searches and seizures by the 4th
Amendment has been construed, practically since the
beginning of the government, as recognizing a nec-
essary difference between a search of a store, dwell-
ing house, or other structure in respect of which a
proper official warrant readily may be obtained, and
a search of a ship, motor boat, wagon, or automobile
for contraband goods, where it is not practicable to
secure a warrant because the vehicle can be quickly
moved out of the locality or jurisdiction in which the
warrant must be sought.
Having thus established that contraband goods
concealed and illegally transported in an automobile
or other vehicle may be searched for without a war-
rant, we come now to consider under what circum-
stances such search may be made.
UNITED STATES v. CORTEZ-ROCHA 859
Id. at 153-54.
Moving to the disputed search itself, the Court held that the
warrantless tearing open of the vehicle’s upholstery was not
unreasonable. The court based its holding on the proposition
that once it had been established that the car could be
searched, the agents were entitled to search anywhere a war-
rant could have authorized the agents to look. “Since such a
warrant could have authorized the agents to open the rear por-
tion of the roadster and to rip the upholstery in their search for
concealed whiskey, the search was constitutionally permissi-
ble.” Ross, 456 U.S. at 818.
Granted, the agents in Carroll had probable cause to search
the vehicle for whiskey, but Carroll acknowledged the
greater authority of the government, and the lesser privacy
right for individuals, with respect to “[t]ravelers . . . crossing
an international boundary because of national self protection
. . . ,” Id. at 408, (quoting Carroll, 267 U.S. at 153-54), a
theme reaffirmed in Flores-Montano.
Ross held also that:
[W]hen a legitimate search is underway, and when
its purpose and its limits have been precisely
defined, nice distinctions between closets, drawers,
and containers in the case of a home, or between
glove compartments, upholstered seats, trunks, and
wrapped packages, in the case of an automobile,
must give way to the interest in the prompt and effi-
cient completion of the task at hand.
[Footnote 28] The practical considerations that jus-
tify a warrantless search of an automobile and its
contents have been completed. Arguably, the entire
vehicle itself (including its upholstery could be
searched without a warrant . . . .
860 UNITED STATES v. CORTEZ-ROCHA
Id. at 821, 821 n.28.
We deduce from this authority with respect to searches of
automobiles that the answers to two questions become dispo-
sitive of the constitutionality of this kind of search. First, were
the law enforcement officers involved justified in a search of
the car; and second, was the “scope of the search . . . no
greater than a magistrate could have authorized . . . .” Ross,
456 U.S. at 818.
Here, the answers are unequivocal. To the first question,
yes, based on Flores-Montano and Carroll. The vehicle and
its occupants were attempting to cross our border. The border
search justification simply takes the place of the need in an
ordinary case to show probable cause.
To the second, yes. A magistrate would be authorized
under Carroll and Ross to include within the “scope” of the
search warrant the cutting open of a spare tire in search of
contraband.
B.
Seizing upon language from Flores-Montano, Cortez —
and our colleague in dissent — would have us formulate a
new balancing test for determining when a border procedure
is so destructive or so damaging as to invade the rights pro-
tected by the Fourth Amendment. We decline to do so.
Indeed, it was this court’s application in United States v.
Molina-Tarazon, 279 F.3d 709, 713 (9th Cir. 2002), of a bal-
ancing test to determine which border searches are non-
routine that the Supreme Court specifically refuted in Flores-
Montano. See Flores-Montano, 124 S.Ct. at *1585 (explain-
ing that this circuit had misapplied United States v. Montoya
de Hernandez, 473 U.S. 531 (1985), and had improperly
seized upon “routine,” as a descriptive term in discussing bor-
der searches to fashion a new balancing test and to extend it
to searches of vehicles). Instead, we heed the Supreme
UNITED STATES v. CORTEZ-ROCHA 861
Court’s reiterated admonition that “the reasons that might
support a requirement of some level of suspicion in the case
of highly intrusive searches of the person—dignity and pri-
vacy interests of the person being searched—simply do not
carry over to vehicles. Complex balancing tests to determine
what is a ‘routine’ search of a vehicle, as opposed to a more
‘intrusive’ search of a person, have no place in border
searches of vehicles.” Id. at *1585.
