Amicus Curiae Brief — United States v. Flores-Montano

~~ FILED

No. 02-1794 JAN 12 2004

|_ OFFICE OF THE CLERK

In The

Supreme Court of the Gnited States

¢

UNITED STATES OF AMERICA,

Petitioner,

V.

MANUEL FLORES-MONTANO,

Respondent.

¢

On Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

BRIEF AMICUS CURIAE OF THE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS IN SUPPORT OF RESPONDENT

¢

JOHN WESLEY HALL, JR.* DAVID M. SIEGEL

1311 Broadway NEW ENGLAND SCHOOL OF LAW

Little Rock, AR 72202-4843 154 Stuart Street

(501) 371-9131 Boston, MA 02116

(617) 422-7270

*Counsel of Record LISA B. KEMLER

ZWERLING & KEMLER, PC.

108 N. Alfred St.

Date: January 12, 2004 Alexandria, VA 22314

(703) 684-8000

————$—$[$[—[—[—_—_ _ _ _ _[_ $$ $ $ S$ S S[ EEE SaaS

- COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether, under the Fourth Amendment to the United

States Constitution, customs officers at the international

border must have reasonable suspicion to remove, disas-

semble, and search a vehicle’s fuel tank for contraband;

i.e., is removing and disassembling a vehicle gas tank a

“routine search” at the border that does not require rea-

sonable suspicion?

ii

TABLE OF CONTENTS

Page

tg EN i

TEES CF CemRGRRD ..0.0000000ssssecrcesessescsnsenmnnneuannenennnannnnan il

Tebbte Of AmtneGthhG. ..00001000:0qsceestsesssesesnnnueee iv

Interest of Amstel Caste ..cccccccscssssomseessetenseleanniaae 1

Summary Of the Argument, ......000cccscccoscscococssccsssscsenssseses 2

ASEOMBORG, 0000000000000cccnnscoseusencensenssienssanniiiennnnnnnnnnnn 4

THE SEARCH OF A VEHICLE GAS TANK BY

REMOVING IT IS NOT A “ROUTINE BORDER

SEARCH” WHICH CAN OCCUR WITHOUT REA-

BONABLES GU BIE, ccccecsocceccsecnsusssnnnsanaunnne

A. Tuptretnetei..ccccccoccccoccccoceeeneeennneeeeeee

B. The Common Law and historical basis for

Te

1. Application of the Common Law and “Rea-

RE

2. Nothing in the Common Law sanctions

this kind of “breaking” or intensive search

WIEEROUS GURIEGEGID 0000cccccsscesscensniennmenianennnanee

3. Nothing in the first customs acts sanctions

this kind of breaking .................cccseseseeeeeeeees

Routine v. Non-Routine and Fourth Amend-

ment RORSSRRRERRSID cccecccscssesiasenmnaeee

1. FERRI ORIORIG IR ccccccccccccscesenseieneee

2. Gas Tank Searches Are Not a Minimal In-

trusion and, Therefore, Not “Routine” —

The Work Is Inherently Dangerous If Not

Done Safely or Correctly .................cc00eeeeee0s

———— ee ee

TABLE OF CONTENTS -— Continued

Page

Technological Advances Make It Far Eas-

ier to Determine Reasonable Suspicion of

Smuggling, and This Must Be Factored

Into a Reasonableness Analysis...............-+- 21

The Ready Availability of Far Less Intru-

sive Measures Makes This Search Unrea-

Ee TT 24

a cresmrnnunnsenneseneseses 27

iv

TABLE OF AUTHORITIES

Page

CASES:

