Petition for Writ of Certiorari — United States v. Flores-Montano

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921794 jy I 1 2003

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In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

MANUEL FLORES-MONTANO

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

THEODORE B. OLSON

Solicitor General

Counsel of Record

MICHAEL CHERTOFF

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

LISAS. BLATT

Assistant to the Solicitor

General

Department of Justice

Washington, D.C. 20530-0001

202) 514-2217

QUESTION PRESENTED

Whether, under the Fourth Amendment to the

United States Constitution, customs officers at the

international border must have reasonable suspicion to

remove, disassemble, and search a vehicle’s fuel tank

for contraband.

TABLE OF CONTENTS

Jurisdietion „ ——

Constitutional and statutory provisions involved

Statement : —

Reasons for granting the petition .

A. The Ninth Circuit’s conclusion that a gas tank

search requires reasonable suspicion is incon-

sistent with the recognized broad power of customs

officials to conduct searches at the border

1. Removal and disassembly of a vehicle's

gas tank at the border is a routine search

2. The court of appeals’ reasoning in concluding

that a gas tank search is nonroutine is flawed .......

3. A suspicionless gas tank search is reasonable

even if such a search is not regarded as routine ...

B. The court of appeals’ decision threatens to impair

the government’s ability to protect the border from

the unwanted entry of persons and things

Conclusion 6——

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Appendix D 2

Appendix E W

15111

TABLE OF AUTHORITIES

Cases:

Almeida-Sanchez v. United States, 413 U.S. 266

EE EE T—.Cũ—œAE xx

Boyd v. United States, 116 U.S. 616 (1886)

(III)

Cases—Continued: Page

Carroll v. United States, 267 U.S. 132 (1925) 11

Maul v. United States, 274 U.S. 501 (1927) 8

United States v. 146,157 Gallons of Alcohol, 3 F. Supp.

450 (D. NJ. 1933) 19

United States v. Molina-Tarazon, 279 F.3d 709

(9th Cir. 2002) 3, 4, 7,

12, 14, 15, 16

United States v. Montoya de Hernandez, 473 U.S.

531 (1985) 6, 7, 8,

10, 11, 12, 16

United States v. Nieves, 609 F. 2d 642 (2d Cir. 1979),

cert. denied, 444 U.S. 1085 (1980) 12

United States v. Ramsey, 431 U.S. 606 (1977) ........... 5, 9, 10

United States v. Ressam, 221 F. Supp. 2d 1252

(W.D. Wash. 2002) 19

United States v. Ross, 456 U.S. 798 (1982) ...... 10

United States v. Villamonte-Marquez, 462 U.S. 579

(1983) . 8, 16

Constitution and statutes:

U.S. Const. Amend. IV 2, 5, 6, 7, 9

Act of July 31, 1789, ch. 5, 1 Stat. 29 .... 9

§ 24, 1 Stat. 43 i)

Act of Aug. 4, 1790, ch. 35, 1 Stat. 145:

§ 27, 1 Stat. 163 9

§ 28, 1 Stat. 168 9

§ 30, 1 Stat. 164 9

§ 31, 1 Stat. 164 8,9

§ 48, 1 Stat. 170 9

§ 50, 1 Stat. 170 i)

§ 60, 1 Stat. 174 9

§ 70, 1 Stat. 177 90

19 U.S.C. 1461 15

19 U.S.C. 1581(a) 2, 4, 6, 8, 9, 17, 19

Constitution and statutes:

111 —

21 U.S.C. 952

21 U.S.C. 960

Miscellaneous:

Customs & Border Protection, Southwest Border Work-

load Statistics: Windows of Opportunity for Drug

Smuggling (last modified Nov. 1, 2002) <http://www.

cbp.gov/xp/cgov/toolbox/about/accomplish/swborder _

workload_stats.xml>

ow w

In the Supreme Court of the United States

No.

UNITED STATES OF AMERICA, PETITIONER

MANUEL FLORES-MONTANO

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the United States

of America, respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The order of the court of appeals (App., infra, 1a) is

unreported. The order of the district court (App., infra,

2a-3a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

March 14, 2003. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

(1)

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

1. The Fourth Amendment to the United States

Constitution provides in relevant part:

The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreason-

able searches and seizures, shall not be violated.

2. Section 1581(a), Title 19, U.S.C., provides:

Any officer of the customs may at any time go on

board of any vessel or vehicle at any place in the

United States or within the customs waters or, as he

may be authorized, within a customs-enforcement

area established under the Anti-Smuggling Act, or

at any other authorized place without as well as

within his district, and examine the manifest and

other documents and papers and examine, inspect,

and search the vessel or vehicle and every part

thereof and any person, trunk, package, or cargo on

board, and to this end may hail and stop such vessel

or vehicle, and use all necessary force to compel

compliance.

STATEMENT

1. On February 12, 2002, Customs Inspector Visente

Garcia conducted an inspection of a 1987 Ford Taurus

station wagon driven by respondent as he entered the

Otay Mesa Port of Entry along the California border.

As the inspector asked some questions, respondent

avoided eye contact. Respondent’s hand also was shak-

ing as he handed the agent his passport. The inspector

tapped on the vehicle’s gas tank with a screwdriver and

noticed that the tank sounded solid. The inspector was

also informed that a dog had alerted to the vehicle.

Respondent was then removed from the vehicle, and

the vehicle was driven to a secondary inspection sta-

tion. At 4:20, Customs Inspector Jovita Pesayco at the

secondary station inspected the gas tank by tapping it

and observing a solid sound. He subsequently re-

quested a mechanic under contract with Customs to

come to the border station to remove the tank. Within

20 to 30 minutes, the mechanic arrived. He raised the

car on a lift, loosened the straps and unscrewed the

bolts holding the gas tank to the undercarriage of the

vehicle, and then disconnected some hoses and electri-

eal connections. That process took 10 to 15 minutes.

After the gas tank was removed, Inspector Pesayco

hammered off bondo (a putty-like hardening substance

that is used to seal openings) from the top of the gas

tank. That process took an additional 5 to 10 minutes.

The inspector opened an access plate underneath the

bondo and found 37 kilograms of marijuana bricks.

App., infra, 4a-5a (Declaration of Visente Garcia, senior

border inspector for the United States Customs Ser-

vice); id. at 7a-9a (Declaration of Jovito Pesayco, senior

border inspector for the United States Customs

Service).

On February 27, 2002, respondent was indicted on

one count of unlawfully importing approximately 37

kilograms of marijuana, in violation of 21 U.S.C. 952,

960, and one count of possession of that marijuana with

intent to distribute it, in violation of 21 U.S.C. 841(a)(1).

Relying on United States v. Molina-Tarazon, 279 F.3d

709 (9th Cir. 2002), respondent moved to suppress the

marijuana uncovered from the gas tank. In Molina-

Tarazon, a divided panel of the Ninth Circuit held that

the removal of the gas tank is a nonroutine border

search that requires reasonable suspicion. Id. at 713-

717. The court also held that, on the facts in that case,

the inspectors had reasonable suspicion to conduct the

search. Id. at 717-718.

In response to respondent’s motion in this case to

suppress evidence of the marijuana found during the

gas tank search, the government advised the district

court that it was not relying on reasonable suspicion as

a basis for denying respondent’s suppression motion,

but that it believed that Molina-Tarazon was wrongly

decided. The government contended that when a vehi-

cle seeks to cross the border, 19 U.S.C. 1581(a) author-

izes customs officers to “search the * * * vehicle and

every part thereof,” without any requirement of a

warrant or particularized suspicion. The government

also contended that t his statute is coextensive with

the Constitution.” Gov’t Response and Opp. to Def’s

Mot. to Suppress Evidence Based on Alleged Non-

Routine Border Search 5 (filed June 17, 2002). The

government’s response also included as exhibits four

affidavits concerning the procedure in this case and the

need to conduct such procedures in other cases. App.,

infra, 4a-18a.

2. On June 19, 2002, the district court ordered the

suppression of the drugs seized from respondent’s gas

tank. Relying on Molina-Tarazon, the court held that

the search was nonroutine and therefore required

reasonable suspicion. App., infra, 3a. The court further

found that “the Government has waived its right to rely

on the alternative basis of reasonable suspicion, and

* * * that, in this case, the Government has declined to

establish reasonable suspicion.” Jbid. The district

court also found “that the facts set forth in the Govern-

1 The court of appeals’ decision in Molina-Tarazon is reprinted

in the Appendix, infra, 19a-36a.

ment’s declarations and motion exhibits are the facts in

this case.” Ibid.

3. On July 26, 2002, the government petitioned for

initial hearing en banc, requesting the court to recon-

sider its decision in Molina-Tarazon. On March 14,

2003, the court of appeals issued an order summarily

affirming the district court’s judgment on the basis of

Molina-Tarazon.’

REASONS FOR GRANTING THE PETITION

“Border searches, * * * from before the adoption of

the Fourth Amendment, have been considered to be

‘reasonable’ by the single fact that the person or item in

question had entered into our country from outside.”

United States v. Ramsey, 431 U.S. 606, 619 (1977).

Essential to the government’s ability to protect the

Nation from the entry of drugs, weapons, explosives,

and unauthorized persons and things is the power to

conduct searches of containers crossing an international

border. “The border-search exception is grounded in

the recognized right of the sovereign to control, subject

to substantive limitations imposed by the Constitution,

who and what may enter the country.” Jd. at 620.