Judge Thomas raises the specter of officious border inspec-
tors wielding knives in one hand and this opinion in the other
as they wantonly and routinely slash open every spare tire in
“every vehicle that crosses the border.” He asserts that we
have given them “carte blanche” to do so. We respectfully
reject this characterization of the practical consequences of
our opinion.
First, this scenario discredits — unintentionally and without
an intent to criticize, we are sure — the men and women who
protect our borders, as well as the agencies for which they
work. As do most government employees, all sworn to uphold
the Constitution, they exercise informed judgment as they
work at their difficult tasks, and they do not waste time on
dead-end adventures. It is a mistake simply to see them as
cyborgs from the “ready, fire, aim” school of job perfor-
mance. We believe that these employees and their supervisors
and their agencies can be counted on to be intelligent and
respectful — as the facts and circumstances of this case dem-
onstrate — as they carry out tasks assigned to them by Con-
gress. On this point, we take our lead from Justice Breyer,
who said in his concurring opinion in Flores-Montano, “Cus-
toms keeps track of the border searches its agents conduct,
including the reasons for the searches. This administrative
process should help minimize concerns that gas tank searches
might be undertaken in an abusive manner.” Flores-Montano,
124 S.Ct. at 1587. (Breyer, J., concurring).
It is also a mistake to assume sub silentio that we — the
judiciary — manage the day to day affairs and control the pol-
862 UNITED STATES v. CORTEZ-ROCHA
icies of the Executive Branch of government. We do not give
carte blanche to anyone. Our job is simply, but importantly,
to throw the flag in court when we see relevant constitutional
fouls. Here, the Supreme Court has made it clear that the bor-
der is different, and that the usual constitutional restrictions
on searches and seizures — including the reach of the exclu-
sionary rule — are different as well.
C.
Cortez asserts also that the procedure performed here was
unreasonable because the government had less restrictive
means available at the border to conduct searches of vehicles
and their tires for contraband. Specifically, Cortez argues that
because the government had available narcotic detection dogs,
density measuring devices, and x-ray devices capable of scan-
ning his vehicle, such procedures must be utilized by border
control inspectors prior to the procedure conducted in this
case. We do not agree. As recently stressed in Flores-
Montano, “ ‘searches made at the border, pursuant to the
longstanding right of the sovereign to protect itself by stop-
ping and examining persons and property crossing into this
country, are reasonable simply by virtue of the fact that they
occur at the border.’ ” Id. (quoting United States v. Ramsey,
431 U.S. at 616). We believe that the government’s inherent
authority to monitor and secure the country’s international
borders would be seriously undermined by a court-fashioned
least restrictive means test for border control vehicular
searches, and we refuse to tie the hands of border control
inspectors in such a fashion.
D.
“It is axiomatic that the United States, as sovereign, has the
inherent authority to protect, and a paramount interest in pro-
tecting, its territorial integrity.” Ramsey, 431 U.S. at 616; see
also Montoya de Hernandez, 473 U.S. at 544 (“At the border,
customs officials have more than merely an investigative law
UNITED STATES v. CORTEZ-ROCHA 863
enforcement role. They are also charged, along with immigra-
tion officials, with protecting this Nation from entrants who
may bring anything harmful into this country, whether that be
communicable diseases, narcotics, or explosives.”). As the
Court reiterated in Flores-Montano, “The government’s inter-
est in preventing the entry of unwanted persons and effects is
at its zenith at the international border.” Id. at 1585. Nowhere
is this compelling interest better explained and documented
than in the 9/11 Commission 2004 Report of the National
Commission on Terrorist Attacks upon the United States. As
for the importance of our policing borders in this context,
which at this juncture in our history is surely a pressing
national “special need,”2 we draw from that report:
Terrorist Travel
More than 500 million people annually cross U.S.
borders at legal entry points, about 330 million of
them noncitizens. Another 500,000 or more enter
illegally without inspection across America’s thou-
sands of miles of land borders or remain in the coun-
try past the expiration of their permitted stay. The
challenge for national security in an age of terrorism
is to prevent the very few people who may pose
overwhelming risks from entering or remaining in
the United States undetected.