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

ee TT 5

Baker v. Employers’ Fire Ins. Co., 201 So.2d 349

es FI, Te SU ecerertcnstitetntnceieimntpnnteennnianersmrtnescess 13

Boyd v. United States, 116 U.S. 616 (1886)..........0000000000000. 5

Cady v. Dombrowski, 413 U.S. 433 (1973) ...........ccccccceeeeee 24

California v. Hodari D., 499 U.S. 621 (1991) .............cceceee 7

Carroll v. United States, 267 U.S. 132 (1925) ..........0...... 5,7

Charter Oak Fire Ins. Co. v. Trio Realty Co., 2002

CT 13

Delaware v. Prouse, 440 U.S. 648 (1979) 00.0... ccccceceeeeeeeeee 12

Florida v. Jimeno, 500 U.S. 248 (1991) ........cccccecceeeeeeeeeees 12

Glenns Falls Ins. Co. v. Danville Motors, Inc., 333

EE CE EE Steel icnnctnaternnctrianimnpsinanmmntnieneanianeies 13

Griffin v. Wisconsin, 483 U.S. 873 (1987) .........ccccccccceeeeeeee 12

Illinois v. Lafayette, 462 U.S. 640 (1983).........ccccccccceeeeeeees 24

Indiana Consol. Ins. Co. v. Mathew, 402 N.E.2d

I IS Gil lccenstcicteiintsendniiateniemmatineesstneneniiiiils 13

Johnson v. United States, 333 U.S. 10 (1948) .............c0000- 21

Kyllo v. United States, 533 U.S. 27 (2001).............000000. 7,21

Vv

TABLE OF AUTHORITIES - Continued

Page

Meridian Mut. Ins. Co. v. Parkey, 769 N.E.2d 1179

Cand, Bare, BGI ceccccxccscccecesecnenescsscccenssscesssnenagenennesesnsnsonns 13

Michigan Dept. of State Police v. Sitz, 496 U.S. 444

ee 24

New Jersey v. T.L.O., 469 U.S. 325 (1985)...........ccccceeeeeeeees 7

Payton v. New York, 445 U.S. 573 (1980) ..........cccccceeeeeeeeees 7

People v. Moya, 2002 WL 31031780 (Cal.App. 4th

Dbst. BOGE) (emmPeAT AGED. .ccccccccccccscvecscccsccscosssssssecssscscssses 23

Robinette v. Ohio, 519 U.S. 33 (1996) ..............cccceceeeeeeeeeees 12

Starks Food Markets v. El Dorado Refining Co., 156

Kan. 577, 134 P.2d 1102 (1943)...................csssceseseeseeeeees 13

State ex rel. Cox v. Sims, 128 W.Va. 482, 77 S.E.2d

|: 13

State v. Garcia, 2003 WL 22247450 (Tenn. Oct. 1,

TET esssorreemiensrenseanarntesiensiinneimmaniecasiiniaanuaincisusiiuiuaiitiiaaiiainiiamineiaa 23

Steagold v. United States, 451 U.S. 204 (1981).............00+ -

Stephens v. State, 214 Ga. App. 183, 447 S.E.2d 26

FIT snenenesinittoninatenenninenninanianidenpiieainidiineniiaiuiienmnennenmnienints 13

Tennessee v. Garner, 471 U.S. 1 (1985)................ccceeeeees 8, 21

United States v. Alcantar, 271 F.3d 731 (8th Cir.

GETTIN ccnicnccintennasanetaninsiieinianmenuntenidaummanbiieniameiianeeuiiniais 23

United States v. Chadwick, 433 U.S. 1 (1977)...............000 12

United States v. Garcia, 52 F.Supp.2d 1239 (D.Kan.

eo 23

vi

TABLE OF AUTHORITIES — Continued

Page

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

Seri cesehcettatineiteenebnanteehtienetenceioeeieieiinninaittieetastintentesiareereiiniael 25

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

ea eaedaeeestcedthaaalid laced lninciehilntela lace 5, 6, 12

United States v. Ramsey, 431 U.S. 606 (1977) .......... 5, 6, 10

United States v. Sanchez-Pena, 2001 WL 685539

NENA eee NEAR Oe etl aeee O 23

United States v. Thirty-seven Photographs, 402 U.S.

See Ae ea ee Oe a San ee Se 5

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

nae eae eae ee ne ae ne: 10

United States v. Watson, 423 U.S. 411 (1976) ..............00000. 7

United States v. Workcuff, 250 F.Supp.2d 1160

ere nnn ere 23

Vernonia School Dist. 47J v. Acton, 515 U.S. 646

Ee a an 7,11

Wilson v. Arkansas, 514 U.S. 927 (1995) .00.......ccccccccccccceees 7

Wyoming v. Houghton, 526 U.S. 295 (1999) ..............ee. 6, 11

CONSTITUTIONAL PROVISIONS:

Fourth Amendment, U.S. Const. .0........0.00.ccccccceccceeees passim

STATUTES:

EEE Le a Ne ae 10

TU ethnic anatase atl 19

Rat Gf Saly 31, UTED, 1 Bhab. BD ......ccccceccccccccccesccccccoccceecceees ll

Rat, Of Rang. 4, UTOD, 1 Bhat. 146B.......ccccocecccccccccccccccccecesosceces 10

Vii

TABLE OF AUTHORITIES -— Continued

Page

RULES:

| TN EEN I ee 1

A TTL I... ccrncspesnnnsinemendeiasinmmmepaemunimetemmesenpemmmmumnannes 1

OTHER AUTHORITIES:

