Reply Brief — Hubert Youte, Petitioner v. United States

No. 18-9381

IN THE

Supreme Court of the United States

______________

HUBERT YOUTE,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

______________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

______________

REPLY BRIEF FOR PETITIONER

______________

MICHAEL CARUSO

FEDERAL PUBLIC DEFENDER

ANDREW L. ADLER

Counsel of Record

ASS’T FED. PUBLIC DEFENDER

1 E. Broward Blvd., Ste. 1100

Ft. Lauderdale, FL 33301

(954) 536-7436

Andrew_Adler@fd.org

Counsel for Petitioner

JULY 3, 2019

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................... ii

REPLY BRIEF FOR PETITIONER .............................................................................. 1

I.

THE CIRCUIT SPLIT IS REAL ................................................................................ 2

A.

The Third Circuit Requires Reasonable Suspicion ................................. 2

B.

The Ninth Circuit Requires Reasonable Suspicion................................. 6

II. THE DECISION BELOW IS WRONG ..................................................................... 12

CONCLUSION............................................................................................................. 15

i

TABLE OF AUTHORITIES

CASES

Alabama v. White,

496 U.S. 325 (1990) .................................................................................................. 14

Arjmand v. Dep’t of Homeland Sec.,

2018 WL 1755428 (C.D. Cal. Feb. 9, 2018) ................................................................ 9

Boyd v. United States,

116 U.S. 616 (1886) .................................................................................................. 13

Bryan v. United States,

913 F.3d 356 (3d Cir. 2019) .................................................................................... 5, 6

California v. Carney,

471 U.S. 386 (1985) .................................................................................................. 14

Florida v. Jardines,

569 U.S. 1 (2013) ...................................................................................................... 12

Illinois v. Wardlow,

528 U.S. 119 (2000) .................................................................................................. 14

Kyllo v. United States,

533 U.S. 27 (2001) .................................................................................................... 13

Minnesota v. Olson,

495 U.S. 91 (1990) .................................................................................................... 13

Olmstead v. United States,

277 U.S. 438 (1928) .................................................................................................. 13

Silverman v. United States,

365 U.S. 505 (1961) ............................................................................................ 12, 13

U.S. Dist. Court for Eastern Dist. of Mich. (Keith),

407 U.S. 297 (1972) .................................................................................................. 12

ii

United States v. Alfaro-Moncada,

607 F.3d 720 (11th Cir. 2010) .......................................................................... 1, 6, 10

United States v. Alfonso,

759 F.2d 728 (9th Cir. 1985) ............................................................................ passim

United States v. Eagon,

707 F.2d 362 (9th Cir. 1982) ...................................................................................... 7

United States v. Montoya de Hernandez,

473 U.S. 531 (1985) .......................................................................................... 4, 5, 15

United States v. Ramsey,

431 U.S. 606 (1977) .................................................................................................. 11

United States v. Saboonchi,

990 F. Supp. 2d 536 (D. Md. 2014) ............................................................................ 9

United States v. Seljan,

497 F.3d 1035 (9th Cir. 2007), vacated on rehearing by

547 F.3d 993 (9th Cir. 2008) (en banc) .............................................................. 10, 11

United States v. Smith,

2000 WL 1838708 (E.D. La. Dec. 13, 2000), rev’d on other grounds by

273 F.3d 629 (5th Cir. 2001) .................................................................................... 10

United States v. Streifel,

665 F.2d 414 (2d Cir. 1981) ........................................................................................ 7

United States v. Whitted,

541 F.3d 480 (3d Cir. 2008) .............................................................................. passim

Welsh v. Wisconsin,

466 U.S. 740 (1984) .................................................................................................. 12

OTHER AUTHORITIES

Wayne R. LaFave,

Search & Seizure (5th ed. 2018) .............................................................................. 10

iii

REPLY BRIEF FOR PETITIONER

____________________________________

The question presented is straightforward: does the Fourth Amendment

require reasonable suspicion to search the living quarters of a vessel at the border?

The government does not dispute that this question is a recurring one of national

importance: countless seafarers and crew members dwell on vessels that dock in

U.S. ports; and customs officers inspect those vessels on a daily basis. See Pet. 10–

12. Nor does the government dispute that this case is an ideal vehicle: the question

presented was pressed and passed on in the courts below; the lower courts did not

alternatively find, and the government did not argue, that reasonable suspicion

supported the entry and search of Petitioner’s cabin; and a favorable resolution of

the question presented would otherwise be case dispositive. See Pet. 13–14.