In the decade before September 11, 2001, border
security—encompassing travel, entry, and
immigration—was not seen as a national security
matter. Public figures voiced concern about the “war
on drugs,” the right level and kind of immigration,
problems along the southwest border, migration cri-
ses originating in the Caribbean and elsewhere, or
2
See Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 677
(1989); Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 633-34
(1989).
864 UNITED STATES v. CORTEZ-ROCHA
the growing criminal traffic in humans. The immi-
gration system as a whole was widely viewed as
increasingly dysfunctional and badly in need of
reform. In national security circles, however, only
smuggling of weapons of mass destruction carried
weight, not the entry of terrorists who might use
such weapons or the presence of associated foreign-
born terrorists.
For terrorists, travel documents are as important as
weapons. Terrorists must travel clandestinely to
meet, train, plan, case targets, and gain access to
attack. To them, international travel presents great
danger, because they must surface to pass through
regulated channels, present themselves to border
security officials, or attempt to circumvent inspec-
tion points.
In their travels, terrorists use evasive methods,
such as altered and counterfeit passports and visas,
specific travel methods and routes, liaisons with cor-
rupt government officials, human smuggling net-
works, supportive travel agencies, and immigration
and identity fraud. These can sometimes be detected.
Before 9/11, no agency of the U.S. government
systematically analyzed terrorists’ travel strategies.
Had they done so, they could have discovered the
ways in which the terrorist predecessors to al Qaeda
had been systematically but detectably exploiting
weaknesses in our border security since the early
1990s.
Id., at 383-384.
Ressam’s Arrest
Ahmed Ressam, 23, had illegally immigrated to
Canada in 1994. Using a falsified passport and a
UNITED STATES v. CORTEZ-ROCHA 865
bogus story about persecution in Algeria, Ressam
entered Montreal and claimed political asylum. For
the next few years he supported himself with petty
crime. Recruited by an alumnus of Abu Zubaydah’s
Khaldan camp, Ressam trained in Afghanistan in
1998, learning, among other things, how to place
cyanide near the air intake of a building to achieve
maximum lethality of minimum personal risk. Hav-
ing joined other Algerians in planning a possible
attack on the U.S. airport or consulate, Ressam left
Afghanistan in early 1999 carrying precursor chemi-
cals for explosives disguised in toiletry bottles, a
notebook containing bomb assembly instructions,
and $12,000. Back in Canada, he went about procur-
ing weapons, chemicals, and false papers.
In early summer 1999, having learned that not all
of his colleagues could get the travel documents to
enter Canada, Ressam decided to carry out the plan
alone. By the end of the summer he had chosen three
Los Angeles-area airports as potential targets, ulti-
mately fixing on Los Angeles International (LAX) as
the largest and easiest to operate in surreptitiously.
He bought or stole chemicals and equipment for his
bomb, obtaining advice from three Algerian friends,
all of whom were wanted by authorities in France for
their roles in past terrorist attacks there. Ressam also
acquired new confederates. He promised to help a
New York-based partner, Abdelghani Meskini, get
training in Afghanistan if Meskini would help him
maneuver in the United States.
In December 1999, Ressam began his final prepa-
rations. He called an Afghanistan-based facilitator to
inquire into whether Bin Ladin wanted to take credit
for the attack, but he did not get a reply. He spend
a week in Vancouver preparing the explosive com-
ponents with a close friend. The chemicals were so
866 UNITED STATES v. CORTEZ-ROCHA
caustic that the men kept their windows open,
despite the freezing temperatures outside, and
sucked on cough drops to soothe their irritated
throats. While in Vancouver, Ressam also rented a
Chrysler sedan for his travel into the United States,
and packed the explosives in the trunk’s spare tire
well.
On December 14, 1999, Ressam drove his rental
car onto the ferry from Victoria, Canada, to Port
Angeles, Washington. Ressam planned to drive to
Seattle and meet Meskini, with whom he would
travel to Los Angeles and case LAX. They planned
to detonate the bomb on or around January 1, 2000.