2 LEGAL PAPERS OF JOHN ADAMS 173-210 (Atheneum

ITT ani eat eeaeaadenaearencaiaart inlined meme eeemneiimmenuneeentl 9

4 CHARLES M. ANDREWS, THE COLONIAL PERIOD OF

AMERICAN HISTORY 164 (1938) ...............ccccccceeeeeeeeeeeeeeees 10

Associated Press, “High-Tech Detection Boosts War

On Drugs” (Fume 1988) .....000..cccrscsrcccrssssccseseccccsvsesessossess 22

Chilton, General Motors, Chevy Mid-Size Cars,

1964-88 Repair Manual (1994) .............ccccccsessseeeeeereeeeees 15

Chilton, General Motors DeVille/Fleetwood/El] Dorado/

Seville 1990-98 Repair Manual (2000) ...............ccceeeees 16

Chilton, Volkswagen, Golf/Jetta/Cabriolet, 1990-99

Repair Manual (2000)...............sscssssesessseeesseeeenneesenseees 17

Chilton, VW/Audi, Passat 1998-01, A4 1996-01

Repair Manual (2001)...............sssceserssessrsessrsesesesssssenes 16

Chilton, Honda Civic/Del Sol 1996-00 Repair

SLT ETT TT 17

Chilton, Chrysler LHS, etc., 1998-2001 (2002)........... 16, 18

JACOB W. LANDYNSKI, SEARCH AND SEIZURE AND THE

SUPREME COURT 30 (1966) .............scccccecsseceseeeeseeesereenees i]

National Institute of Justice, Guide to the Tech-

nologies of Concealed Weapon and Contraband

Imaging and Detection, NIJ Guide 602-00 (Feb-

viii

TABLE OF AUTHORITIES -— Continued

Page

Universal Underwriters, The Specialist (online news-

ESSER: eo RT ORR ENS TATU A EE ee 18

US Customs Today, January 2001.............cccccccccscceccececceees 21

WILLIAM J. CUDDIHY, THE FOURTH AMENDMENT:

ORIGINS AND ORIGINAL MEANING (1990).............cccccceeeeeeee 8

Harris J. Yale, Note, Beyond the Border of Reason-

ableness: Exports, Imports and the Border Search

Exception, 11 HOFSTRA L. REV. 733 (1988) .............:0000+: 10

1

INTEREST OF AMICUS CURIAE'

The National Association of Criminal Defense Law-

yers (NACDL; www.nacdl.org) is the preeminent bar

organization advancing the mission of America’s criminal

defense lawyers to ensure justice and due process for

persons accused of crime. Founded in 1958, NACDL has

nearly 11,000 lawyer members and 80 state and local

affiliate organizations with 28,000 lawyer members

committed to preserving the Bill of Rights. The American

Bar Association recognizes NACDL as an affiliate organi-

zation on its House of Delegates. The International Bar

Association recognizes NACDL as an affiliate organiza-

tion.

NACDL promotes study and research in the field of

criminal law. In furtherance of its objectives over the past

15 years, NACDL annually files approximately ten amicus

briefs with this Court on criminal justice and personal

privacy issues.

The parties have consented to the filing of this Amicus

brief on behalf of the Respondent, and the letters of

consent should already be filed with the Clerk.

¢

‘ Pursuant to S.Ct. Rule 37.6, counsel certifies that no counsel for a

party authored any part of this brief. No person or entity other than

Amicus made a monetary contribution to the preparation or submission

of the brief.

Pursuant to S.Ct. Rule 29.6, Amicus is a nonprofit corporation. It

has no parent corporation, it is not a publicly held corporation, nor does

a publicly held company own 10% or more of its stock.

2

SUMMARY OF THE ARGUMENT

This case concerns the breadth of the power of the

Government to conduct suspicionless border searches of

vehicles, including dismantling parts of them, without

reasonable suspicion. The Government relies on the

common law and customs statutes passed at the time of

the framing of the Fourth Amendment. The statutes

provide no clear answer, and the common law strongly

suggests that a search of this intensity without cause was

unreasonable. If the Court finds the common law answer

unclear, the Court must then turn to a reasonableness

inquiry, which is informed by the changing of time and

technology. From either perspective, Respondent should

prevail.

While the framers did not anticipate automobiles,

Amicus submits that the common law at the time of the

fraining of the Fourth Amendment would not support such

a search. Searches of this nature of ships were loathed by

the colonists. The seizing of John Hancock’s sloop Liberty

led to a riot in Boston, and colonists were aware of, and

despised, similar searches in all the colonies. In that same

time period, customs officers were ordered off ships at

gunpoint and one was harpooned for exceeding their

common law authority by searching for dutiable goods

below deck before the cargo reached the docks. The in-

structions from England were that force was only permit-

ted to meet resistance to the search for dutiable goods, not

to break and enter private areas.