The Ninth Circuit has adopted a rule that is wholly at

odds with the government’s urgent interest in pre-

venting the smuggling of contraband and persons

across our borders. In the view of the Ninth Circuit,

the disassembly of a gas tank of a vehicle to inspect it

for contraband—even when there is no other practica-

ble means of determining what the gas tank contains—

violates the Fourth Amendment unless Customs offi-

cers possess reasonable suspicion that the gas tank

2 The clerk’s office advised the government that, on March 3,

2003, the court denied the government’s petition for initial hearing

en banc without a written order.

conceals contraband. The Ninth Circuit’s approach in-

validates, in part, Congress’s authorization in 19 U.S.C.

1581(a) of suspicionless border searches of vehicles—a

statutory provision whose antecedents reach back to

the Naticn’s origins. The Ninth Circuit’s holding also

departs from this Court’s Fourth Amendment analysis

in border search cases, under which the minimal intru-

sion in the removal, disassembly, and reassembly of the

gas tank makes its search routine and permissible

without any quantum of particularized suspicion.

The court of appeals’ holding deprives Customs offi-

cers of an essential tool to protect against the smug-

gling of drugs, persons, weapons, and other contraband.

Gas tanks are commonly used to smuggle contraband

and persons into this country. In recent years, seizures

from gas tanks have accounted for 25% of all drug sei-

zures along the Southern California border. The

authority to search gas tanks without any level of

suspicion is critical to the government’s ability to deter

and detect smuggling and is an issue of substantial and

recurring practical significance to the protection of the

United States and its citizens. This Court’s review of

the Ninth Circuit’s unjustified restriction of that

authority is therefore warranted.

A. The Ninth Circuit’s Conclusion That A Gas Tank

Search Requires Reasonable Suspicion Is Inconsistent

With The Recognized Broad Power Of Customs

Officials To Conduct Searches At The Border

This Court has made clear that the government has

broad authority to conduct routine searches at the

border without any level of particularized suspicion.

United States v. Montoya de Hernandez, 473 U.S. 531,

538 (1985) (“[rloutine searches of the persons and

effects of entrants [at the border] are not subject to any

requirement of reasonable suspicion, probable cause, or

warrant”). The Court has also made clear, with respect

to non-routine searches, that the appropriate Fourth

Amendment rule depends on a balancing of the gov-

ernment’s “longstanding concern for the protection of

the integrity of the border” against the individual’s

limited privacy expectations at the border. Id. at 538-

540. In Montoyu de Hernandez, the Court held 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, considering

all the facts surrounding the traveler and her trip,

reasonably suspect that the traveler is smuggling con-

traband in her alimentary canal.” Id. at 541. The Court

also stated that it was “suggest[ing] no view on what

level of suspicion, if any, is required for nonroutine

border searches such as strip, body-cavity, or involun-

tary x-ray searches.” Id. at 541 n.4 (emphasis added).

In Molina-Tarazon, the Ninth Circuit held that the

removal and disassembly of a vehicle’s fuel tank con-

stitutes a “nonroutine” border search that requires rea-

sonable suspicion. 279 F.3d at 713. That holding is

fundamentally unsound. Under this Court’s decision in

Montoya de Hernandez, and in light of historical

practice and the practical need for thorough searches of

vehicles at the border, the search in this case was

routine. In holding otherwise, the Ninth Circuit’s

analysis understated the government’s interest and

overstated the private interests at stake. And even if

such a search were considered nonroutine within the

meaning of Montoya de Hernandez, a suspicionless gas

tank search is nonetheless reasonable under the Fourth

Amendment, given the balance between the govern-

ment’s overriding need to protect the border and the

modest intrusion on individual interests.

1. Removal and disassembly of a vehicle’s gas tank

at the border is a routine search

The scope of the government’s power to conduct

routine searches at the border without any level of

suspicion is informed by the historical power of customs

officials to conduct border searches, and the sovereign

necessity to control unwanted persons and effects as

they enter the Nation. The power of customs officials

to conduct searches at the border has an “impressive

historical pedigree.” United States v. Villamonte-Mar-

quez, 462 U.S. 579, 585 (1983). “Since the founding of

our Republic, Congress has granted the Executive ple-

nary authority to conduct routine searches and seizures

at the border, without probable cause or a warrant, in

order to regulate the collection of duties and to prevent

the introduction of contraband into this country.”

Montoya de Hernandez, 473 U.S. at 537.

The gas tank search in this case was authorized by

Section 1581(a), which states that custom officials “may

at any time go on board of any vessel or vehicle * * *

and examine, inspect, and search the vessel or vehicle

and every part thereof * * * and to this end may hail

and stop such vessel or vehicle, and use all necessary

force to compel compliance.” 19 U.S.C. 1581(a) (empha-

sis added). That statute derives from a statute passed

by the First Congress, the Act of Aug. 4, 1790, ch. 35,

§ 31, 1 Stat. 164, see Villamonte-Marquez, 462 U.S. at

584, which “authorized customs officers to board and

search vessels bound to the United States and to in-

spect their manifests, examine their cargoes, and pre-

vent any unlading while they were coming in.” Maul v.

United States, 274 U.S. 501, 505 (1927). Section 31 of

the 1790 Act permitted customs and revenue officers

“to go on board of ships or vessels * * * for the

purposes of * * * examining and searching the said

ships or vessels,” and provided that the officers “shall

have free access to the cabin, and every other part of a

ship or vessel” to seal and inark containers and pack-

ages that were to remain on the ship. § 31, 1 Stat. 164.

The Act also gave customs officials the power to place

inspectors on board ships “to examine the cargo or

contents” of ships entering the country, and authorized

the seizure and forfeiture of goods upon violation of the

Act. Act of Aug. 4, 1790, ch. 35, §§ 27, 28, 30, 50, 60, 70,

1 Stat. 163-164, 170, 174, 177. Because the 1790 Act was

passed by the same Congress that proposed the Fourth

Amendment, “it is clear that the members of that body

did not regard searches and seizures of this kind as

‘unreasonable,’ and they are not embraced within the

prohibition of the amendment.” Ramsey, 431 U.S. at

617 (quoting Boyd v. United States, 116 U.S. 616, 623

(1886) (emphases removed)).’

Neither Section 1581(a) nor its lineal ancestor re-

quires reasonable suspicion to search. Rather, the

statutory authority of customs officials to search vehi-

cles at the border is plenary and entitles officers to

3 In Ramsey, this Court observed that the earliest customs

statute, Act of July 31, 1789, ch. 5, 1 Stat. 29, was passed two

months before Congress proposed the Bill of Rights and contained

an “acknowledgment of plenary customs power” to conduct war-

rantless inspections of vessels. Ramsey, 431 U.S. at 616. The 1789

Act granted customs officials “full power and authority” to enter

and search “any ship or vessel, in which they shall have reason to

suspect any goods, wares or merchandise subject to duty shall be

concealed”; in contrast, searches of any “particular dwelling-house,

store, building, or other place” were authorized with a warrant

upon “cause to suspect” concealment of dutiable goods. § 24, 1

Stat. 43. That provision was carried forward in the Act of Aug. 4,

1790, ch. 35, §48, 1 Stat. 170, and is distinct from the separate

authority of customs to conduct suspicionless searches of articles

and effects when presented for entry at the border.

search, without suspicion, concealed and opaque com-

partments, where contraband may be secreted. The

authority thus includes, for example, luggage, trunks,

and glove compartments. “Contraband goods rarely

are strewn across the trunk or floor of a car; since by

their very nature such goods much be withheld from

public view, they rarely can be placed in an automobile

unless they are enclosed within some form of

container.” United States v. Ross, 456 U.S. 798, 820

(1982). Given those practical realities, “[dJuring virtu-

ally the entire history of our country—whether contra-

band was transported in a horse-drawn carriage, a 1921

roadster, or a modern automobile—it has been assumed

that a lawful search of a vehicle would include a search

of any container that might conceal the object of the

search.” Id. at 820 n.26. The historical power to con-

duct a routine border search of a vehicle similarly

extends to the vehicle’s gas tank, a large and opaque

container in which contraband may be stored.

The government’s vital interest in “protect[ing] the

Nation by stopping and examining persons entering

this country” supports the conclusion that a gas tank

search at border is routine. Montoya-Hernandez, 473

U.S. at 538. It requires no “extended demonstration” to

prove At jhat searches made at the border, pursuant to

the long-standing right of the sovereign to protect itself

by stopping and examining persons and property cross-

ing into this country, are reasonable simply by virtue of

the fact that they occur at the border.” Ramsey, 431

U.S. at 616; accord Almeida-Sanchez v. United States,

413 U.S. 266, 272 (1973) (“It is also without doubt that

[the power to exclude aliens] can be effectuated by rou-

tine inspections and searches of individuals or convey-

ances seeking to cross our borders.”). The Court has

long distinguished searches and seizures of vehicles

within this country, which require probable cause, from

border searches, which do not. As explained in Carroll

v. United States:

It would be intolerable and unreasonable if a pro-

hibition agent were authorized to stop every auto-

mobile on the chance of finding liquor and thus

subject all persons lawfully using the highways to

the inconvenience and indignity of such a search.