Instead, the government opposes review on the ground that there is no circuit

conflict. It argues that, despite explicitly saying so in published opinions, the Third

and Ninth Circuits have not actually held that reasonable suspicion is required to

search the living quarters on a vessel at the border. Therefore, in the government’s

view, no conflict exists with the Eleventh Circuit’s contrary holding in United States

v. Alfaro-Moncada, 607 F.3d 720, 726–32 (11th Cir. 2010).

BIO 5, 10–12.

As

explained below, however, the government characterizes opinions that the Third

and Ninth Circuits might have written, not the opinions they actually wrote. The

government also defends the Eleventh Circuit’s position, BIO 5–10, but its

argument ignores the privacy interests that seafarers have in their living quarters.

And, in any event, the circuit split should be resolved whichever side is correct.

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I.

THE CIRCUIT SPLIT IS REAL

The government begrudgingly acknowledges that both the Third and Ninth

Circuits have expressly stated in published opinions that reasonable suspicion is

required to search a cabin at the border. BIO 10, 12. The government nonetheless

argues that those statements were dicta. But the text of the opinions makes clear

that those fully-reasoned statements were central to the rationale of the decisions.

And the government cites no authority embracing its revisionist interpretation.

A. The Third Circuit Requires Reasonable Suspicion

The Third Circuit’s decision is United States v. Whitted, 541 F.3d 480 (2008).

1.

In its introductory paragraph, the Third Circuit framed the question

before it as “whether the Fourth Amendment requires any level of suspicion to

justify a border search of a passenger cabin aboard a cruise liner arriving in the

United States from a foreign port.” Id. at 482. The court then summarized its

answer: “For the reasons that follow, we believe that it does and that reasonable

suspicion is the appropriate standard.” Id.

In the lead-in section of its legal analysis, the court again repeated that “[t]he

question here . . . is not whether the customs officers were required to have a

warrant or probable cause in order to search Whitted’s private cabin, but, rather,

whether reasonable suspicion was necessary.” Id. at 485. The court continued that,

in order to resolve “whether any Fourth Amendment protection applies to a search

of a private sleeping cabin,” the court “must first decide whether the border search

2

at issue was routine or non-routine and, so doing, set forth the correct standard

required under the Fourth Amendment.” Id.

Over the course of twelve paragraphs, the court analyzed whether reasonable

suspicion was required to search the living quarters of a vessel at the border. Id.

at 485–89. After summarizing other decisions, the court concluded that it was: “We

believe that these courts correctly recognize that the search of private living

quarters aboard a ship at the functional equivalent of a border is a nonroutine

border search and must be supported by reasonable suspicion of criminal conduct.”

Id. at 488. The court repeated that conclusion multiple times. See id. (“We find

that requiring reasonable suspicion strikes the proper balance between the

interests of the government and the privacy rights of the individual. . . . We,

therefore, join those courts that require reasonable suspicion to search of a

passenger cabin aboard a ship.”); id. at 489 (“Individuals have a reasonable and

high expectation of privacy in their living and sleeping quarters aboard ships, even

at national borders, which merits Fourth Amendment protection.”); id. (“Because of

the high expectation of privacy and level of intrusiveness, the search cannot be

considered ‘routine’ and must therefore be supported by reasonable suspicion of

illegal activity.”). The Third Circuit could not have been clearer.

2.

The government nonetheless argues (BIO 12) that the numerous

passages above were merely dicta because the court went on to conclude that the

officers in that case did in fact possess reasonable suspicion. Id. at 489–91. That’s

preposterous. The Third Circuit did what courts routinely do: it first determined

3

the governing legal standard (i.e., reasonable suspicion); and it then determined

whether the facts of the case satisfied that standard. Both aspects of the decision

necessarily formed part of its holding. Indeed, if the court had instead concluded

that no suspicion was required, then the decision would have stopped there. There

would have been no need for the court to address whether reasonable suspicion

existed. Thus, the court’s thoroughly-reasoned and repeated conclusion requiring

reasonable suspicion was central to the decision’s ratio decidendi.

The government points to Judge Chagares’ concurring opinion, where he

explained that he would have preferred to resolve the case by instead assuming,

without deciding, that reasonable suspicion was required. Id. at 491–93. But the

majority did decide that issue and thus established the legal standard for cabin

searches at the border. And not even Judge Chagares characterized that aspect of

the majority’s opinion as dictum. To the contrary, the very basis of his criticism was

that the majority did require reasonable suspicion rather than simply assume it

was required.