The original customs acts of 1789 and 1790 spoke only

to searching for goods, not breaking to retrieve them.

Nothing in the history of those acts or the common law

3

supports the breadth of search sought by the Government

in this case.

This Court’s modern case law on border searches has

distinguished between “routine” and “non-routine”

searches. The intensity of the search determines whether

it is “routine.” The Government argues that, since a mere

vehicle is involved, virtually anything it wants to do to it is

routine. It relies on the slimmest of anecdotes to state that

removal of gas tanks is “simple and easy.” It is not — it is

an involved process varying greatly by the construction of

the vehicle involved, and it is potentially dangerous

because gasoline fumes are always present and they create

a danger of fire. Some cars have to have new parts in-

stalled when disassembled. At least one requires also

disassembling the braking system of the car and lowering

the rear axle. Finally, the CDC notes that gasoline is likely

carcinogenic because of the 150 chemicals added to gaso-

line, and those working around gasoline should wear

gloves and avoid breathing the vapors.

Gathering reasonable suspicion at the border today

does not require an intensive search. A customs officer can

tap on the gas tank to hear if it sounds like it contains fuel

or solid objects, and dogs can sniff vehicles as they pass

through customs. They did that here.

Technological advances, moreover, make it possible to

search a gas tank for contraband without removing it. For

years, the Government has used vehicle x-rays, density

meters, and fiber optic scopes that are far less intrusive

than removing a gas tank, something that the Govern-

ment concedes produced nothing 7.5% of the time appar-

ently even with reasonable suspicion.

4

By tapping the tank or looking inside with their own

technological devices, they can insure that gas tank

removals are founded on reasonable suspicion. When basic

technology has overtaken the knowledge of the framers,

we should look to that technology for the answer, and that

answer here is that manual removal of a gas tank to

search it without reasonable suspicion is unreasonable.

The Court has never foreclosed looking to the avail-

ability of less intrusive measures as an element of

reasonableness. This is a case where the intensity of the

search can readily and more easily be ameliorated by a

less intrusive measure that actually saves the government

time, expense, and manpower and protects the innocent

motorist from unwarranted delays in crossing the border

where an officer decides to search a gas tank without

suspicion.

+

ARGUMENT

THE SEARCH OF A VEHICLE GAS TANK BY

REMOVING IT IS NOT A “ROUTINE BORDER

SEARCH” WHICH CAN OCCUR WITHOUT REA-

SONABLE SUSPICION.

A. Introduction

The parties have more than adequately addressed the

justification for the border search exception in the context

of the facts of this case, so Amicus will not belabor it here.

The crux of this case is: whether removing a gas tank from

a ee

5

an automobile without reasonable suspicion’ there is

contraband inside is a “routine border search” or otherwise

“reasonable” under United States v. Montoya de Hernan-

dez, 473 U.S. 531, 537-38 (1985); see United States v.

Ramsey, 431 U.S. 606, 615 (1977). If it is not a “routine

border search,” then reasonable suspicion is required.

Montoya de Hernandez, 473 U.S. at 541.

No one doubts the power of the Government to search

(including dog sniff) at the border of luggage,’ shipping

containers, mail,‘ trunks of cars,’ backs of trucks, and

cargo of ships® to look for dutiable goods, contraband, or

illegal aliens “to control, subject to substantive limitations

imposed by the Constitution, who and what may enter the

country.” Ramsey, 431 U.S. at 620.

Montoya de Hernandez found the detention of an

alimentary canal drug smuggler for the duration of neces-

sary body functions was not a routine border search, but it

was reasonable and conducted with reasonable svspicion,

and the delay and obvious discomfort she endured was,

* The Government has expressly waived reliance on reasonable

suspicion in the District Court, the Court of Appeals, and here, and it is

bound by that now.

From the facts, however, it is obvious that there was reasonable

suspicion by the fact the gas tank sounded solid and a drug dog alerted

to the vehicle. Br.U.S. at 3.

* United States v. Thirty-seven Photographs, 402 U.S. 363, 376

(1971).

* Ramsey, supra.

*Carroll v. United States, 267 U.S. 132, 153-54 (1925) (dicta);

Almeida-Sanchez v. United States, 413 U.S. 266, 272 (1973).

* Boyd v. United States, 116 U.S. 616, 623 (1886).

6

however, caused by her own actions in choosing to secrete

drugs within her body. Jd. at 544.

