United States v. Chaudhry

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.