Travellers may be so stopped in crossing an inter-

national boundary because of national self protec-

tion reasonably requiring one entering the country

to identify himself as entitled to come in, and his

belongings as effects which may be lawfully brought

in.

267 U.S. 132, 153-154 (1925) (emphasis added).

“At the border, customs officials have more than

merely an investigative law enforcement role. They are

also charged, along with immigration officials, with

protecting this Nation from entrants who may bring

anything harmful into this country, whether that be

communicable diseases, narcotics, or explosives.” Mon-

toya de Hernandez, 473 U.S. at 544; accord App., infra,

lla (Declaration of Jayson P. Ahern, Director, Field

Operations, for the Southern California Customs Man-

agement Center) (The “primary mission at Customs is

ensulng border security, working on anti-terrorism

initiatives, and interdicting drugs, contraband, and

dangerous materials, while maintaining the smooth flow

of legitimate travel and trade.”).

That analysis applies with particular force to gas

tanks, which are large and commonly used containers

for smuggling contraband and persons across the bor-

der. See pp. 17-18, infra. Removal and disassembly of

the gas tank is a highly effective means to search for

contraband hidden within the tank. That process may

be the ly practicable alternative for the government

to determine whether the gas tank has been modified or

altered. Molina-Tarazon, 279 F.3d at 712 & nn.2-3

(noting the presence of manufacturer-installed anti-

siphoning valve in gas tank that blocked the use of

fiberoptic scope). The g e nment accordingly must

have wide latitude to remove and disassemble a

vehicle’s fuel tank to deter and detect illegal smuggling

into this country. That need is “heightened by the

veritable national crisis in law enforcement caused by

smuggling of illicit narcotics.” Montoya de Hernandez,

473 U.S. at 538. The government’s interest also

extends to the prevention of smuggling of aliens and of

bombs, explosives, or other implements of terrorism

that likewise may be concealed in gas tanks. Pp. 17-19,

infra. Inspection of gas tanks therefore falls within the

category of routine measures needed to conduct a

thorough inspection of a vehicle seeking entry at the

international border.

A search should be regarded as “nonroutine” only

when its level of intrusiveness equals or exceeds the

monitoring of a traveller’s bowel movements involved

in Montoya de Hernandez, 473 U.S. at 534-535, or the

other nonroutine searches of the person identified in

the Court’s decision, i.e., “strip, body-cavity, or involun-

tary x-ray searches,” id. at 541 n.4. See, e.g., United

States v. Nieves, 609 F.2d 642, 645-646 (2d Cir. 1979)

(holding that search of shoes that entailed removal of

shoes and drilling two small holes through the soles was

a routine search requiring no level of suspicion because

search did not approximate a strip search), cert. denied,

444 U.S. 1085 (1980). Those searches of the person are

far more intrusive than searches of a vessel or vehicle,

which have long been conducted without any particular-

ized level of suspicion.

The removal, disassembly, and reassembly of a gas

tank involves no extraordinary intrusion upon either

the individual or his vehicle. The actual disassembly of

respondent’s gas tank in this case took only 5 to 10

minutes. App., infra, 8a. The procedure also involved

no destruction of property and was reversible by

reassembling the tank. As the inspector who per-

formed the procedure in this case testified:

At most, my hammering off the bondo slightly

scratched and possibiy slightly dented the gas tank,

but the gas tank was just as workable as it was

before I removed the bondo. The gas tank was not

damaged as far as safety and workability were con-

cerned. This did damage the bondo, but new bondo

could easily have been applied. * * *

The force used to lower the gas tank was not

damaging. * * * Nothing was permanently altered

and nothing was damaged. I have witnessed this

procedure hundreds of times * *. It was easy to

disconnect the gas tank, and it would have been

easy to connect it back again. The gas tank could

have been reconnected without damaging it or the

vehicle.

Ibid. Although the tank here was not reconnected upon

discovery of the drugs, in cases where “no contraband is

discovered, it is Customs’ policy to reassemble and

reinstall any gas tanks that are disassembled during a

border search.” Id. at 13a (Declaration of Jayson P.

Ahern).

2. The court of appeals’ reasoning in concluding

that a gas tank search is nonroutine is flawed

In holding that the removal and disassembly of a fuel

tank was nonroutine, Molina-Tarazon erred by failing

to give any weight to the government’s interest in se-

curing the border by conducting suspicionless searches.

Rather, the court of appeals reasoned that At hree

aspects of the search here render it nonroutine: Force

was used to remove and disassemble the fuel tank; the

procedure involved some risk of harm; and someone

whose vehicle was subjected to such a search is likely to

feel a diminished sense of security.” 279 F.3d at 713.

As to the first factor, the court noted that a gas tank

search requires “the use of tools” and “the use of force”

in the removal of the tank from the vehicle. 279 F.3d at

714. As to the second factor, the court expressed its

view that “the procedure involved some risk of harm,”

because “[ajJn error in removing, disassembling and

then reassembling the portion of a motor vehicle that

contains a highly flammable and potentially explosive

substance like gasoline might well result in disastrous

consequences for the vehicle’s owner.” /d. at 713, 715.

As to the third factor, the court found the search “psy-

chologically intrusive,” because an individual subjected

to such a search would experience fear or a “diminished

sense of security” associated with driving a “potentially

unsafe” motor vehicle reassembled by a mechanic not

chosen by the individual. Id. at 713, 715, 716. The

court’s reliance on each of those factors was erroneous.

First, the only “[fjorce” involved in a gas tank search

is the non-destructive removal and disassembly of the

tank, and that procedure can easily be reversed upon

completion of the search without any effect on the

tank’s safety or operation. P. 13, supra. Moreover, as

the Ninth Circuit recognized, the use of force is not

“dispositive” in rendering a search nonroutine. Molina-

Tarazon, 279 F.3d at 714. “For example, if the lock is

jammed on a suitcase or its owner refuses to present a

key, [customs] agents have to employ some degree of

force to gain access to its interior.” Ibid.; 19 U.S.C.

1461. Second, the court of appeals’ perception of the

safety risks of the procedure is entirely speculative.

The court pointed to no reported instance of any me-

chanical error, much less an accident, associated with a

gas tank search. Nor is Customs aware of any such

instance. Gas tank searches, at least as a factual matter,

are routine, occurring several hundred times a year in

Southern California alone. P. 17, infra. Moreover,

Customs informs us that such services are performed

under contract by qualified mechanics who are em-

ployed as regular mechanics in Southern California by

other employers. See App., infra, 7a (Declaration of

Pesayco). Third, given the absence of any empirical

basis for concluding that gas tank searches pose a

danger to the driver of the vehicle or its passengers,

any fear occasioned by being informed of a gas tank

search would be unreasonable.

Accordingly, the rationale of the Ninth Circuit is

unsupported factually and legally. The quick, safe, and

nondestructive removal of a gas tank is not outside the

routine sorts of inspections that international travelers

should anticipate when seeking entry into this country.

3. A suspicionless gas tank search is reasonable

even ¶ such a search is not regarded as routine

Even assuming, arguendo, that Molina-Tarazon were

correct in characterizing a gas tank search as non-

routine, the court of appeals’ decision nonetheless erred

in assuming that any “search that goes beyond the

routine” requires reasonable suspicion. 279 F.3d at 712.

This Court in Montoya de Hernandez expressly stated

that its holding that customs officials need reasonable

suspicion to detain a traveler for monitoring her bowel

movements was limited to the circumstances of that

case; the Court accordingly suggested] no view on

what level of suspicion, if any, is required for non-

routine border searches such as strip, body-cavity, or

involuntary x-ray searches.” 473 U.S. at 541 n.4 (em-

phasis added). As the Court in Montoya de Hernandez

explained, the essential inquiry is one of reasonable-

ness, based on a balance of “the sovereign’s interests at

the border” against the rights of individuals who “pre-

sent] [themselves] at the border for admission.” 473

U.S. at 539; see Villamonte-Marquez, 462 U.S. at 588-

593 (conducting balancing test in upholding constitu-

tionality of the suspicionless boarding of vessels by

customs officials for document inspection).

Under such an inquiry, a suspicionless border search

of a vehicle’s gas tank that requires its removal and

disassembly is reasonable. The Court has recognized

that “not only is the expectation of privacy less at the

border than in the interior, the Fourth Amendment

balance between the interests of the Government and

the privacy right of the individual is also struck must

more favorably to the Government at the border.”

Montoya de Hernandez, 473 U.S. at 539-540 (citations

omitted). As discussed, a gas tank search imposes only

a minimal intrusion on the individual whose vehicle is

subject to the search at the border. Any interest of the

individual in avoiding that intrusion is outweighed by

the government’s paramount interest in protecting its

borders from unwanted items and effects that may be

concealed in gas tanks—an interest not even considered

by the court of appeals in Molina-Tarazon.

B. The Court of Appeals’ Decision Threatens To Impair

The Government's Ability To Protect The Border From

The Unwanted Entry Of Persons And Things

1. The Ninth Circuit’s imposition of a reasonable

suspicion requirement to conduct gas tank searches at

the border warrants this Court’s review. Because 19

U.S.C. 1581(a) authorizes such searches without requir-

ing reasonable suspicion, the court of appeals’ decision

effectively declares unconstitutional an important and

long-standing application of the government’s statutory

authority to enforce the country’s laws at the border.