In short, the government describes an opinion that it may have

wanted the Third Circuit to write, not the one it actually wrote.

3.

The government’s characterization of Whitted’s holding conflicts not

only with the text of the opinion itself but with this Court’s characterization of its

own holding in United States v. Montoya de Hernandez, 473 U.S. 531 (1985). That

Fourth Amendment border-search case involved the same dynamic as Whitted. The

Court first addressed “what level of suspicion would justify a seizure of an incoming

traveler for purposes other than a routine border search.” Id. at 540. After seven

4

paragraphs of analysis, the Court “h[e]ld that the detention of a traveler at the

border, beyond the scope of a routine customs search and inspection, is justified at

its inception if customs agents . . . reasonably suspect that the traveler is smuggling

contraband in her alimentary canal.” Id. at 541 (emphasis added). Notably, the

Court characterized that aspect of its opinion as a “holding” even though the Court

went on to conclude that reasonable suspicion did in fact exist (and that the

detention there was not unreasonable in scope). Id. at 542–44. Just as Montoya de

Hernandez’s holding included the aspect of the decision setting forth the

reasonable-suspicion standard, so too did Whitted’s holding include the aspect of the

decision setting forth that legal standard for cabin searches at the border.

4.

Lest there be any doubt, the Third Circuit itself understands Whitted’s

holding that way.

In Bryan v. United States, 913 F.3d 356 (3d Cir. 2019),

passengers brought suit against customs officers for searching their cabins at the

border. In summarizing the applicable law, the Third Circuit stated: “In United

States v. Whitted . . . , we held for the first time that because of a passenger’s high

expectation of privacy and the level of intrusiveness, a search of a cruise ship cabin

at the border is non-routine and requires reasonable suspicion.”

Id. at 362

(quotation omitted; emphasis added). The court repeatedly referred to “the Whitted

standard” as requiring reasonable suspicion for cabin searches at the border. Id.

at 362–63. The court ultimately granted qualified immunity to the officers because

the law was not “clearly established.” But the court did not reach that conclusion

because Whitted’s reasonable-suspicion standard was mere dictum. Rather, it did

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so because Whitted was decided only a day or two before the searches there took

place, and thus before the officers “could reasonably be expected to have learned of

this development in our Fourth Amendment jurisprudence.” Id. at 363.

Thus, the Third Circuit considers Whitted’s reasonable-suspicion standard to

be circuit precedent.

That precedent binds customs officers, prosecutors, and

district courts in that Circuit.

While the government observes that there is no

Third Circuit decision excluding evidence under Whitted, it overlooks the most

likely explanation for that omission: customs officers and prosecutors have been

faithfully applying the holding in Whitted. Meanwhile, they do not need reasonable

suspicion in the Eleventh Circuit under Alfaro-Moncada. In that regard, there are

numerous busy ports in the Third and Eleventh Circuits—including in Newark,

Philadelphia, Pittsburgh, Wilmington, Camden, the U.S. Virgin Islands, Mobile,

Savannah, Tampa, Ft. Lauderdale, Jacksonville, and Miami, just to name a few.

Accordingly, that circuit conflict alone warrants this Court’s review and resolution.

B. The Ninth Circuit Requires Reasonable Suspicion

But there is more: United States v. Alfonso, 759 F.2d 728 (9th Cir. 1985).

1.

The Ninth Circuit in Alfonso addressed two distinct Fourth

Amendment arguments. First, the defendant argued that the search of the vessel

“cannot be considered a border search” at all. Id. at 733. Second, the defendant

argued that “even if the search is deemed a proper border search, the search of his

private living quarters on the ship was unreasonable under the Fourth

Amendment.”

Id.

After concluding that the search of the vessel was a proper

6

border search under the “extended border search” doctrine, the court separately

addressed the defendant’s alternative argument that “its scope, extending as it did

to sealed packages beneath a bunk bed in his living quarters, was unreasonable

under the Fourth Amendment. The government, on the other hand, maintains there

is no legitimate privacy interest immune from border search in any part of a vessel

entering the United States.” Id. at 737.

The court agreed with the defendant. It “found no cases directly confronting

the permissible scope of a border search involving the living quarters of a ship.” Id.

However, after reviewing case law and general border-search principles, the Court

issued the following statement of law:

Obviously, a search of the private living quarters of a ship is more

intrusive than a search of other areas. See United States v. Eagon, 707

F.2d 362, 366 (9th Cir. 1982) (Boochever, J., concurring); United States

v. Streifel, 665 F.2d 414, 423 (2d Cir. 1981). The private living quarters

are at least analogous to a private dwelling. As a result, even in the

context of a border search, the search of private living quarters on a

ship should require something more than naked suspicion.

