United States v. Hernandez ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-50286
Plaintiff-Appellee,
v.  D.C. No.
CR-03-03501-MJL
ARTURO HERNANDEZ,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Argued and Submitted
June 10, 2005—Pasadena, California
Filed September 14, 2005
Before: Betty B. Fletcher, Pamela Ann Rymer, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge B. Fletcher
13233
UNITED STATES v. HERNANDEZ 13235
COUNSEL
Lori B. Schoenberg, Assistant Federal Public Defender, San
Diego, California, for the appellant.
Mark R. Rehe, Assistant United States Attorney, San Diego,
California, with Patrick K. O’Toole, Assistant United States
Attorney, San Diego, California, on the brief for the appellee.
OPINION
B. FLETCHER, Circuit Judge:
Appellant Arturo Hernandez appeals from his conditional-
plea conviction for importation of marijuana in violation of 18
U.S.C. §§ 952 and 960. Hernandez contends that border
agents conducted an unreasonable search of his vehicle when
the agents dismantled the interior panels of the doors of the
vehicle, revealing packages of marijuana. Hernandez moved
to suppress evidence of the marijuana, contending that the
search was unreasonably destructive, and that because the
search was unsupported by probable cause, the search vio-
lated the Fourth Amendment. We conclude that the initial
search of the vehicle, which involved merely pulling back the
interior panels of the doors on the vehicle in such a manner
that they could be replaced without damage, was not espe-
cially destructive or otherwise carried out in an offensive
manner. We therefore affirm the conviction.
I.
On December 11, 2003, Arturo Hernandez drove a 1991
Buick Skylark to the Calexico East Port of Entry, along with
13236 UNITED STATES v. HERNANDEZ
a passenger, Jorge Rangel. After some routine questioning,
Hernandez and Rangel were referred to secondary. A
narcotics-sniffing canine alerted to the inside of the vehicle.
Using a screwdriver, the customs inspector then “pulled the
panel” from the inside of the driver’s side door, revealing
“packages” inside the door. According to Senior Inspector
Giancarlo Picciao, the panel was removed in “an easy way,
[so] that if we [don’t] find anything [we] can put it back
together without damage. Very gently.” When asked, “What
kind of force was used in removing the panel, initially?” Pic-
ciao responded, “Initially, just the way that we do no damage
to the vehicle.” It was then that the inspector saw the pack-
ages containing what he believed to be marijuana. Once
removed, the substance in the packages tested positive for
marijuana. Hernandez was placed under arrest, and a more
complete search of the interior door panels and the rest of the
vehicle was conducted, during which more packages of mari-
juana were discovered. In all, more than eight kilograms of
marijuana were recovered from the car.
Hernandez moved to suppress evidence resulting from the
search of the vehicle, arguing that the search was “non-
routine” because a certain amount of force was necessary to
remove the door panels, thereby inevitably damaging them,
and that non-routine searches at the border must be supported
by reasonable suspicion.1 Without conducting an evidentiary
hearing on the matter, the district court found that the search
and amount of destruction were “routine” and therefore reason-
1
Hernandez argued that because the government had failed to provide
information regarding the reliability of the detector dog, the government
should not be allowed to rely on evidence of the dog’s alert on his vehicle.
He further argued that without the alert, there was no reasonable suspicion
justifying the search, and the evidence seized should be suppressed. The
government stated that it would not be relying on the canine sniff to estab-
lish reasonable suspicion. Because the district court found the search to be
“routine,” it did not make a finding as to reasonable suspicion, and did not
rely on the detector dog evidence. On appeal, we entertain the fiction that
the search was carried out in the absence of any suspicion.
UNITED STATES v. HERNANDEZ 13237
able.2 In rendering its decision, the court applied three factors
from existing Ninth Circuit precedent: the amount of force
used, the dangerousness, and the psychological intrusiveness
of the search. See United States v. Molina-Tarazon, 279 F.3d
709 (9th Cir. 2002), overruled by United States v. Flores-
Montano, 541 U.S. 149 (2004).
After the government proffered the testimony of Senior
Inspector Picciao,3 defense counsel began to cross-examine
him regarding the tools and force necessary to remove a door
panel. The government objected, citing the court’s prior ruling
that the search and the amount of damage were “routine.” The
district court initially sustained the objection, but when
defense counsel explained that “[The government] attempted
to elicit testimony [from the agent] that there was no damage
to the vehicle. So that is the reason why I was moving to
question about that,” the court responded, “You can follow up
on that a little bit.” Inexplicably, however, defense counsel
moved to a different topic.
The district court ultimately denied the motion to suppress.
Hernandez then entered a conditional guilty plea to one count
of marijuana importation. He now appeals.
II.
This court reviews de novo the district court’s ruling on a
motion for suppression of evidence. United States v. Sando-
val, 390 F.3d 1077, 1080 (9th Cir. 2004). Factual determina-
tions underlying the district court’s ruling are reviewed for
2
As we explain, this routine/non-routine analytical framework has been
denounced by the Supreme Court insofar as searches of property are con-
cerned. United States v. Flores-Montano, 541 U.S. 149, 152-53 (2004).
3
Although an evidentiary hearing was not held for the purpose of deter-
mining the use of force and whether the search was “routine” or “non-
routine,” one was held on a related issue, during which Inspector Picciao
testified regarding the door panel search.
13238 UNITED STATES v. HERNANDEZ
clear error. Id. The decision whether to hold an evidentiary
hearing on a motion to suppress is reviewed for an abuse of
discretion. United States v. Howell, 231 F.3d 615, 620 (9th
Cir. 2000).