The power to conduct suspicionless searches of gas

tanks and other vehicular compartments is critical to

the ability of customs officials to guard the country’s

border against smuggling. App., infra, 12a (Declaration

of Jayson P. Ahern). Over the last five and one-half

years, approximately 25% of all drug seizures at land

border crossings in the Southern California area arose

from attempts to smuggle drugs in a vehicle’s gas tank.

During that period, there were 4619 drug seizures from

gas tanks in the Southern California area. Ibid. Gas

tanks have been and continue to be the primary con-

cealment area used to smuggle and hide drugs in

vehicles.” Ibid.

Significantly, gas tanks represent a relatively size-

able compartment of a vehicle that criminals may mod-

ify or alter to smuggle not only large quantities of

drugs, but also persons. As the Assistant Director for

Inspectors for the San Diego District, Immigration and

Naturalization Service, Diane Hinckley, has explained,

“{iJnstances of persons smuggled in and around gas

tank compartments are not uncommon at the ports of

entry, averaging one approximately every ten days at

[the] San Ysidro and Otay Mesa [ports of entry].“ App.,

infra, 16a. Such smuggling poses significant health and

safety risks to the persons being smuggled. Id. at 16a-

17a. “Because these cases occur regularly, inspectors

often search gas tank compartment areas and other

compartment areas as part of a routine vehicle exami-

nation or in a random block blitz of vehicles.” Jd. at 16a.

2. By requiring reasonable suspicion to conduct

searches of one of the most commonly used vehicular

compartments for concealing smuggled items, the

Ninth Circuit’s decision in Molina-Tarazon threatens

to impair the ability of the United States to deter, de-

tect, and prevent the unlawful smuggling of unwar-

ranted items across our borders. A requirement of rea-

sonable suspicion would remove the significant deter-

rent effect of suspicionless searches and encourages

criminals to use fuel tanks as a means of smuggling

contraband. The power of customs officials to conduct

random searches “is an important deterrent to smug-

glers using gas tanks and other compartments to

smuggle contraband, because they would believe that

gas tanks and other compartments, as with other areas

in a vehicle, could be searched randomly and with no

level of suspicion.” App., infra, 12a-13a (Declaration of

Jayson P. Ahern). The Ninth Circuit’s decision poses a

serious risk of affirmatively increasing the level of gas

tank smuggling since would-be smugglers are likely to

hide contraband in gas tanks rather than other com-

partments of the vehicle that are subject to inspection

without any level of suspicion. That risk becomes even

more serious when coupled with the decrease in the

frequency of gas tank searches and seizures that would

inevitably result from a requirement of reasonable

suspicion:

To require reasonable suspicion for an INS inspec-

tor to search a gas tank compartment area * * *

will likely result in fewer gas tank compartment

areas; * * searches, additional persons being

successfully smuggled in gas tank compartment

areas * * and more attempts to use gas tank com-

partment area * * * for alien smuggling. Smug-

glers detect weak points readily and exploit them.

* * * Requiring reasonable suspicion to search gas

tank compartment areas * * * could lead to gas

tank compartments * * * becoming the preferred

choice for alien smuggling in the Southern District

of California.

Id. at 16a-17a (Declaration of Diane Hinckley). That

analysis applies with equal force not only to the

smuggling of narcotics, but also to the smuggling of

other hazardous substances into the United States.

Indeed, customs officials intercepted one would-be

terrorist, Ahmed Ressam, who entered the country

with a vehicle containing explosives hidden in the

trunk. In what became known as the “Millennium

Plot,” Ressam intended to detonate the explosives at

LAX airport as part of a terrorist attack. United States

v. Ressam, 221 F. Supp. 2d 1252, 1254 (W.D. Wash.

2002). The Ninth Circuit’s decision creates an apprecia-

ble risk of encouraging terrorists to use gas tanks as a

means to avoid the detection of explosives or other

hazardous substances crossing the country’s borders.“

* Courts have long recognized that the imposition of a require-

ment of particularized suspicion on customs searches under 19

U.S.C. 1581(a) would open a significant loophole in the ability of

federal agents to thwart smugglers. United States v. 146,157 Gal-

lons of Alcohol, 3 F. Supp. 450, 456 (D.N.J. 1933) (rejecting re-

quirement of a warrant or probable cause, because if such restric-

tions on searches of American vessels existed, “it will mean that

the smugglers * * * need only maintain an outward air of

respectability and legality to escape discovery, and it will surround

20 21

Customs officials face a formidable task in proteeting

our borders from the smuggling of unlawful items and CONCLUSION

aliens in vehicles. In fiscal year 2002, more than 90 The petition for a writ of certiorari should be

million vehicles carrying more than 250 million passen- granted.

gers entered the United States through the ports Respectfully submitted.

of entry along the Southwestern border. Customs &

Border Protection, Southwest Border Workload Statis- THEODORE B. OLSON

tics: Windows of Opportunity for Drug Smuggling 4 —v

(last modified Nov. 1, 2002) <http://www.cbp.gov/xp/ — —

cgov/ toolbox/about/accomplish/swborder_workload_ MICHAEL R. DREEBEN

stats.xml>. The risks to the Nation require that Deputy Solicitor General

Customs officials be able to exercise the full authority Lisa S. BLATT

conferred on them by Congress, consistent with the Assistant to the Solicitor

Constitution. Given the significant extent to which ce

smuggling occurs in gas tanks, the Ninth Circuit’s JUNE 2003

holding in Molina-Tarazon that customs officials may

not conduct such searches without reasonable suspicion

warrants this Court’s review.

them with and assure them of an immunity that was never in-

tended. * * * If such power [to conduct searches without prob-

able cause] does not rest in the properly constituted authorities

nothing can prevent a shipowner or charterer from storing dyna-

mite, high explosives, etc., aboard his boat * * *, safe from the

scrutiny of any officer charged by law to regulate such storage and

traffic.”).

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 02-50306

D.C. No. CR-02-00536-IEG

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

MANUEL FLORES-MONTANO, DEFENDANT-APPELLEE

[Filed Mar. 14, 2003]

ORDER

Before: CANBY, O’SCANNLAIN and T.G. NELSON,

Circuit Judges

A review of the record and appellant’s opening brief

indicates that the questions raised in this appeal are so

insubstantial as not to require further argument. See

United States v. Molina-Tarazon, 279 F.3d 709 (9th Cir.

2002); United States v. Hooton, 693 F.2d 857 (9th Cir.

1982) (per curiam).

Accordingly, we summarily affirm the district court’s

judgment.

AFFIRMED.

(la)

APPENDIX B

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF CALIFORNIA

Crim. Case No. 02cr0536-IEG

UNITED STATES OF AMERICA, PLAINTIFF

Vv.

MANUEL FLORES-MONTANO, DEFENDANT

[Filed June 20, 2002]

ORDEF SUPPRESSING EVIDENCE

On June 4, 2002, defendant Flores-Montano filed a

motion seeking to suppress the 37 kilograms of

marijuana seized from the gas tank of his vehicle,

contending that the border search that uncovered the

drugs was a “non-routine” border search requiring

reasonable suspicion and that there was no reasonable

suspicion. On June 10, 2002, the Government filed its

response in which it contended that the border search

was routine and that reasonable suspicion was not

required.

This matter was heard on June 17, 2002. Neither side

called any witnesses. Defendant Flores-Montano did

not introduce any evidence. The Government’s evi-

dence consisted of declarations and motion exhibits.

Since no declarations were filed by Flores-Montano and

no evidence introduced by him, the Court finds that the

facts set forth in the Government’s declarations and

motion exhibits are the facts in this case.

Relying on the recent case of United States v.

Molina-Tarazon, 279 F.3d 709 (9th Cir. 2002), the Court

holds that the search of the gas tank in this case was

“non-routine” and therefore reasonable suspicion was

required to justify the search. The Court further holds

that the Government has waived its right to rely on the

alternative basis of reasonable suspicion, and the Court

finds that, in this case, the Government has declined to

establish reasonable suspicion. Accordingly, defendant

Flores-Montano’s motion to suppress the drugs seized

from the gas tank is granted.

DATED: June 19,2002

% IRMA E. GONZALEZ

IRMA E. GONZALEZ

United States District Court

Judge

APPENDIX C

I, Visente Garcia, declare:

1. I am currently a senior border inspector for the

United States Customs Service, and I have been em-

ployed as a Customs border inspector since March of

1997.

2. I am familiar with and knowledgeable about the

matters set forth in this declaration.

3. On February 12, 2002, at approximately 4:00 p. m.,

I was working at pre-primary inspection at the Otay

Mesa Port of Entry. I approached a 1987 Ford Taurus

station wagon (Cal. license #4RXD937) to perform a

routine border inspection. I asked the driver, Manuel

Flores, routine border inspection questions, such as

where he was going, what was he doing in Mexico,

whose vehicle it was, what was his citizenship, etc.

When Manuel Flores was answering my questions, he

avoided eye contact. When he handed me his per-

manent resident card and his California license, his

hand was shaking.

4. After I tapped on the gas tank with my screw-

driver and noticed that the fuel tank sounded solid, and

I was informed that a narcotics detector dog had

“alerted” to the vehicle, I escorted Manuel Flores to the

security office. His vehicle was driven to the secondary

inspection lot to be more closely inspected.