What is a “routine border search”? The answer is not

always obvious, but the Government’s historical power did

not go as far as the Government suggests. Indeed, history

indicates that this breadth of suspicionless border search

was prohibited. The distinction between routine and non-

routine searches is a balance struck between the needs of

law enforcement and privacy. The Government suggests

that it “must have wide latitude to remove and, if neces-

sary, to disassemble a vehicle’s gas tank to deter and

detect illegal smuggling into the country.” Br.U.S. at 16.

But, this is precisely what the border search exception

already provides, since the Government has always had

the power to make routine searches with no suspicion, and

more intensive, non-routine searches with reasonable

suspicion. The Government’s language suggests some sort

of exigency, but the border search exception is “not based

on the doctrine of ‘exigent circumstances’ at all.” Ramsey,

431 U.S. at 621.

The Government cannot show that disassembling a

vehicle is “routine” under either an historical view or a

reasonableness analysis. An analysis of both may ulti-

mately be required in this case.

B. The Common Law and historical basis for customs

searches

1. Application of the Common Law and “Rea-

sonableness.”

In Wyoming v. Houghton, 526 U.S. 295, 299-300

(1999), the Court said:

es

7

In determining whether a particular governmen-

tal action violates this provision, we inquire first

whether the action was regarded as an unlawful

search or seizure under the common law when

the Amendment was framed. See Wilson v. Ar-

kansas, 514 U.S. 927, 931 (1995); California v.

Hodari D., 499 U.S. 621 (1991). Where that in-

quiry yields no answer, we must evaluate the

search or seizure under traditional standards of

reasonableness by assessing, on the one hand,

the degree to which it intrudes upon an individ-

ual’s privacy and, on the other, the degree to

which it is needed for the promotion of legitimate

governmental interests. See, e.g., Vernonia School

Dist. 47J v. Acton, 515 U.S. 646, 652-653 (1995).

See also Kyllo v. United States, 533 U.S. 27, 40 (2001) (“we

_must take the long view, from the original meaning of the

Fourth Amendment forward”). In Wilson, 514 U.S. at 431,

the Court said:

In evaluating the scope of this right, we have

looked to the traditional protections against un-

reasonable searches and seizures afforded by the

common law at the time of the framing. See Cali-

fornia v. Hodari D., 499 J.S. 621, 624 (1991);

United States v. Watson, 423 U.S. 411, 418-420

(1976); Carroll v. United States, 267 U.S. 132,

149 (1925). “Although the underlying command

of the Fourth Amendment is always that

searches and seizures be reasonable,” New Jersey

v. T.L.O., 469 U.S. 325, 337 (1985), our effort to

give content to this term may be guided by the

meaning ascribed to it by the Framers of the

Amendment.

The Court has also said that it has not frozen into law

the Fourth Amendment as it existed in 1791. Payton v.

8

New York, 445 U.S. 573, 591 n. 3 (1980), quoted in Stea-

gald v. United States, 451 U.S. 204, 218 n. 10 (1981), and

Tennessee v. Garner, 471 U.S. 1, 13 (1985). And, where

there is no common law guidance, “reasonableness” must

be read in light of changing circumstances of modern

times. “Because of sweeping change in the legal and

technological context, reliance on the common-law rule in

this case would be a mistaken literalism that ignores the

purposes of a historical inquiry.” Garner, 471 U.S. at 13

(common law sanctioned killing fleeing nonviolent felons,

but “changes in the legal and technological context mean

the rule is distorted almost beyond recognition when

literally applied”; id. at 15).

When technology overtakes the common law, as will

be seen has happened here, Garner requires us to look to

technology for the answer. Here, technology obviates the

need for suspicionless gas tank removal because the

government can get its reasonable suspicion with minimal

effort.

2. Nothing in the Common Law sanctions this

kind of “breaking” or intensive search with-

out suspicion.

At common law, this kind of “breaking” of property for

a border search was not sanctioned.

As Respondent notes, Cuddihy states that colonists

treated their ships as well as houses as their castles.

WILLIAM J. CUDDIHY, THE FOURTH AMENDMENT: ORIGINS

AND ORIGINAL MEANING, 602-1791, at 362-63 & 1215

(1990). The infamous search and seizure of John Hancock’s

sloop Liberty in May 1768 engendered great resentment in

the colonies, but it was obvious that it was the culmination

9

of a building resentment over unrestrained searches and

seizures and breakings of containers and ships by customs

officials and naval officers up and down the colonial

coastline. Jd. at 1216-19." One month earlier, a customs

officer went below deck of Hancock’s Lydia, and Hancock

had him brought up at gunpoint telling him that, while

they could assess the cargo on the dock,’ customs officers

had no business searching his ship. After the seizure of the

Liberty, a “small riot” ensued, and one customs officer had

his boat burned and others were chased off by a band of

Hancock supporters. Finally, the Liberty was returned to

Hancock. The story and importance of the seizure of the

Liberty was only touched on in passing by CUDDIHY, but it

is discussed at length in 2 LEGAL PAPERS OF JOHN ADAMS

173-210 (Atheneum 1965) because John Adams repre-

sented Hancock in the suit over the seizure of the Liberty.

