United States v. Chaudhry ( 2005 )


Menu:
  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                  No. 04-50421
    Plaintiff-Appellee,
    v.                            D.C. No.
    CR-04-01388-JAH
    DORA CHAUDHRY,
    OPINION
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the Southern District of California
    John A. Houston, 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;
    Concurrence by Judge B. Fletcher;
    Concurrence by Judge Fisher
    13255
    UNITED STATES v. CHAUDHRY              13257
    COUNSEL
    Chase Scolnick, Assistant Federal Public Defender, San
    Diego California, for the appellant.
    Mark R. Rehe, Assistant United States Attorney, San Diego,
    California, for the appellee.
    OPINION
    B. FLETCHER, Circuit Judge:
    Appellant Dora Chaudhry appeals from her conditional-
    plea conviction for importation of marijuana in violation of 18
    13258                UNITED STATES v. CHAUDHRY
    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 sin-
    gle hole with a diameter of 5/16 of an inch does not constitute
    a property search that is “so destructive as to require a differ-
    ent result,” United States v. Flores-Montano, 
    541 U.S. 149
    ,
    156 (2004), we affirm.
    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 undercar-
    riage of the truck.1 Chaudhry was then referred to secondary
    inspection, where a 5/16-inch hole was drilled in the bed of
    the truck, revealing a blue plastic material. Inspector Jose
    Mella testified that, based on his experience, the blue plastic
    evidenced a probability that narcotics were hidden beneath the
    bed of the truck. He then used a saw and “jaws of life” to
    remove what turned out to be a false truck bed, revealing
    numerous bricks of what later tested to be marijuana. Inspec-
    tors took a series of photographs that were introduced into
    evidence at the suppression hearing.
    Once the government disclaimed any reliance on the detec-
    1
    Although this canine sniff would have provided the officers with prob-
    able cause if the canine team had proved reliable, United States v. Cedano-
    Arellano, 
    332 F.3d 568
    , 573 (9th Cir. 2003), the government decided dur-
    ing the suppression hearing not to rely on the dog sniff. We therefore
    entertain the fiction that the search was performed in the absence of suspi-
    cion.
    UNITED STATES v. CHAUDHRY                    13259
    tor dog alert, Chaudhry moved to suppress the marijuana evi-
    dence, contending that it had been seized in violation of the
    Fourth Amendment during a “destructive” or “intrusive” vehi-
    cle search unsupported by a reasonable suspicion of unlawful
    activity. The district court then denied the motion, ruling that
    the drilling of a 5/16-inch hole “was not the type of intrusive
    search that would trigger something other than a routine
    search description under Flores-Montano, and that no reason-
    able suspicion was required.” The district court made clear
    that it was not relying on the dog alert as justification for its
    denial of the motion. Thus the only issue presented in the
    present appeal is whether the border patrol agents needed any
    degree of suspicion prior to drilling the hole.2
    II.
    We review de novo the district court’s ruling on a motion
    for suppression of evidence. United States v. Sandoval, 
    390 F.3d 1077
    , 1080 (9th Cir. 2004). Factual determinations
    underlying the district court’s ruling are reviewed for clear
    error. 
    Id. [1] Last
    year, the Supreme Court unanimously held that
    under the Fourth Amendment, a vehicle search at the border
    involving the disassembly and reassembly of a vehicle’s gas
    tank did not require a reasonable suspicion to believe the gas
    tank contained contraband. United States v. Flores-Montano,
    
    541 U.S. 149
    , 155 (2004) (“the Government’s authority to
    conduct suspicionless inspections at the border includes the
    authority to remove, disassemble, and reassemble a vehicle’s
    fuel tank”). The Court first held that a vehicle’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 seri-
    2
    Specifically, Chaudhry does not contend that the search involving the
    removal of the truck bed was unreasonable once the blue plastic was
    revealed.
    13260                UNITED STATES v. CHAUDHRY
    ous damage to, or destruction of, the property.” 
    Id. at 154.
    However, 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 156.
    The Court also “[left] open the
    question ‘whether, and under what circumstances, a border
    search might be deemed ‘unreasonable’ because of the partic-
    ularly 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 allow for
    the suspicionless slashing of a vehicle’s spare tire at the border.3
    United States v. Cortez-Rocha, 
    394 F.3d 1115
    (9th Cir. 2005),
    petition for cert. filed, (U.S. May 25, 2005) (No. 04-10392).