5. Government motion exhibit l(a) is a picture of

defendant Manuel Flores, the driver of the Ford Taurus

station wagon (Cal. license #4RXD937) on February 12,

2002. Government motion exhibit 1(b) is the rear of the

Ford Taurus station wagon (Cal. license #4RXD937)

that I referred to secondary inspection on February 12,

2002, a few minutes after 4:00 p.m.

I declare under penalty of perjury that the foregoing

is true and correct.

DATED: June II, 2002.

/si/ VISENTE GARCIA

VISENTE GARCIA

Customer Border Inspector

Photographs Intentionally Omitted

APPENDIX D

I, Jovito Pesayco, declare:

1. J am currently a senior border inspector for the

United States Customs Service, and I have been em-

ployed as a Customs border inspector since January of

1997.

2. I am familiar with and knowledgeable about the

matters set forth in this declaration.

3. On February 12, 2002, at approximately 4:20 p.m.,

I conducted a routine border inspection of the 1987

Ford Taurus station wagon (Cal. license #4RXD937) at

the secondary inspection area of the Otay Mesa Port of

Entry. The rear of this vehicle is depicted in Gov-

ernment motion exhibit 1(b). I was informed that a

narcotics detector dog had “alerted” to the gas tank

area of the vehicle at pre-primary. I tapped the gas

tank and it sounded solid.

4. I then requested for a Customs contract mechanic

to come to the Otay Mesa Port of Entry so that the gas

tank could be searched. Within approximately 20 to 30

minutes, the mechanic arrived. The mechanic put the

vehicle on a lift and raised it up. The mechanic then

used a portable lift to lower the gas tank so it could be

looked at. To lower the gas tank, the mechanic first had

to loosen the straps and unscrew the bolts holding the

gas tank to the undercarriage of the vehicle. The me-

chanic also had to disconnect some hoses and electrical

connections. The mechanic used force and tools to do

this. I estimate that it took approximately 10 to 15

minutes for the gas tank to be lowered.

5. Once the gas tank was lowered, I saw bondo on

top of the gas tank. Bondo is a putty like substance that

hardens and is used to seal openings and adhere to

surfaces. I hammered off the bondo and this revealed

an access plate underneath. At most, my hammering

off the bondo slightly scratched and possibly slightly

dented the gas tank, but the gas tank was just as

workable as it was before I removed the bondo. The

gas tank was not damaged as far as safety and work-

ability were concerned. This did damage the bondo, but

new bondo could easily have been applied. I opened the

access plate and found packages wrapped in cellophane

and tape inside packages. I tested one of the packages

and it was marijuana. All of this took approximately 5

to 10 minutes.

6. The force used to lower the gas tank was not

damaging. The straps were undone, some bolts were

unscrewed, and some hoses were disconnected. Noth-

ing was permanently altered and nothing was damaged.

I have witnessed this procedure hundreds of times in

my five years of working as a border inspector. It was

easy to disconnect the gas tank, and it would have been

easy to connect it back again. The gas tank could have

been reconnected without damaging it or the vehicle.

7. Government motion exhibits 2(a-d) are pictures of

the gas tank of the Ford Taurus station wagon (Cal.

license #4RXD937) that I searched on February 12,

2002. 2(a) shows the gas tank before it was lowered.

2(b) shows the underneath of the vehicle after the gas

tank was lowered. 2(c) shows the gas tank after it was

lowered and the bondo on it. 2(d) shows the marijuana

bricks (approximately 37 kilograms) inside the gas tank.

8. I have reviewed the facts from the case of United

States v. Molina-Tarazon, 279 F.3d 709 (9th Cir. 2002).

The way the gas tank was lowered and disconnected

here is similar to how the gas tank was lowered and

disconnected in the Molina-Tarazon case.

I declare under penalty of perjury that the foregoing

is true and correct.

DATE: June 10, 2002.

/s/ JOVITO PESAYCO

JOVITO PESAYCO

Customer Border Inspector

10a

Photographs Intentionally Omitted

lla

APPENDIX E

DECLARATION OF JAYSON P. AHERN

I, Jayson P. Ahern, declare:

1. Currently, I am the Director, Field Operations,

for the Southern California Customs Management Cen-

ter. I am the principal field officer for Customs Field

Operations in Southern California and have been

assigned here since February of 2001. In this position, I

am responsible for all inspectional operations at the five

land border ports of entry in Southern California and at

the San Diego airport-seaport facilities. Our primary

mission at Customs is ensuring border security, work-

ing on anti-terrorism initiatives, and interdicting drugs,

contraband, and dangerous materials, while main-

taining the smooth flow of legitimate travel and trade.

2. I entered on duty as a United States Customs

Service Inspector in June 1977, and my previous work

history is as follows:

I served as an Inspector, Senior Inspector and Su-

pervisory Inspector for ten years in San Ysidro, Los

Angeles, and Miami. I served as a National Program

Manager in Customs Headquarters for Contraband

Enforcement Teams as Assistant District Director for

four years in Houston. I returned to headquarters as

the Director, Anti-Smuggling Division for four years.

This was followed by assignments as the Port Director

for Customs operations in Miami and Los Angeles for

four years, and two years, respectfully.

3. In my capacity as Director, Field Operations, I am

familiar with and knowledgeable of the matters set

forth in this declaration.

12a

4. Over the past few fiscal years (October 1 through

September 30), drug seizures at the Southern California

ports of entry have been as follows:

1 Total Number Gas Tank

FY 2002 (Oct-Mar) 1,602 478 (29.8%)

FY 2001 3,250 667 (20%)

FY 2000 3,252 754 (23%)

FY 1999 3,959 1,000 (25%)

FY 1998 4,053 1,114 (27%)

606 (23%)

a 1 4,619 (24.58%)

Over the past five and a half fiscal years, gas tank

drug seizures have accounted for approximately 25%

(24.58) of all vehicle drug seizures. Gas tanks have been

and continue to be the primary concealment area used

to smuggle and hide drugs in vehicles.

5. Because of the number of gas tank drug seizures,

searching gas tanks is routine and finding drugs

in them is routine. It is not unusual or infrequent.

Searching other compartments is routine and finding

drugs in them is routine, not unusual or infrequent.

6. For the Customs Service to be able to carry out

its primary function of interdicting drugs, contraband,

and harmful materials from entering the United States,

it is very important that Customs continues to have the

ability to conduct random and suspicionless searches for

drugs in gas tanks and other compartments of vehicles

at the border. This is an important deterrent to

smugglers using gas tanks and other compartments to

smuggle contraband, because they would believe that

gas tanks and other compartments, as with other areas

l3a

in a vehicle, could be searched randomly and with no

level of suspicion.

7. Gas tanks and compartment searches are some-

times performed because of confidential information.

Having to disclose this information as a matter of

course to prove “reasonable suspicion” would compro-

mise confidentiality and jeopardize informants.

8. Gas tank smuggling is already the most common

type of vehicle drug smuggling at the Southern Califor-

nia ports of entry. In my opinion, requiring reasonable

suspicion to search gas tanks would result in an in-

crease in gas tank smuggling of drugs and other

contraband, and other dangerous materials. Requiring

reasonable suspicion to search gas tanks would also

likely result in greater overall danger to the public,

because of the increased danger from more altered gas

tanks. Requiring reasonable suspicion for compartment

searches involving necessary damaging force would

result in an increase in compartment smuggling of

drugs, contraband, and other dangerous materials.

9. In cases where a border search at the California

ports of entry takes place and no contraband is dis-

covered, it is Customs’ policy to reassemble and rein-

stall any gas tanks that are disassembled during a

border search. Customs will inform the driver when-

ever a border search resulting in the disassembly of a

vehicle gas tank or property damage to a vehicle takes

place. Finally, if Customs causes any damage to prop-

erty during such a border search, Customs will provide

the necessary forms to the driver or owner so that a

monetary claim can be filed under applicable law.

l4a

I declare under penalty of perjury that the foregoing

is true and correct.

DATE: June 10, 2002.

Is) JAYSON P. AHERN

JAYSON P. AHERN

Customs Field Operations

Director

15a

APPENDIX F

DECLARATION OF DIANE HINCKLEY

1. Currently, I am the Assistant Director for Inspec-

tions, Immigration and Naturalization Service (INS),

San Diego District. I am the inspections manager for

the district’s six ports of entry, which include the ports

of San Ysidro, Otay Mesa, Tecate, Calexico, Calexico

East, and Andrade. I oversee the operation of the

ports, manage new initiatives, coordinate with INS re-

gional and headquarters components, and am the super-

visor of the INS port directors for these six ports.

2. I entered on duty with the INS on April 24, 1978,

as an inspector in El Paso, Texas. Later I became a

first-line supervisor in El Paso, Texas. Later I became

a first-line supervisor in El Paso, then INS regional

officer, then headquarters officer, and subsequently a

supervisor of the Headquarters Land Border Inspec-

tions staff. Afterwards, I transferred to the Calexico

Port of Entry as port director, and then became man-

ager of all the ports for the San Diego District.

3. In my capacity as Assistant District Director for

Inspections, I am familiar with and knowledgeable

about the matters set forth below.

4. In Inspections, we distinguish between smuggling

aliens in trunks and in other vehicle compartments,

reserving the term “compartments” for non-trunk

smuggling cases. One reason for this distinction is that

compartment cases are usually more dangerous for the

persons smuggled than trunk cases. Compartment

cases involving smuggling in and near gas tanks are

especially dangerous because often fumes remain in the

tanks, oxygen does not circulate well in these rebuilt or

16a

modified enclosed areas, movement by the occupant is

extremely restricted, and the person smuggled is

usually unable to extricate himself or herself from the

compartment.