At the Immigration and Naturalization Service (INS)
preinspection station in Victoria, Ressam presented
officials with his genuine but fraudulently obtained
Canadian passport, from which he had torn the
Afghanistan entry and exit stamps. The INS agent on
duty ran the passport through a variety of databases
but, since it was not in Ressam’s name, he did not
pick up the pending Canadian arrest warrants. After
a cursory examination of Ressam’s car, the INS
agents allowed Ressam to board the ferry.
Late in the afternoon of December 14, Ressam
arrived in Port Angeles. He waited for all the other
cars to depart the ferry, assuming (incorrectly) that
the last car off would draw less scrutiny. Customs
officers assigned to the port, noticing Ressam’s ner-
vousness, referred him to secondary inspection.
When asked for additional identification, Ressam
handed the Customs agent a Price Costco member-
ship card in the same false name as his passport. As
the agent began an initial pat-down, Ressam pan-
icked and tied to run away.
Inspectors examining Ressam’s rental car found
the explosives concealed in the spare tire well, but at
UNITED STATES v. CORTEZ-ROCHA 867
first they assumed the white powder and viscous liq-
uid were drug-related—until an inspector pried apart
and identified one of the four timing devices con-
cealed within black boxes. Ressam was placed under
arrest. Investigators guessed his target was Seattle.
They did not learn about the Los Angeles airport
planning until they reexamined evidence seized in
Montreal in 2000; they obtained further details when
Ressam began cooperating in May 2001.
Id., at 176-179.
IV. Conclusion
Our purpose is not to give carte blanche to Homeland
Security agents to behave recklessly, but to assess their
behavior in this case against the Supreme Court’s recent guid-
ance. In so doing, we simply disagree that cutting open a
spare tire is what the Court had in mind when it cautioned
against border searches that are “ ‘unreasonable’ because of
the particularly offensive manner [in which they are] carried
out.” Flores-Montano, 124 S.Ct. at 1587 (quoting United
States v. Ramsey, 431 U.S. 606, 618, n.13 (1977). Moreover,
by giving special protection to the contents of a spare tire, the
test proposed by our colleague might simply result in making
spare tires the smuggler’s — and future Ahmed Ressams —
container of choice.
[5] Any court-imposed obligation requiring border agents
to use other means of searching prior to conducting the search
at issue in this case would functionally create a particularized
suspicion standard, which we have already concluded is not
applicable in these circumstances. Because the search of the
spare tire, although damaging to that tire, does not constitute
the form of vehicle destruction that would warrant an applica-
tion of the reasonable suspicion standard, we deduce that bor-
der control agents were not required to utilize other
868 UNITED STATES v. CORTEZ-ROCHA
procedures prior to cutting and searching the inside of the
spare tire.
[6] In sum, we conclude that the search of Cortez’s spare
tire was not a “particularly offensive” border search requiring
reasonable suspicion. See Ramsey, 431 U.S. at 618 n. 13. We
conclude here, as did the Supreme Court in Flores-Montano
that “[w]hile it may be true that some searches of property are
so destructive as to require a different result, this was not one
of them.” Flores-Montano, 124 S.Ct. at *1587. Accordingly,
we leave for another day the question of “ ‘whether, and
under what circumstances, a border search might be deemed
unreasonable because of the particularly offensive manner it
is carried out.’ ” Flores-Montano, S.Ct. at *1587 (quoting
Ramsey, 431 U.S. at 618, n. 13). Because the Government’s
authority to conduct suspicionless inspections at the border
includes the search conducted in this case, the district court
did not err in denying Cortez’s motion to suppress. We affirm
Cortez’s conviction and sentence.
AFFIRMED.
THOMAS, Circuit Judge, dissenting:
I respectfully dissent.
In United States v. Flores-Montano, the Supreme Court
recently left open the question of whether and when destruc-
tive searches of property at the border might violate the
Fourth Amendment. 124 S.Ct. 1582, 1586-87 (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 cir-
cumstances presented by Flores-Montano with those involv-
UNITED STATES v. CORTEZ-ROCHA 869
ing 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 gov-
ernment to destroy property at the border. This is consistent
with the Supreme Court’s view in other contexts that
“ ‘[e]xcessive or unnecessary destruction of property’ ” can
render police conduct unreasonable under the Fourth Amend-
ment.” United States v. Tueller, 349 F.3d 1239, 1245 (2003)
(quoting United States v. Ramirez, 523 U.S. 65, 71 (1998)).