The gist of Adams’s account is that the law at the time

required customs officers to have suspicion to search. Also,

the infamous writs of assistance were intertwined with

customs searches; JACOB W. LANDYNSKI, SEARCH AND

SEIZURE AND THE SUPREME CourRT 30 (1966); and, Amicus

’ “A Pennsylvanian lamented that naval officers and degenerated

into ‘pimping tidewaiters’ who scoured every harbor and creek in the

colonies with armed force, detained everything afloat from fishing

smacks to wood boats, tumbled their cargoes, and inspected even their

ballast.” CUDDIHY at 1217.

CuppI1nY also writes of customs officer Henry Panton harpooned in

the jugular by outraged crewmen when his customs search apparently

turned pretextual. Jd. at 1218-19.

Interestingly, CUDDIHY also writes of customs officers searching for

flammable goods and gunpowder with an open flame. /d. at 1216. See

infra.

* Compare id. at 1216.

10

submits, that indicates a common law requirement of

probable cause or at least reasonable suspicion. At the

minimum, reasonableness was always required. Harris J.

Yale, Note, Beyond the Border of Reasonableness: Exports,

Imports and the Border Search Exception, 11 HOFSTRA L.

REV. 733, 748 n. 122 (1983). As Respondent notes in his

brief, general instructions from England were “to do no

more than” enter upon a ship and diligently search, and

force was only permitted to meet resistence. Resp.Br., Part

C.4, quoting 4 CHARLES M. ANDREWS, THE COLONIAL

PERIOD OF AMERICAN HISTORY 164 (1938).

3. Nothing in the first customs acts sanctions

this kind of breaking.

In Ramsey, 431 U.S. at 616-17 n.12, the Court dis-

cussed Act of July 31, 1789, 1 Stat. 29, adopted at the time

of the adoption of the Fourth Amendment, and it noted

that § 23 of the Act granted Customs agents power to open

packages in the presence of “two or more reputable mer-

chants.” Section 24 of the Act noted that Customs officers

had the power to board vessels and search for goods

subject to duty, “but if they shall have cause to suspect a

concealment thereof, in any particular dwelling-house,

store, building, or other place, they or either of them shall,

upon application on oath or affirmation to any justice of

the peace, be entitled to a warrant to enter such house,

store, or other place (in the day time only).”

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

(1983), the Court analyzed the successor statute, Act of

Aug. 4, 1790, ch. 35, §31, 1 Stat. 145, 164, quoted in

Resp.Br. Part C.2., which became 19 U.S.C. § 1581(a)

which permits customs officers to board any vessel or

11

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

vehicle and every part thereof and any person, truck,

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.” Contextually, “compel compliance”

refers to “hail and stop.” The question is what does “search

the vessel or vehicle and every part thereof and any

person, truck, package, or cargo on board” encompass?

Section 31 talks about sealing containers for later inspec-

tion, but not any breaking. Respondent notes that 19

U.S.C. § 1461 “contemplates opening a ‘closed vehicle’ with

a key.” Resp.Br., Part C.2. n.20. This common law history

militates against granting the Government a general

power to break and disassemble at the border.

Nothing in the history of the Fourth Amendment, the

customs statutes, or the Common Law supports the

Government’s position that such an intrusive breaking as

here can occur without reasonable suspicion. Section 48 of

the 1790 Act used the phrase “reason to suspect” dutiable

goods were being concealed as grounds to search a vessel,

and “reason to suspect” today-means “probable cause.”

Resp.Br. Part C.2., citing Wyoming v. Houghton, 526 U.S.

at 300, and Vernonia, 515 U.S. at 670-71 (O’CONNOR, J.,

dissenting) and noting Justice O’CONNOR “cit[ed] the

identical language in the Collection Act of July 31, 1789,

§ 24, 1 Stat. at 43[]. Thus, it appears that the first Con-

gress required probable cause for the most intrusive

search it authorized, a higher standard than the Court of

Appeals applied here,” or any court of appeals in any case

involving gas tank removals.