5. Instances of persons smuggled in and around gas

tank compartments are not uncommon at the ports of

entry, averaging one approximately every ten days at

San Ysidro and Otay Mesa. Because these cases occur

regularly, inspectors often search gas tank compart-

ment areas and other compartment areas as part of a

routine vehicle examination or in a random block blitz

of vehicles.

6. To require reasonable suspicion for an INS in-

spector to search a gas tank compartment area, or to

use necessary damaging force to search a vehicle com-

partment, will likely result in fewer gas tank compart-

ment area and other compartment searches, additional

persons being successfully smuggled in gas tank

compartment areas and other compartments for alien

smuggling, and more attempts to use gas tank com-

partment area and other compartments for alien smug-

gling. Smugglers detect weak points readily and ex-

ploit them. Such a situation would increase the likeli-

hood of someone dying in a gas tank compartment area

or other compartment while being smuggled. Most of

the persons the INS pulls from gas tank compartment

areas and other compartments are nauseated, dehy-

drated, their skin is flushed, they are weak and some-

times unable to stand. We often give them immediate

first aid and send them to a hospital in an emergency

unit. The INS has pulled not only adults but children

and old people, sometimes two at a time, from gas tank

compartment areas and other compartments. Twin

compartments in or near a gas tank are not unusual. As

17a

part of the vehicle’s modification, gasoline is sometimes

siphoned into the motor from a plastic bottle in the

engine or from a specially built small tank in the trunk;

there are many variations in reconstructing the work-

ing gas tank. An established key to effective enforce-

ment for inspectors is random checking, coupled with

following up on suspicions. Random checking reduces

inspector fallibility and helps deter attempts to break

the law because everyone is subject to random selec-

tion. Requiring reasonable suspicion to search gas tank

compartment areas and other compartments could lead

to gas tank compartments and other compartments be-

coming the preferred choice for alien smuggling in the

Southern District of California.

7. The pictures from Government motion exhibit

4(a)(1-5) depict an illegal alien being found in the gas

tank compartment area of a vehicle being searched at

the San Ysidro Port of Entry in the past 18 months.

The pictures from Government motion exhibit 4(b)(1-5)

depict an illegal alien being found in the gas tank

compartment area of a vehicle being searched at the

San Ysidro Port of Entry in the past 18 months. The

pictures from Government motion exhibit 4(b)(1-5)

depict an illegal alien being found in the gas tank

compartment area of a vehicle being searched at the

San Ysidro Port of Entry in the past 18 months. The

pictures from Government motion exhibit 4(c)(1-7)

depict an illegal alien being found in the modified gas

tank of a vehicle being searched at the San Ysidro Port

of Entry.

18a

I declare under penalty of perjury that the foregoing

is true and correct.

DATED: June 4, 2002.

/s/) DIANE HINCKLEY

DIANE HINCKLEY

Assistant Director of

Inspection Director

Immigration and

Naturalization Service

19a

APPENDIX G

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 00-50171

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

JOSE MOLINA-TARAZON, DEFENDANT-APPELLANT

DEC. 7, 2000

[Filed Jan. 29, 2002]

OPINION

Before: D.W. NELSON, BRUNETTI and Kozinski,

Circuit Judges.

KOZINSKI, Circuit Judge.

Looking for contraband, customs agents removed and

dismantled Jose Molina-Tarazon’s fuel tank. We con-

sider whether this procedure is a “routine” border

search for which no suspicion whatsoever is required.

At approximately 3:30 one early morning, Molina

entered the United States from Mexico driving a pickup

truck. Molina was directed to secondary, where Cus-

toms Inspector Kevin Brown ordered a narcotics-

trained dog to sniff the truck. When the dog failed to

20a

alert, Brown inspected the truck’s undercarriage with

an autocreeper.' Brown then turned his attention on

the gas tank.

Brown first tried to look into the tank with a fiber-

optic scope,’ but was stopped by an anti-siphoning

valve.’ He then summoned an off-site contracting me-

chanic, who arrived fifteen or twenty minutes later.

The mechanic hoisted the truck onto a lift and removed

several bolts and straps that connected the tank to the

truck, disengaging electrical connections and hoses in

the process. The mechanic then removed the sensing

unit, revealing thirty-one packages of marijuana inside

the tank.

Charged with violating 21 U.S.C. §§ 841(a)(1), 951

and 960, Molina challenged the search on the grounds

that the government lacked reasonable suspicion. The

government argued that it needed no suspicion because

the search was routine. The district court held that,

even if the search was not routine, the officers had rea-

sonable suspicion based on unnatural mud patterns

they observed during their visual inspections of the gas

tank. Molina entered a conditional guilty plea and now

appeals the district court’s suppression ruling.

An autocreeper is a mirror attached to the end of a long pole

with which one can view the undercarriage of a vehicle.

2 Brown testified that a fiberoptic scope is similar to a telescope

with six feet of light-carrying cable that the operator can feed into

the fill neck.

3 A manufacturer-installed device consisting of a ball that pre-

vents insertion of a solid object into the gas tank.

21a

While the Fourth Amendment generally prohibits

warrantless searches without probable cause, it is sub-

ject to a few narrow and well-delineated exceptions.

One such exception is the border search. Carroll v.

United States, 267 U.S. 132, 154, 45 S. Ct. 280, 69 L.Ed.

543 (1925). Authorized by the same Congress that pro-

posed the Fourth Amendment, the border search has a

long history of judicial and public acceptance. See 4

Wayne R. LaFave, Search and Seizure § 10.5(a), at 531,

535 (3d ed. 1996).* As the Supreme Court has observed,

“(bjorder searches . . . [are] considered to be rea-

sonable’ by the single fact that the person or item in

question hals] entered into our country from outside.”

United States v. Ramsey, 431 U.S. 606, 619, 97 S. Ct.

1972, 52 L. Ed. 2d 617 (1977). Pursuant to this excep-

tion, routine searches of persons and their effects enter-

ing the country may be conducted without any suspi-

cion whatsoever. United States v. Montoya de Hernan-

dez, 473 U.S. 531, 537-38, 105 S. Ct. 3304, 87 L. Ed. 2d

381 (1985).

But border searches are not exempt from the

irreducible constitutional requirement of reasonable-

ness. The border search exception therefore authorizes

only routine searches; it does not authorize any kind of

The border search exception is codified at 19 U.S.C. § 1581(a),

which provides that “Any officer of the customs may at any time

go on board of any vessel or vehicle at any place in the United

States or at any other authorized place, without as well as

within his district, and examine the manifest and other documents

and papers, and examine, inspect, and search the vessel or vehicle

and every part thereof and any person, trunk, package, or cargo on

board, and to this end may hail and stop such vessel or vehicle, and

use all necessary force to compel compliance.”

22a

search in any manner whatsoever. In order to conduct

a search that goes beyond the routine, an inspector

must have a reasonable suspicion that the person to be

searched may be carrying contraband. United States v.

Ramos-Saenz, 36 F.3d 59, 61 (9th Cir. 1994).

While we have never defined the limits of a routine

search, we have observed that the critical factor is the

degree of intrusiveness it poses. Id. at 61. This is

consistent with the approach of several other circuits,

which have held that the distinction between “routine”

and “nonroutine” turns on the level of intrusiveness.

See, e.g., United States v. Uribe-Galindo, 990 F.2d 522,

525-26 (10th Cir.1993); United States v. Braks, 842 F. 2d

509, 511-12 (ist Cir. 1988). Our case law recognizes four

categories of searches as being so intrusive as to be

clearly nonroutine: Body cavity, strip, pat down and in-

voluntary x-ray searches. See Montoya de Hernandez,

473 U.S. at 541 n.4, 105 S. Ct. 3304; United States v.

Vance, 62 F.3d 1152, 1156 (9th Cir. 1995). By contrast,

we have held that searches of handbags, luggage, shoes,

pockets and the passenger compartments of cars are

clearly routine. See Montoya de Hernandez, 473 U.S.

at 538, 105 S. Ct. 3304; Ramos-Saenz, 36 F.3d at 61-62;

United States v. Sandoval Vargas, 854 F.2d 1132, 1134

(9th Cir. 1988); United States v. Palmer, 575 F. 2d 721,

723 (9th Cir. 1978).

In Ramos-Saenz we observed that a border search

goes beyond the routine “only when it reaches the

degree of intrusiveness present in a strip search or

body cavity search.” Ramos-Saenz, 36 F. 3d at 61. The

government seizes on this phrase to argue that a border

search is always routine unless it involves a search of

the person; at oral argument government counsel went

so far as to assert that “the border search authority

23a

gives the government the right to dismantle a car with

no reasonable suspicion whatsoever.” Were we to

accept this argument, it would mean that customs

agents at the border could, acting on no suspicion, order

a car disassembled down to the last o-ring, and hand it

back to the owner in a large box. We think not. We

hold, rather, that some searches of inanimate objects

can be so intrusive as to be considered nonroutine.

Determining when an inanimate object search be-

comes as intrusive as a body search is tricky. Object

searches certainly do not cause the same degree of per-

sonal indignity as searches of the human body. But

causing indignity is just one way a search can be intru-

sive; there are others. We write on a relatively clean

slate because we have never identified what factors

render the search of an object nonroutine. However

our analysis is informed by factors we consider in the

border search context, as well as those from our general

Fourth Amendment jurisprudence.