    We followed a similar approach to that of the Supreme Court,
    declaring that destruction of a spare tire was not “so destruc-
    tive as to require a different result,” without defining what
    might constitute such an unreasonably destructive search. 
    Id. at 1125.
    We further declined to adopt a balancing test, yet we
    relied heavily on an analysis of two primary considerations:
    the degree of damage to the vehicle and any potential effect
    on the safety or security of the vehicle. More specifically, we
    first 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.
    Second, we concluded that the “disabling of a
    spare tire [does not] undermine the immediate safety of the
    vehicle or threaten the security of the vehicle’s driver or pas-
    sengers.” 
    Id. at 1120.
    [3] We have yet to address the issue of “exploratory drill-
    3
    We have also concluded that a suspicionless search of a spare tire using
    a radioactive density meter called a “Buster” was not unreasonable
    because it was not destructive or intrusive, and because there was no
    potential harm to the motorist. United States v. Camacho, 
    368 F.3d 1182
    ,
    1185-86 (9th Cir. 2004).
    UNITED STATES v. CHAUDHRY                      13261
    ing” in suspicionless vehicle searches at the border since the
    Supreme Court’s decision in Flores-Montano.4 We now con-
    clude that a single 5/16-inch hole drilled in the bed of a
    pickup truck does not require reasonable suspicion because it
    is not “so destructive as to require a different result.” Flores-
    
    Montano, 541 U.S. at 156
    ; 
    Cortez-Rocha, 394 F.3d at 1125
    .
    There is little doubt that a hole the diameter of a pencil drilled
    into the bed of a pickup truck is not “significant damage, or
    destruction of, the vehicle” of a kind that would “hinder the
    operation of the vehicle.” 
    Cortez-Rocha, 394 F.3d at 1119
    -
    1120. Nor can Chaudhry plausibly argue that the hole “under-
    mine[s] the immediate safety of the vehicle or threaten[s] the
    security of the vehicle’s driver or passengers.” 
    Id. at 1120.
    While the Supreme Court also foreshadowed that a “border
    search might be deemed ‘unreasonable’ because of the partic-
    ularly offensive manner in which it is carried out,” Flores-
    
    Montano, 541 U.S. at 154
    , n.2 (quoting United States v. Ram-
    sey, 
    431 U.S. 606
    , 618, n.13 (1977)), such was not the case
    here. In sum, a single small-diameter hole in a truck bed does
    not reduce the functionality, operation or safety of the vehicle,
    and the facts of this case do not demonstrate that the search
    was otherwise carried out in such an “offensive” manner as to
    be deemed unreasonable. Again we express no opinion as to
    how much destruction or intrusiveness might trigger the need
    for reasonable suspicion of criminal activity to justify a
    destructive search. We only determine that that threshold was
    not breached in the present case.
    4
    In United States v. Bennett, 
    363 F.3d 947
    (9th Cir.), cert. denied, 
    125 S. Ct. 363
    (2004), law enforcement officers drilled three or four holes in
    a boat, held the boat overnight, then x-rayed it, during a border search that
    eventually revealed marijuana concealed in a hidden compartment. 
    Id. at 949.
    Because reasonable suspicion existed, we did not determine whether
    the destructive and extended nature of the search would have rendered the
    search unconstitutional in the absence of such suspicion. 
    Id. at 951.
    Indeed, we expressly reserved the question of whether exploratory drilling
    searches must be supported by reasonable suspicion. 
    Id. at n.3.
    13262             UNITED STATES v. CHAUDHRY
    Chaudhry cites to the three out-of-circuit cases, each men-
    tioned by the Supreme Court in Flores-Montano, holding that
    destructive “exploratory drilling” searches require a showing
    of reasonable suspicion. See Flores-
    Montano, 541 U.S. at 154
    , n.2 (citing United States v. Rivas, 
    157 F.3d 364
    , 367 (5th
    Cir. 1998) (holding that drilling into body of trailer was a
    “non-routine” search that required reasonable suspicion);
    United States v. Robles, 
    45 F.3d 1
    , 5 (1st Cir. 1995) (holding
    that drilling into machine part was a “non-routine” search that
    required reasonable suspicion); United States v. Carreon, 
    872 F.2d 1436
    , 1444-45 (10th Cir. 1989) (holding that drilling
    into camper was a “non-routine” search that required reason-
    able suspicion)). Each of these cases relies on the distinction
    between “routine” and “non-routine” searches, a distinction
    that was specifically limited to searches of the person by the
    Supreme Court. 