12

C. Routine v. Non-Routine and Fourth Amendment

Reasonableness

1. Introduction.

As noted above, Fourth Amendment reasonableness is

always an issue, even in a border search. Montoya de

Hernandez, 473 U.S. at 538. Reasonableness is the “touch-

stone”’ or “fundamental inquiry” in Fourth Amendment

cases. “Reasonableness, in turn, is measured in objective

terms by examining the totality of the circumstances.”

Robinette v. Ohio, 519 U.S. 33, 39 (1996); accord Delaware

v. Prouse, 440 U.S. 648, 655 (1979) (reasonableness must

be viewed objectively lest privacy be “subject to the discre-

tion of the officer in the field”).

Since any reliance on reasonable suspicion has been

expressly disavowed in this case, this search was not

reasonable under all the circumstances, in light of the lack

of reasonable suspicion which must be taken as a given.

2. Gas Tank Searches Are Not a Minimal Intru-

sion and, Therefore, Not “Routine” -— The

Work Is Inherently Dangerous If Not Done

Safely or Correctly. .

The Government asserts, without any contemporary

reading or factual investigation, that “[t]he procedure

involved in a gas tank search also involves no extraordi-

nary intrusion on either the individual or his vehicle. The

* Robinette v. Ohio, 519 U.S. 33, 39 (1996), quoting Florida v.

Jimeno, 500 U.S. 248, 250 (1991).

” United States v. Chadwick, 433 U.S. 1, 9 (1977); Griffin v.

Wisconsin, 483 U.S. 873 (1987).

13

disassembly and removal of a gas tank is a relatively easy

and straightforward procedure that may be readily per-

formed by automobile mechanics.” Br.U.S. at 25. The

Government presents the Court with four websites with

personal anecdotes in “chat-type” postings by shadetree

mechanics that removal of particular gas tanks is “rela-

tively easy and straightforward.” Jd. at 25-26 n. 5. The

Government completely overlooks the host of reported

cases involving gasoline fires in garages occurring under

similar circumstances.” And, if its contract mechanic is

responsible for a gasoline fire, who pays? Does the Gov-

ernment’s discretionary function exemption to the Federal

" The number is too great to cite, and they have been around as

long as there have been automobiles. Just a few give the flavor: see, e.g.,

Glenns Falls Ins. Co. v. Danville Motors, Inc., 333 F.2d 187 (6th Cir.

1964) (garage gasoline fire burned down apartment building); Charter

Oak Fire Ins. Co. v. Trio Realty Co., 2002 WL 123506 (S.D.N.Y. 2002)

(gasoline spilled to floor and was ignited by pilot light of hot water

heater); Meridian Mut. Ins. Co. v. Parkey, 769 N.E.2d 1179 (Ind. App.

2002) (fumes ignited while gas was being syphoned from tank);

Stephens v. State, 214 Ga. App. 183, 447 S.E.2d 26 (1994) (arson

utilizing gasoline vapor from car); Indiana Consol. Ins. Co. v. Mathew,

402 N.E.2d 1000 (Ind. App. 1980) (just filled lawn mower caught fire in

garage after being started); Starks Food Markets v. El Dorado Refining

Co., 156 Kan. 577, 134 P.2d 1102 (1943) (gas tank being filled from

tanker truck caught fire); Baker v. Employers’ Fire Ins. Co., 201 So.2d

349 (La. App. 2d Cir. 1967) (gasoline fire on car on front-end alignment

rack; gas tank exploded when fire department tried to move car out of

garage in an attempt to save building).

Remarkably, something as benign and as omnipresent as a garage

mechanic's “creeper,” a device for a mechanic to roll under a car on his

or her back to do repairs or inspect without lifting the car, caused a

spark that ignited gasoline fumes and destroyed a state owned garage

and the adjoining business and it contents in 1948. State ex rel. Cox v.

Sims, 128 W.Va. 482, 77 S.E.2d 151 (1953). Creepers have metal wheels,

the floor was concrete, and that combination created a spark source.

14

Tort Claims Act protect it from liability, or must the

vehicle owner look to his or her own insurance, if the

owner happens to have coverage for such an event?

Amicus invites the Court to read the three Internet

postings proffered by the Government that are still online

(as of January 10, 2004, one was missing”): the newest car

referred to in the first citation involves a 1974 Porsche

914, but the “easy task” has two screens of directions”; the

third reference was to removing the gas tank in a 1959 Ford;

and the last, www.linamillioncars.com, referred to a 1965

Ford that the poster was also trying to sell. The Government

provided nary a word from a professional mechanic. Profes-

sional mechanics, as will be seen, require far more.