[1] After the district court denied the motion to suppress in
this case, the Supreme Court issued its opinion in United
States v. Flores-Montano, 541 U.S. 149 (2004), holding that
the disassembly and reassembly of a vehicle’s gas tank at the
border did not require a reasonable suspicion to believe the
gas tank contained contraband. Id. at 155. The Court first con-
cluded that “[c]omplex 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 vehi-
cles.” Id. at 152. The Court went on to conclude that a vehi-
cle’s driver has no expectation of privacy in the contents of
the vehicle’s gas tank, then noted that the “procedure of
removal, disassembly, and reassembly of the fuel tank . . . has
[not] resulted in serious damage to, or destruction of, the
property.” Id. at 154. Nevertheless, the Court specifically
allowed that “it may be true that some searches of property
are so destructive as to require a different result.” Id. at 155-
56. The Court also “[left] open the question ‘whether, and
under what circumstances, a border search might be deemed
‘unreasonable’ because of the particularly offensive manner
in which it is carried out.’ ” Id. at 154 n.2 (quoting United
States v. Ramsey, 431 U.S. 606, 618, n. 13 (1977)).
[2] We have since relied on Flores-Montano to permit the
suspicionless slashing of a vehicle’s spare tire at the border.
United States v. Cortez-Rocha, 394 F.3d 1115 (9th Cir. 2005),
petition for cert. filed, (U.S. May 25, 2005) (No. 04-10392).
Reiterating the Supreme Court’s analysis, we declared that
destruction of a spare tire was not “so destructive as to require
a different result,” though we declined to define what type of
search might be considered unreasonably destructive. Id. at
1125. In reaching our conclusion, we considered both the
damage to the vehicle, especially that which affects its opera-
UNITED STATES v. HERNANDEZ 13239
tion, and any potential effect on vehicle safety or the security
of the driver and passengers. Id. at 1119-1120. Specifically,
we reasoned that “[a]lthough cutting a spare tire is certainly
damaging to that tire, the important factor is whether the pro-
cedure results in significant damage to, or destruction of, the
vehicle,” focusing on the “operation of the vehicle.” Id. at
1119-1120 (internal citation and quotation omitted). We also
concluded that “disabling of a spare tire [does not] undermine
the immediate safety of the vehicle or threaten the security of
the vehicle’s driver or passengers.” Id. at 1120.
We have likewise upheld a suspicionless border search in
which officers used a radioactive density meter called a
“Buster” to search the inside of a spare tire.4 United States v.
Camacho, 368 F.3d 1182 (9th Cir. 2004). In that case we con-
cluded that because the Buster caused no damage to property,
and because there was no evidence of potential harm to
motorists, no reasonable suspicion was required to perform a
Buster search. Id. at 1185-86. We distinguished prior prece-
dent requiring a heightened level of suspicion for x-ray
searches of the person because such searches are “potentially
harmful to the health of the suspect.” Id. (citing United States
v. Ek, 676 F.3d 379, 382 (9th Cir. 1982)).
[3] In the present case, the record reflects that the initial
search — which involved removal of the interior door panels
in “an easy way, [so] that if we [don’t] find anything [we] can
put it back together without damage. Very gently” — caused
no significant damage to, or destruction of, the vehicle. Nor
4
In another post-Flores-Montano case, we noted that while “most bor-
der searches involving vehicles do not require any articulable level of sus-
picion[.] . . . [e]specially destructive searches of property [ ] may require
reasonable suspicion.” United States v. Bennett, 363 F.3d 947, 951 (9th
Cir.) (internal citation omitted), cert. denied, 125 S. Ct. 363 (2004).
Because the searching officers in that case had ample suspicion under any
standard to conduct the search, which involved exploratory drilling into
interior compartments of a boat, we did not reach the issue of whether
suspicionless drilling would have been permissible. Id.
13240 UNITED STATES v. HERNANDEZ
did it undermine the safety of the vehicle, or present any
potentially harmful effects to the health of the motorist. In
comparison to the complete destruction of a spare tire, the
damage involved through the removal of the door panel in this
case was minimal. In short, the gentle removal of the door
panel was not “so destructive as to require a different result.”5
Flores-Montano, 541 U.S. at 156; Cortez-Rocha, 394 F.3d at
1125. Neither can it be said that the search was conducted in
a particularly offensive manner. Flores-Montano, 541 U.S. at
154, n.2. Therefore, reasonable suspicion was not required
prior to conducting the search.
[4] We also conclude that the district court did not abuse
its discretion in refusing to grant an evidentiary hearing as to
the amount of force to conduct the initial search. See United
States v. Howell, 231 F.3d 615, 620 (9th Cir. 2000). Indeed,
defense counsel eventually was afforded the opportunity to
cross-examine the inspecting agent on the amount of force
used during the search, but declined to pursue that line of
questioning. We see no abuse of discretion where the relief
sought is offered but not accepted.
III.
In sum, we conclude that careful removal of the interior
door panels of Hernandez’s vehicle was not a destructive
search that required reasonable suspicion prior to conducting
the search. Nor did the district court abuse its discretion in
refusing to conduct an evidentiary hearing on the matter.
AFFIRMED.
5
Once the initial package of marijuana was found, of course, the officers
had ample suspicion to justify the further removal of, and damage to, the
door panels, glove box and other components of the vehicle, in an effort
to locate additional stashes of marijuana.