Three aspects of the search here render it non-

routine: Force was used to remove and disassemble the

fuel tank; the procedure involved some risk of harm;

and someone whose vehicle was subjected to such a

search is likely to feel a diminished sense of security.”

A. Use of Force

Courts that have considered searches of inanimate

objects in the border context have found the use of

force to be a critical factor in assessing intrusiveness.

These happen to be the factors relevant in our case. We do

not rule out the possibility that other factors, such as protracted

delay in completing the search, may render a search nonroutine.

24a

See United States v. Rivas, 157 F.3d 364, 367-68 (5th

Cir. 1998); United States v. Robles, 45 F.3d 1, 5 (Ist Cir.

1995). We have noted, albeit not in the border search

context, that force is a factor that bears on the

intrusiveness of the search. United States v. Perez, 37

F.3d 510, 516 (9th Cir. 1994) (observing that sniff search

of a car is unintrusive because it involves no forcing of

closed containers or sealed areas). Searches of inani-

mate objects that courts have held to be routine

generally have not involved the use of force. See e.g.,

United States v. Uribe-Galindo, 990 F.2d 522 (9th Cir.

1993).

While force is a factor in assessing a search’s intru-

siveness, it is not dispositive. For example, if the lock is

jammed on a suitcase or its owner refuses to present a

key, agents have to employ some degree of force to

gain access to its interior. But this fact alone does not

render a search overly intrusive. Conversely, other

types of searches for which force is not required have

been deemed overly intrusive: No degree of force is

required to effect an x-ray search or to issue an order to

disrobe, both of which we have consistently found to be

so intrusive as to be nonroutine. United States v. Ek,

676 F.2d 379, 382 (9th Cir. 1982). While not dispositive,

the use of force in conducting a search will weigh

against finding the search routine.

What constitutes the use of force depends on the cir-

cumstances. Certainly, if the search requires breaking,

drilling into or permanently altering a portion of the

item being searched, that is a use of force. Similarly, if

the search involves the use of tools and the application

of physical force to those tools, this will also amount to

the use of force.

25a

The search of Molina’s truck required the use of tools.

The mechanic hoisted the truck onto a lift, loosened the

straps holding the tank to the chassis, disconnected the

filler and the sending hoses, detached electrical connec-

tions, disengaged the fill neck and unscrewed the bolts.

He then detached the tank itself by unscrewing the

pump unit and removing the pressed in “bushing”

which held the tank to the truck. All of those actions

required the use of force and in their totality they raise

the inference that this was not a routine search.

B. Danger

The Supreme Court has held that if a search poses a

danger to the subject, this is a significant factor bearing

on whether the search is reasonable under the Fourth

Amendment. In Winston v. Lee, 470 U.S. 753, 105

8. Ct. 1611, 84 L. Ed. 2d 662 (1985), the Court con-

sidered whether forcing a suspect to undergo minor

surgery to remove a bullet was such a serious intrusion

as to be unreasonable. In holding that it was, the Court

noted that a crucial factor in analyzing the magnitude of

a search’s intrusiveness “is the extent to which the pro-

cedure may threaten the safety or health of the indivi-

dual. Id. at 761, 105 S. Ct. 1611 (citing Schmerber v.

California, 384 U.S. 757, 771, 86 S. Ct. 1826, 16 L. Ed.

2d 908 (1966)) (emphasis added). The Court reached

this conclusion despite a dispute over how much dan-

ger, if any, the surgery would actually pose.

In Schmerber, the Court held that forcin

, g a suspect

to have his blood drawn was insufficiently — to

6 In Winston, there was testimon

there y that the surgery would

require only a small incision and could be performed under local, as

opposed to general, anesthesia. 470 U.S. 753, 763-64 & nn.7-8 105

S. Ct. 1611, 84 L. Ed. 2d 662 (1985). ö

26a

overcome society’s interest in preserving evidence of

drunk driving. In reaching this conclusion, the Court

focused on three factors: First, the procedure involved

no risk, trauma or pain. Id. at 771, 86 S. Ct. 1826.

Second, a physician—a licensed professional—per-

formed the procedure in a hospital environment, ac-

cording to accepted medical practices. Jd. Third,

having blood drawn is “routine in our everyday li{ves]”

and a requisite for many entering particular schools,

professions and institutions (and therefore, presumably,

did not involve a significant degree of risk). Id. at 771

n. 13, 86 S. Ct. 1826 (quoting Breithaupt v. Abram, 352

U. S. 432, 436, 77 S. Ct. 408, 1 L. Ed. 2d 448 (1957)).

In assessing the intrusiveness of border searches, we

have also considered the dangerousness of the search.

In Ek, concerns over the danger and potential long-

term health effects posed by an x-ray search weighed

heavily in our conclusion that x-ray searches were more

intrusive than strip searches. We observed that being

subjected to an x-ray search, although not as humili-

ating as being instructed to disrobe, is nonetheless

more intrusive because of its potentially dangerous

health consequences. Id. at 382. Notably, we came to

this conclusion even though the record was silent on the

danger or harmful effects associated with x-ray

searches.

The border search jurisprudence of other circuits

supports the view that the relative safety of various

search methods is an important factor in the intru-

siveness analysis. See United States v. Johnson, 991

F.2d 1287, 1292 (7th Cir. 1993) (noting, as a factor in

categorizing the search as routine, that it involved no

harm); Braks, 842 F.2d at 512 (an important factor in

determining whether a search is routine is “whether

27a

the type of search exposes the suspect to pain or dan-

ger”); United States v. Vega-Barvo, 729 F.2d 1341, 1345

(11th Cir. 1984) (risk of injury is a factor entitled to

independent consideration); United States v. Sandler,

644 F. 2d 1163, 1167 (5th Cir. 1981) (search at issue pre-

sented a relatively low degree of intrusiveness because

it was, inter alia, not dangerous).

The search in this case presents a similar, and

arguably more immediate, risk of danger than the x-ray

in Ek.’ An error in removing, disassembling and then

reassembling the portion of a motor vehicle that con-

tains a highly flammable and potentially explosive

substance like gasoline might well result in disastrous

consequences for the vehicle’s owner. For example, the

mechanic charged with reattaching the hoses and

electrical connections might fail to secure them prop-

erly, leading to a fuel leak that causes a fire or ex-

plosion. Or, he might not reattach the straps securing

the tank to the body of the truck tightly enough,

causing the tank to shake loose.“ These examples do

not represent an exhaustive list of the dangers

associated with this type of search. Yet they provide

hy While the record does not address the danger associated with

driving a vehicle after certain critical internal parts have been

dismantled and reattached, the point is not one that requires much

documentation. The government seems to acknowledge that dif-

ferent searches implicate different kinds of risks: In urging that

the use of the fiberoptic scope was part of a routine search, for

example, the government’s brief noted that such devices allow for

the inspection of cars without damaging them.

These risks need not come to fruition in every case. It is

sufficient that, if the search is repeated, the risks will materialize

on occasion, such as when the mechanic employed to do the work is

careless or unskilled.

28a

ample support for the view that the search in this case

created a risk of harm.

C. Fear

A third factor we consider is whether the search is

psychologically intrusive. People’s minds are as vul-

nerable to intrusion as their physical possessions. As

Justice Brandeis observed in Olmstead v. United

States, 277 U.S. 438, 48 S. Ct. 564, 72 L.Ed. 944 (1928)

The makers of our Constitution. recognized the

significance of man’s spiritual nature, of his feelings

and of his intellect. They 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.

Id. at 478, 48 S. Ct. 564 (Brandeis, J., dissenting).

The imposition of fear is a type of psychological intru-

sion. The Supreme Court has therefore recognized that

the level of fear a particular search is likely to engender

is a significant factor in evaluating its intrusiveness. In

United States v. Ortiz, 422 U.S. 891, 95 S. Ct. 2585, 45

L. Ed. 2d 623 (1975), the Court concluded that fixed

checkpoints are “far less intrusive” than roving patrols,

observing that the latter are more apt to “frighten{ ] or

annoyl |” motorists. Id. at 894-95, 95 S. Ct. 2585. The

Court reaffirmed its preference for fixed checkpoints in

United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.

Ct. 3074, 49 L. Ed. 2d 1116 (1976), noting that, in com-

parison to roving searches, “the subjective intrusion

29a

—the generating of concern or even fright on the part

of lawful travelers—is appreciably less.” Id. at 558, 96

S. Ct. 3074. We read these cases for the proposition

that government intrusions into the mind—specifically

those that would cause fear or apprehension in a rea-

sonable person—are no less deserving of Fourth

Amendment scrutiny than intrusions that are physical

in nature.

We conclude that the search conducted here would

make a reasonable driver—one aware that a mechanic

working for the government dismantled and reas-

sembled a component critical to his vehicle’s safe

operation—apprehensive about getting back into his

vehicle and continuing on his way. The driver’s appre-

hension would certainly be heightened if he faced the

prospect of driving a long distance at high speed. The

diminished sense of personal security associated with

driving a potentially unsafe one-and-a-half ton auto-

mobile is exactly the type of unwarranted psychological

intrusion against which the Fourth Amendment was

meant to protect.