Id. at 737–38 (internal citation omitted).

There is only one way to read that

paragraph: reasonable suspicion is required for cabin searches at the border.

Yet the government barely even acknowledges this critical paragraph.

Indeed, it conspicuously fails to quote the first two sentences at all, quoting only the

latter clause of the third sentence. BIO 10. But the first two sentences cannot be

overlooked: they supply the court’s rationale for requiring reasonable suspicion.

That rationale focused on the heightened degree of privacy in living quarters, the

intrusiveness of searching that space, and its similarity to a private dwelling.

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2.

Despite omitting Alfonso’s core reasoning, the government still argues

(BIO 11–12) that the court’s statement requiring reasonable suspicion was dictum

because, as in Whitted, the court went on to conclude that reasonable suspicion

existed on the facts of that case. 759 F.2d at 738. That argument fails for the same

reasons explained above.

The government also argues (BIO 10–11) that the statement in Alfonso is

dictum because, in the first section of the court’s Fourth Amendment analysis, it

upheld the search of the vessel under the “extended border search” doctrine, which

generally requires reasonable suspicion. Id. at 734. The government suggests that,

because the search of the cabin occurred during an extended border search of the

vessel, the cabin search required reasonable suspicion for that reason.

But the Ninth Circuit did not employ that reasoning.

Instead, the court

conducted a separate and independent legal analysis about what level of suspicion

was required to justify a “border search involving the living quarters of a ship.” Id.

at 737–38. And, in concluding that reasonable suspicion was required, the court

focused exclusively on the heightened privacy interests in the living quarters and

the intrusiveness of searching them. At no point in that legal analysis did the court

mention the extended border search doctrine. Rather, the court’s legal analysis

repeatedly referred to border searches in general.1 That section of the decision

See Alfonso, 759 F.2d at 737 (“The government, on the other hand, maintains

there is no legitimate privacy interest immune from border search in any part of a

vessel entering the United States.”); id. (“We have found no cases directly

confronting the permissible scope of a border search involving the living quarters of

a ship.”); id. (“Williams offers limited guidance here, since it did not involve a

1

8

referred to an “extended border search” only once and that was after it already

concluded that reasonable suspicion was legally required. At that point, the court

factually found that the same level of reasonable suspicion supporting the extended

border search of the ship also supported the search of the cabin. Id. at 738.

In short, had the Ninth Circuit believed that the extended border doctrine

required reasonable suspicion for the cabin search, it could have easily said so and

dispensed with further analysis. Instead, it concluded that reasonable suspicion

was required for all border searches of the living quarters based on the heightened

privacy interests involved. As with Whitted, the government is characterizing an

opinion it may have wanted the court to write, not the one it actually wrote.

3.

Unsurprisingly, several courts share Petitioner’s interpretation. The

Third Circuit in Whitted found Alfonso to be the “the case most clearly on point.”

For it understood Alfonso to have “concluded” that reasonable suspicion was

required for border searches of the living quarters. Whitted, 541 F.3d at 486–87.

So too have numerous lower courts across the country. See, e.g., Arjmand v.

Dep’t of Homeland Sec., 2018 WL 1755428, at *6–7 (C.D. Cal. Feb. 9, 2018) (finding

that the plaintiff stated a Fourth Amendment claim under Alfonso where customs

officers allegedly searched his cabin and luggage without reasonable suspicion);

United States v. Saboonchi, 990 F. Supp. 2d 536, 551–52 (D. Md. 2014) (discussing a

border search.”); id. (“Border searches are premised upon the right of the

government to prevent the importation of contraband or undeclared merchandise

and the general understanding that persons, parcels, and vehicles crossing the

border may be searched.”); id. at 738 (“As a result, even in the context of a border

search, the search of private living quarters on a ship should require something

more than naked suspicion.”) (emphases added).

9

“line of cases that has held that searches of private quarters on ships arriving at

U.S. ports from abroad resemble the search of a home too closely to be permitted

absent reasonable suspicion”) (quoting Whitted and citing Alfonso); United States v.