It is also consistent with the Supreme Court’s oft-repeated
statement that the “touchstone of the Fourth Amendment is
reasonableness,” which “is measured in objective terms by
examining the totality of the circumstances.” Ohio v. Robi-
nette, 519 U.S. 33, 39 (1996).
Thus, rather than adopt a bright line rule and give the gov-
ernment carte blanche to search and destroy all personal
property at the border that does not affect vehicular operation,
I would employ the usual, common sense, totality of the cir-
cumstances balancing test to determine when a search is so
destructive as to require reasonable suspicion. In the present
context, the major factors included in this analysis would be
the degree of destruction, the ease with which the damage can
be repaired, and the convenience, cost, and efficiency of non-
destructive or less-destructive searching methods that were
available at the search site.
1
The Court noted that the defendant “does not, and cannot, truly con-
tend that the procedure of removal, disassembly, and reassembly of the
fuel tank in this case or any other has resulted in serious damage to, or
destruction of, the property.” 124 S. Ct. at 1586.
870 UNITED STATES v. CORTEZ-ROCHA
In this case, such factors clearly demonstrate that reason-
able suspicion was required to cut open Cortez-Rocha’s spare
tire. Reasonable, non-destructive search methods were readily
accessible. The government admits that both a drug dog and
a density buster were available at the site. There was nothing
preventing the inspectors from assessing the relative tire
weight as typical or unusually heavy; indeed, in this case, the
tire was removed from the car. In fact, the government used
all three of these techniques before cutting open the tire, any
of which could create the requisite reasonable suspicion. In
addition, the government could have removed the tire from
the rim without destroying it.
However, rather than rely upon reasonable suspicion in this
case, the government instead seeks a broad rule permitting it
to indiscriminately destroy the property of any person cross-
ing the border. I would not hold, as the majority does, that in
these circumstances the government may ruin the spare tire of
every car that crosses the border, regardless of the resulting
safety risks or cost to the motorist.2
Although the majority opinion cites Flores-Montano’s
admonition against balancing tests, that admonition is against
employing a routine/non-routine balancing test to border
searches in general. Flores-Montano, 124 S.Ct. at 1585. A
totality of the circumstances test to assess whether a search is
so destructive as to require reasonable suspicion need not be
employed when searches are non-destructive, see, e.g., Cama-
cho, 368 F.3d at 1185, a rule that fully respects the fact that
2
By this statement, I do not imply any criticism of the men and women
who serve their country under difficult conditions at our nation’s borders.
Indeed, as I have emphasized, the officers in this case took pains to
develop reasonable suspicion, as I believe they should. However, the gov-
ernment has chosen to take the litigating position that there are no Fourth
Amendment limits to destructive searches at the border which, carried to
its logical conclusion, means that there are no Fourth Amendment restric-
tions to border searches at all. It is that position with which I respectfully
disagree.
UNITED STATES v. CORTEZ-ROCHA 871
most property searches at the border are, by virtue of the fact
that they occur at the border, reasonable. Flores-Montano,
124 S.Ct. at 1585. However, Flores-Montano contains no
admonition against using a totality of the circumstances bal-
ancing test to assess reasonability when that question is
squarely posed, as it is here, given a destructive property
search at the border. Id. at 1587.
We cannot assess the “reasonability” of a search under the
Fourth Amendment in any principled manner without some
sort of balancing test, except in those particular circum-
stances, such as non-destructive property searches, where rea-
sonability may be presumed. We cannot presume
reasonability here, where the government seeks a rule that it
may perform a search so destructive to a person’s property
that the property becomes useless.