The type of search conducted here could contribute

to a driver’s apprehension in various ways. First, the

work was performed by a government contractor

whose qualifications, reputation and expertise are un-

known to the vehicle’s owner, rather than by a me-

chanic the owner knows and trusts. The owner does

not know whether the contractor is licensed to perform

the work or what standards, if any, were used in

selecting him. The owner is unable to choose a

mechanic in whom he does have confidence.

; Second, the driver might doubt the mechanic’s incen-

tive to take adequate precautions in dismantling and

reassembling portions of the vehicle, considering that

30a

the mechanic’s objectives are materially different in the

border search context than in a traditional market

setting. The mechanic lacks the independent incentive

to undertake the procedures with the caution, skill and

precision he might exercise if the owner were a repeat

customer; those having their vehicles searched at the

border are unlikely to return for additional work in the

future. The mechanic’s concern is to remove and dis-

mantle parts quickly, so that the agents can search for

contraband; if they come up emptyhanded, the me-

chanic’s primary concern will be to finish the job

promptly, not necessarily to reassemble the vehicle

with the greatest care.

Finally, a search as extensive as the one performed

on Molina’s truck—one involving the dismantling and

reassembling of components critical to the vehicle’s

functioning and safe operation—leaves the normal

driver unable to confirm whether everything is re-

stored to its original state. Absent special expertise,

the driver has no way of verifying the correct reas-

sembly of the fuel tank. If the pump unit is returned to

its original position within the tank, and the tank is

then reconnected via straps, bolts and hoses, the driver

has no way to tell whether the tank and related mecha-

nisms are in a safe working condition. In contrast to

less intrusive techniques that employ minimal force or

allow for ready inspection by the layperson, where the

search includes the dismantling of a mechanical part in

the motor vehicle, the driver has little independent

opportunity to allay his fear that the vehicle may leave

him stranded on the freeway—or far worse.

31a

The use of force required to effect the tank’s removal,

coupled with the potential danger associated with

driving a vehicle after a component vital to its proper

functioning is dismantled and reassembled, and the con-

sequent diminution in the driver’s sense of personal

security, results in a significant degree of intrusiveness.

We conclude that the removal, disassembly and search

of Molina’s fuel tank was not a routine search.

That the search was not routine does not necessarily

render it unlawful. The search would still have been

lawful if the officers conducted it based on a reasonable

suspicion that Molina might have been concealing con-

traband. See United States v. Teague, 18 F.3d 807, 812-

13 (9th Cir. 1994). We therefore consider whether the

customs agents had reasonable suspicion to justify the

search.

At the primary inspection area, Customs Inspector

George Volz took a look around the truck for signs of

smuggling. Looking through the fender well, Volz ob-

served an unusual distribution of mud in the areas of

the truck’s under-carriage surrounding the gas tank:

While there was a lot of mud on top of the tank’s sen-

sing unit, the rest of the unit was entirely clean. Volz

discovered an abundance of mud lodged in out-of-the-

way spaces behind the bolts that attached the tank to

the undercarriage of the truck. The hoses connecting

the tank to the truck also had splattered mud. Volz

found that the mud did not appear to have been

“splattered” naturally, but instead appeared to have

been sprayed on with a paint gun or pressure hose.’

0 Inspectors Volz and Brown both testified that they had ex-

tensive on-the-job training in the different types of mud appli-

32a

The unnatural looking distribution and application of

the mud suggested to Volz that someone had recently

tampered with the tank. Inspector Volz also observed

that the gas hoses looked freshly replaced—another

factor that, in his experience, suggested recent removal

of the tank. Based on these observations, he directed

Molina to secondary. There, Inspector Brown observed

the same unnatural mud distribution and application—

in particular the fact that the tank’s sensing unit was

too clean in relation to the rest of the tank—and came

to the same conclusion as Volz. He therefore examined

the undercarriage of the truck and observed patterns of

mud and clamp marks that indicated the sensing and

pump units had recently been removed. These observa-

tions provided reasonable suspicion to justify the

dismantling of Molina’s fuel tank.

Accordingly, the search was lawful and the informa-

tion gained from it could lawfully be used to prosecute

Molina. The district court did not err in denying the

suppression motion.

AFFIRMED.

BRUNETTI, Circuit Judge, concurring in the result:

FACTS

On September 10, 1999, at approximately 3:36 a.m.,

Jose Molina-Tarazon entered the Calexico West Port of

Entry. He was the sole occupant of a 1991 Dodge

Dakota pickup truck. He was met by U.S. Customs

cation techniques employed by contraband smugglers, and that

when mud is unnaturally applied, it tends to run before drying.

Agent Volz also testified that unnaturally applied mud lacks the

“fine white mist” characteristic of mud that splatters on vehicles

naturally.

33a

Inspector George Volz. Inspector Volz initially became

suspicious because Molina Tarazon was wearing a

brand new hat perched on top of his head “like he was

afraid to mess up his hair”, and also wearing black horn-

rimmed glasses. Inspector Volz explained that prior

experience working the pedestrian lanes, where mainly

farm-workers enter, led him to suspect Molina Tarazon

was impersonating a U.S. citizen. This led Ins

Volz to doubt Molina-Tarazon’s declaration that —

a United States citizen, and to further inspect the

vehicle for signs of smuggling.

After an inspection of the gas tank, Inspector Volz’

suspicions were further heightened by the fact that the

mud appeared to be artificially applied, rather than ac-

cumulated through normal wear. Specifically, although

the top of the tank was dirty and there was mud behind

the bolts that held the tank, the sensing unit was not

dirty. Inspector Volz further noted that the gas tank

hoses appeared new. At this point, Volz referred

Molina-Tarazon to further inspection.

At the secondary inspection area, Molina-Tarazon

was met by U.S. Customs Inspector Kevin Brown.

Molina-Tarazon stated that the truck belonged to his

wife. The truck was then inspected by a canine unit

which failed to alert for drugs. Inspector Brown used a

mirror to inspect the truck’s gas tank. Brown also tried

to insert a fiberoptic scope into the gas tank, but was

unsuccessful because of a blockage. Brown then

crawled underneath the tank to conduct a physical

inspection. He observed what he believed to be signs

that the “sending unit and/or pump unit had been off

recently.” Brown noted that the mud on the gas tank

did not appear consistent with the bottom chassis of the

truck and that the pump unit was basically clean. This

34a

entire inspection lasted 10-12 minutes. At that point,

Brown called a local contracting mechanic to come and

remove the gas tank on site. It took approximately 15-

20 minutes for the mechanic to arrive.

According to Inspector Brown, the removal of the

gas tank involves: putting the truck on a mechanical lift,

disconnecting the filler hose, the hose going to the

engine and the corresponding electrical connections,

and loosening the straps that hold the tank to the

chassis. Neither a torch nor hacksaw was used, and the

gas tank can be reattached without causing any

damage. It took approximately 10-15 minutes to remove

the gas tank. Drugs were ultimately recovered from the

gas tank.

SPECIAL CONCURRENCE

I concur in the majority’s opinion to the extent that

vehicular border searches could conceivably be con-

ducted in a manner so intrusive as to render the search

non-routine. When such searches occur, a reasonable

suspicion on the part of law enforcement is required. I

also concur in the result as I believe the Customs In-

spectors had a reasonable suspicion to justify this

search no matter what its category.

I am unable, however, to concur in the analysis in

Part III of the opinion because I believe it goes too far.

There is a very real distinction between the removal or

disassembly of part of an automobile in the ordinary

course of inspection, and the application of destructive

force in order to facilitate inspection. See United States

v. Carreon, 872 F.2d 1436 (10th Cir. 1989) (drilling into

camper required reasonable suspicion), United States v.

35a

Rivas, 157 F.3d 364 (5th Cir. 1998) (drilling into body of

trailer was not routine search and required reasonable

suspicion); United States v. Robles, 45 F.3d 1 (1st Cir.

1995) (drilling into machine part required reasonable

suspicion).

The search at issue here is an example of the simple

disassembly of a gas tank in the ordinary course of

inspection. As the district court pointed out:

The intrusion here was not t i

ete eee great. Nothing was

were unscrewed, and the tank was lowered. There

wasn’t any connection from the tank to the vehicle

that was broken, it was just straps that held it in

place, so it could be restrapped back. It is not like it

is bonded or glassed or welded in place where they

had to break the welds. Two hoses were removed

the filler hose and the sending hose, and the tank

was lowered and the cap was unscrewed, and there

was the marijuana.

— * was conducted in a matter of 10-15

minutes with no permanent alteration or resultin

harm to Molina-Tarazon’s vehicle. 4

The majority’s opinion seizes on the use of tools and

employment of a mechanic to “raise the inference that

this was not a routine search.” Such a finding labels

any routine dismantlement by a mechanic, from the

removal of fender to bumper, a non-routine inspection.

As discussed above, the use of force that somehow

alters or damages the vehicle is far more intrusive than

the simple disassembly and reassembly that occurred

here. The majority opinion also focuses on the inherent

psychological fear that stems from the possibility that a

mechanic not of the detainee’s choosing may fail to re-

36a

assemble the vehicle in a safe and reliable manner. The

risk of negligent reassembly or replacement may create

fear that would never be overcome in any circum-

stances, including the simplest dismantlement.

For these reasons, I cannot concur in the analysis in

Part III of this opinion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.