Smith, 2000 WL 1838708, at *1 (E.D. La. Dec. 13, 2000) (“as other courts have

recognized, a search of a passenger’s cabin aboard a ship is not routine given the

intrusive nature of the search. Accordingly even in the context of a border search,

the search of private living quarters on a ship must at least be supported by

reasonable suspicion of criminal activity.”) (citing Alfonso, 759 F.2d at 737–38),

rev’d on other grounds by 273 F.3d 629, 633 (5th Cir. 2001) (finding reasonable

suspicion); United States v. Eltayib, 808 F. Supp. 160, 163 (E.D.N.Y. 1992) (“The

Alfonso case . . . held that a border search could extend to the crew’s living quarters

and even encompass sealed packages secreted beneath a bunk bed.

The court

sustained such a search on reasonable suspicion that contraband was on board.”).

And so too has one leading Fourth Amendment treatise.

See Wayne R.

LaFave, Search & Seizure §§ 10.5(a), (f) nn.15, 184–85 (5th ed. 2018) (grouping

Whitted and Alfonso together, and contrasting their holdings with Alfaro-Moncada).

4.

Despite the unambiguous language in Alfonso and the authorities

interpreting it, the government speculates (BIO 11) that the Ninth Circuit might

not require reasonable suspicion for a cabin search at the border. It relies solely on

United States v. Seljan, 547 F.3d 993 (9th Cir. 2008) (en banc).

But that case

involved a customs inspection of an envelope placed for international mailing in a

FedEx facility. And even though that case had nothing to do with the search of

10

living quarters, it still cited the key section of the Alfonso opinion with approval.

Id. at 999. It necessarily did so with full awareness of that section’s holding, as the

panel opinion had expressly recognized that, “[i]n Alfonso, we held that ‘in the

context of a border search, the search of a private living quarters on a ship should

require something more than naked suspicion.’” United States v. Seljan, 497 F.3d

1035, 1042 (9th Cir. 2007) (quoting Alfonso, 759 F.2d at 738) (emphasis added).

Ignoring that favorable citation, the government argues that, since Alfonso,

the Ninth Circuit has found a Fourth Amendment violation only where a border

search was a highly intrusive search of the person, involved the destruction of

property, or was carried out in an offensive manner. But the government fails to

explain why the suspicionless search of private living quarters would not qualify as

highly intrusive or offensive. After all, that is what Alfonso held.

Rather than calling that holding into question, Seljan expressly “declined the

government’s invitation to decide th[at] case by holding that, at the border,

anything goes.” Id. at 1000. And rather than issuing any sweeping holding of its

own, the court limited its ruling to “the particular circumstances” of that case. Id.

Plus, it found that this Court had already “effectively rejected [the defendant’s]

contention” in United States v. Ramsey, 431 U.S. 606 (1977), which also involved a

customs inspection of international mail. Id. at 1003. Yet this Court has never

addressed the question here. Thus, the government identifies no reason to believe

that the Ninth Circuit would not follow its own longstanding precedent requiring

reasonable suspicion to search the living quarters on a vessel at the border.

11

5.

In any event, any confusion about Alfonso would still not be a basis for

denying review. The Third and Eleventh Circuits are manifestly divided on an

important and recurring question of national importance. That split alone warrants

resolution. There is no reason to allow any potential confusion to linger in the

Ninth Circuit, the largest circuit home to numerous active ports. The countless

customs officers and seafarers there deserve clarity. Only this Court can provide it.

II.

THE DECISION BELOW IS WRONG

The government also defends the Eleventh Circuit’s position on the merits.

BIO 5–10. But that defense provides no basis for denying review either.

1.

“It is axiomatic that the ‘physical entry of the home is the chief evil

against which the wording of the Fourth Amendment is directed.’”

Welsh v.

Wisconsin, 466 U.S. 740, 748 (1984) (quoting United States v. U.S. Dist. Court for

Eastern Dist. of Mich. (Keith), 407 U.S. 297, 313 (1972)). “At the Amendment’s ‘very

core’ stands ‘the right of a man to retreat into his own home and there be free from

unreasonable governmental intrusion.’” Florida v. Jardines, 569 U.S. 1, 6 (2013)

(quoting Silverman v. United States, 365 U.S. 505, 511 (1961)).

Although no Fourth Amendment principle is more firmly entrenched, the

government barely pays lip service to it here. BIO 7. It repeatedly asserts, without

citation, that the search of a cabin is no more offensive or intrusive than a routine

search of a person or his effects. BIO 6, 7, 8. But that is merely the government’s

opinion. Several courts and judges have disagreed, opining that seafarers possess a

heightened privacy interest in their living quarters. See Pet. 16 & n.2 (citing cases).

