United States v. Walker

MEMORANDUM ^***

Defendant Mindy Ann Walker appeals her conviction for importing marijuana in violation of 21 U.S.C. §§ 952 and 960 and for possessing marijuana with intent to distribute in violation of 21 U.S.C. § 841.

1. Defendant’s first argument is that the agents did not have reasonable suspicion to search her gas tank. This contention is foreclosed by United States v. Flores-Montano, — U.S. —, 124 S.Ct. 1582, 158 L.Ed.2d 311 (2004), in which the Supreme Court held that removing and disassembling a vehicle’s gas tank during a border search does not require reasonable suspicion in view of the government’s plenary authority to conduct suspicionless inspections at the border.

2. Defendant’s second argument is that the search violated the Posse Comitatus Act, 18 U.S.C. § 1385, because a National Guardsman assisted in the search. Even assuming a violation of the Act, a defendant may not obtain exclusion of evidence as a result. See United States v. Roberts, 779 F.2d 565, 568 (9th Cir.1986) (so holding under an earlier version of a similar statute that applied to the Navy), abrogation on other grounds recognized by United States v. Khan, 35 F.3d 426, 432 n. 7 (9th Cir.1994).

AFFIRMED.

*** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.