As the “significant factor” in determining whether a search
is so destructive as to require reasonable suspicion under
Flores-Montano, the majority creates a distinction between
destruction of functional vehicle components and destruction
of containers in the vehicle. Even if this were a fair interpreta-
tion of Flores-Montano, a spare tire is not a container but, in
fact, is a functional vehicle component placed in the automo-
bile for safety purposes; thus, the point is not well taken in the
context of this case. Regardless, the fact that a person’s prop-
erty does not happen to be a vehicle part does not make a
destructive search of that property more reasonable. The
Fourth Amendment does not value vehicle parts more highly
than containers of other articles of personal property. Nor
does Flores-Montano suggest a distinction between functional
vehicle components and other personal property. 124 S.Ct. at
1587 (“[I]t may be true that some searches of property are so
destructive as to require [reasonable suspicion]”) (emphasis
added). Unreasonable and irreparable destruction of a suit-
case, a rare item, or an item of sentimental value is also viola-
tive of a person’s right to be secure in his or her person and
872 UNITED STATES v. CORTEZ-ROCHA
property. U.S. Const. amend. IV. Yet any such destruction is
permissible under the majority’s reasoning.
The majority also virtually discounts the fact that less intru-
sive alternatives exist to cutting open a spare tire, by stating
that a least-intrusive means test would undermine the govern-
ment’s inherent authority to conduct searches at the border
without suspicion. But the fact that a least-intrusive means
test would be inappropriate does not indicate that the presence
of inexpensive and less-destructive means of searching is
completely irrelevant. I would include the presence of those
means at a particular site, as well as their ease of use, in the
analysis of whether it is reasonable to engage in a destructive
search without suspicion.
The majority also appears to dismiss the harm engendered
by destroying a spare tire, in part by citing to the fact that vic-
tims of property destruction can obtain civil damage reme-
dies. While this remedy exists, it is irrelevant to the question
whether a destructive search is of the sort that violates the
Fourth Amendment. Neither Flores-Montano nor the majority
opinion alter the exclusionary rule as a remedy for Fourth
Amendment violations. The Court in Flores-Montano stated
that in the context of a vehicle tank dismantle search which
generally poses no harm to the property, the cure for any
damage that did occur would be economic:
Respondent cites not a single accident involving
the vehicle or motorist in the many thousands of gas
tank disassemblies that have occurred at the border.
A gas tank search involves a brief procedure that can
be reversed without damaging the safety or operation
of the vehicle. If damage to a vehicle were to occur,
the motorist might be entitled to recovery.
124 S.Ct. at 1587. In other words, gas tank disassemblies do
not, as a general matter, cause damage and are therefore per
se reasonable at the border. Any damage caused would result
UNITED STATES v. CORTEZ-ROCHA 873
from accident or negligence, not an unreasonable search in
violation of the Fourth Amendment, and would therefore be
properly cured by a tort.
This statement does not alter the rule that when there is a
sufficiently causal relationship between property destruction
and the fruits of a search, those fruits are suppressed. See
United States v. Ramirez, 523 U.S. 65, at 72 n.3 (1998)
(“Because we conclude that there was no Fourth Amendment
violation, we need not decide whether, for example, there was
sufficient causal relationship between the breaking of the win-
dow and the discovery of the guns to warrant suppression of
the evidence.”) (citing Nix v. Williams, 467 U.S. 431 (1984)
(creating the independent source doctrine as a limitation on
the exclusionary rule) and Wong Sun v. United States, 371
U.S. 471 (1963) (holding that direct and indirect evidence
from unlawful searches is inadmissible)).
Finally, the majority finds justification for eliminating all
Fourth Amendment restrictions at the border in our nation’s
recent tragedies. The times demand vigilance, of course. But
our country has been through periods of great national distress
before, in which we have also faced great threats at our bor-
ders. The challenge in such times is not to allow our fear to
overcome our values. The best course is to confront these
menaces with vigor, but without abandoning our equal adher-
ence to the rights upon which our nation was founded. By tak-
ing a balanced, common sense approach to border searches,
we both protect our nation from harm and preserve the rights
that we hold dear.
In the present context, the only question is whether the
Fourth Amendment places any limits on the government’s
right at the border to destroy personal property that does not
impair vehicular operation. I believe that it does and would
apply the traditional totality of the circumstances analysis to
assess whether such destructive government searches are rea-
sonable within the meaning of the Fourth Amendment.
Therefore, I respectfully dissent.