12

At the very least, those authorities cast doubt on the government’s position and

exacerbate the circuit split identified above. The government simply ignores that

competing viewpoint.

The government also ignores that private living quarters, wherever located,

permit people to peacefully sleep, bathe, undress, pray, fornicate, defecate,

meditate, recuperate from illness, etc…. No less than mainland dwellers, the sanity

of seafarers depends on “some such oasis, some shelter from public scrutiny, some

insulated enclosure, some enclave, some inviolate place which is a man’s castle.”

Silverman, 365 U.S. at 511 n.4 (quotation omitted).

Invading that sanctuary is

more intrusive than examining a traveler’s material effects.2

As with any other

private dwelling, inside a private cabin, “all details are intimate details,” no matter

how seemingly mundane. Kyllo v. United States, 533 U.S. 27, 37 (2001).

2.

Rather than afford any weight to this legitimate individual interest,

the government’s analysis focuses solely on its own interest in protecting the border.

To be sure, that interest is important too. But Petitioner accounts for it. He does so

by foregoing not one but two default protections embodied in the Fourth

See, e.g., Minnesota v. Olson, 495 U.S. 91, 99 (1990) (“We are at our most

vulnerable when we are asleep because we cannot monitor our own safety”);

Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) (“The

makers of our Constitution . . . knew that only a part of the pain, pleasure and

satisfactions of life are to be found in material things. They sought to protect

Americans in their beliefs, their thoughts, their emotions and their sensations. They

conferred, as against the government, the right to be let alone—the most

comprehensive of rights and the right most valued by civilized men.”); Boyd v.

United States, 116 U.S. 616, 630 (1886) (“It is not . . . the rummaging of his drawers,

that constitutes the essence of the offense; but it is the invasion of his indefeasible

right of personal security, personal liberty and private property”).

2

13

Amendment’s text: a warrant and probable cause. Requiring reasonable suspicion

alone reflects the government’s heightened interest in border security. But it does

so without eliminating the seafarer’s legitimate expectation of privacy.

Petitioner’s charitable framework also negates the government’s reliance on

California v. Carney, 471 U.S. 386 (1985). In Carney, this Court held that the

“automobile exception” to the warrant requirement applied to the search of a fully

mobile motor home parked in a public place. Yet the Court still required probable

cause to support that warrantless search. Id. at 387, 392, 395. Here, Petitioner is

not arguing that a warrant was required. Nor is he arguing that probable cause

was required. Again, to accommodate the government’s interest in border security,

he proposes requiring only reasonable suspicion, a less demanding standard. Thus,

even if the mobile home in Carney could be analogized to a vessel’s cabin, Carney

would still not justify the suspicionless searches the government now seeks.

3.

The government also makes a policy argument that requiring

reasonable suspicion would threaten national security. BIO 9–10. But reasonable

suspicion is not an onerous standard. It “requires a showing considerably less than

preponderance of the evidence.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). And

it may be satisfied by “information that is less reliable than that required to show

probable cause.” Alabama v. White, 496 U.S. 325, 330 (1990).

The government’s argument also has no limit.

Criminals routinely use

private homes, phones, cars, and the internet to effectuate their schemes. But law

enforcement’s desire to thwart those schemes has never displaced the Fourth

14

Amendment from those areas. Nor does it do so at the border. Indeed, this Court

has required reasonable suspicion for a prolonged detention of a suspected smuggler

at the border, notwithstanding the “veritable national crisis in law enforcement

caused by smuggling of illicit narcotics.” Montoya de Hernandez, 473 U.S. at 539,

541. The same lenient standard should be required for intrusive cabin searches.

4.

Lastly, and in any event, even if the government’s merits arguments

were correct, that would be no basis for denying review. To the contrary, that would

mean two circuits are improperly requiring customs officers to obtain reasonable

suspicion to search cabins. That situation in the Third and Ninth Circuits would

require this Court’s intervention no less than if, as Petitioner contends, customs

officers are conducting unconstitutional searches in the Eleventh Circuit. Either

way, there is a lack of uniformity on a recurring and important Fourth Amendment

issue. This Court should resolve that untenable geographic disparity.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

MICHAEL CARUSO

FEDERAL PUBLIC DEFENDER

/s/ Andrew L. Adler

Counsel of Record

ANDREW L. ADLER

ASS’T FED. PUBLIC DEFENDER

1 E. Broward Blvd., Ste. 1100

Ft. Lauderdale, FL 33301

(954) 536-7436

Andrew_Adler@fd.org

15