    Flores-Montano, 541 U.S. at 152
    . We there-
    fore find them to be of little persuasive value.
    III.
    [4] In sum, we conclude that the drilling of a single small-
    diameter hole into a pickup truck bed that does not affect the
    operation or safety of the vehicle, and which was not carried
    out in a particularly offensive manner, does not require rea-
    sonable suspicion.
    AFFIRMED.
    B. FLETCHER, Circuit Judge, specially concurring:
    I write separately to express my distaste for the govern-
    ment’s game-playing in this case and in two others we heard
    on the same calendar: United States v. Flores-Montano, No.
    04-50447; United States v. Hernandez, No. 04-50286. In each
    case there was reasonable and articulable suspicion of drug
    smuggling. But the government wanted confirmation that no
    UNITED STATES v. CHAUDHRY                     13263
    suspicion is required for extensive, intrusive searches at the
    border. This would have an ancillary benefit for the govern-
    ment — 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, bor-
    ing holes in truck beds) unless they have suspicion. Appar-
    ently no suspicionless search case has come along to allow the
    issue — how destructive and extensive a suspicionless 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 what it can see (by drilling holes, removing gas tanks,
    etc.) without any suspicion whatsoever.
    In each of the cases before us, border inspection agents
    made individualized observations regarding the persons and
    vehicles seeking entry, and in each case, those observations
    were sufficient to support a finding of reasonable suspicion of
    criminal or unlawful activity.1
    •   A narcotics detection dog alerted on the under-
    carriage of Ms. Chaudhry’s pickup truck.
    •   A border agent observed that Mr. Flores-
    Montano avoided eye contact during questioning,
    and that his hands were shaking when he pro-
    duced identification. The agent then tapped on
    the gas tank and noticed that it sounded solid.
    1
    Likewise, United States v. Cortez-Rocha, 
    394 F.3d 1115
    (9th Cir.
    2005), involved a search conducted after a dog alert and a density meter
    reading indicating that the spare tire in question was not empty. Yet the
    government refused to rely on such evidence of suspicion to support its
    slashing of the tire.
    13264                UNITED STATES v. CHAUDHRY
    Finally, a narcotics detection dog alerted on the
    vehicle.
    •   A narcotics detection dog alerted on the driver’s
    side door of Mr. Hernandez’s vehicle.
    In each case, the government chose to create a dispute where
    none existed, rather than to prove up its officers’ valid suspi-
    cions. The only issue on appeal in each case was the propriety
    of a fictional “suspicionless” search. These cases likely would
    not have been appealed had the government taken the trouble
    to present a modicum of evidence showing why the agent
    referred the vehicle to secondary for a search.
    I see two problems with such an approach to litigation.2
    First, such appeals are essentially a request for an advisory
    opinion, as the dispute over whether or not a particular search
    may be conducted in the absence of any suspicion is an
    entirely fictional construct. Suspicion existed in each case,
    and in my view, review of cases at the appellate level is a
    waste of judicial resources. The only possible purposes are the
    government’s desire to push the envelope to its limits: to find
    out just how much destruction it can do without any suspi-
    cion, and to avoid proving it uses reliable dogs. Second,
    because there is ample suspicion in each case, it is difficult for
    judges to consider the issue cleanly on an unencumbered
    record. Evidence of probable criminal activity, especially evi-
    dence of narcotics detector dog alerts, cannot help but color
    judges’ views of the facts. We inevitably think “harmless
    error.” I must admit that I take comfort in knowing that the
    border agents in these cases did not rip apart the defendants’
    cars on a whim. However, were I to decide a case where there
    is truly no suspicion, and where five or ten exploratory holes
    are drilled in the exterior walls of a vehicle, I might reach a
    different result.
    2
    I emphasize that the issues in these cases are fabricated by the govern-
    ment’s stance in litigation, not the actual facts of each search.
    UNITED STATES v. CHAUDHRY               13265
    FISHER, Circuit Judge, specially concurring:
    Like Judge Fletcher, I am troubled by the government’s
    evident decision in this and other cases, including United
    States v. Flores-Montano, No. 04-50447, and United States v.
    Hernandez, No. 04-50286, 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.