Amicus’s counsel went to a Barnes & Noble store for a

couple of hours in early January 2004, and stood in the

section on automobile repair perusing a few dozen Chilton

Repair Manuals. Chilton is the ultimate publisher of

automobile repair manuals, and they have published

manuals for decades for virtually all basic cars sold in

America. All the Chilton repair manuals have one of two

warnings about removing fuel tanks. The predominant,

more current ones state, with bold face and italic in the

original:

“ The second citation, within www.c3sharktank.com, came up as

“404 Page Not Found,” and a search of the website could not locate the

reference either.

* The end of the directions also state: “Finally, make sure you do this

in an area free from sparks or other source of ignition, as you will be

working with an open tank of gasoline. To be safe, it is also not a bad idea

to disconnect the battery.” The Government left those critical facts out in

describing it as a “relatively easy and straightforward procedure.”

~~. Ee se eee

15

Warning: Gasoline is extremely flammable so

take extra precautions when you work on any part

of the fuel system. Don’t smoke or allow open

flames or bare light bulbs near the work area,

and don’t work in a garage where a natural gas-

type appliance (such as a water heater or a

clothes dryer) with a pilot light is present. Since

gasoline is carcinogenic, wear latex gloves when

there’s a possibility of being exposed to fuel, and,

if you spill any fuel on your skin, rinse it off im-

mediately with soap and water. Mop up any spills

immediately and do not store fuel-soaked rags

where they could ignite. The fuel system is under

constant pressure, so, if any fuel lines are to be

disconnected, the fuel pressure in the system must

be relieved first. When you perform any work on

the fuel system, wear safety glasses and have a

Class B type fire extinguisher on hand.

Chilton’s earlier warnings state:

Caution: Observe all applicable safety precau-

tions when working around fuel. Whenever ser-

vicing the fuel system, always work in a well-

ventilated area. Do not allow fuel spray or vapors

to come in contact with a spark or open flame.

Keep a dry chemical fire extinguisher near the

work area. Always keep fuel in a container spe-

cifically designed for fuel storage; also, properly

seal the fuel containers to avoid the possibility of

fire or explosion.“

* See, e.g., Chilton, General Motors, Chevy Mid-Size Cars, 1964-88

Repair Manual (1994), Ch. 5, p. 52-54 (repeating the warning five times

in three pages):

(Continued on following page)

16

The Chilton series notes that most automobiles built

since the late 1990’s have plastic gas tanks that must be

replaced if even slightly damaged.* Some require that new

seals be installed whenever the parts of the tank are re-

moved." Some state that gasoline spillage will necessarily

> Be sure to store the fuel tank in a cool dry area out of di-

rect sunlight. Keep any source of flame away from the

tank[.] 'E]ven though it has been drained of most fuel, there

is likely an [sic] large amount of flammable vapors still

stored in the gas tank.

* See, e.g., Chilton, VW/Audi, Passat 1998-01, A4 1996-01 Repair

Manual (2001), Ch. 4, §§ 1 & 6 (these fuel tanks are not repairable -

they must be replaced if even slightly damaged); Chilton, Chrysler

LHS, etc., 1998-2001 (2002), Ch. 4, § 6(1) (same).

** Chilton, General Motors DeVille/Fleetwood/E] Dorado/Seville 1990-98

Repair Manual (2000), Ch. 5, p. 9, step 9.

This begs the question of whether the Government’s contract

mechanics bring the parts or must send for them when they find out

that parts also need to be replaced, thereby unnecessarily extending the

stop even longer. Since the Government admits that 348 gas tank

searches in Southern California during the relevant time period were

fruitless (because they rely on no suspicion at all), Br.U.S. at 31, the

search and seizure is extended by the time it takes to secure the parts

to correctly complete the repairs, depending upon whether the Govern-

ment chooses to do the repairs completely or send the motorist on his or

her way with a defective fuel system that will leak, only to later cause a

fire away from the border.

With 4,619 drug seizures from gas tanks, Br.U.S. at 16, that gives

the Government a 92.5% success ratio when they presumably have

reasonable suspicion. If the Government was following the appellate

court decisions requiring reasonable suspicion, then 7.5% of the time

the reasonable suspicion was wrong. In percentages, it sounds effective,

but, in raw numbers, the occupants of 348 vehicles, potentially a

thousand people, were severely inconvenienced.

Here, the Government wants it all, to be able to conduct these searches

even without reasonable suspicion, and that would greatly increase the

numbers of innocents subjected to unreasonable border searches.

tI

17

occur and safety precautions must be taken.” All state

that the negative battery terminal must be disconnected to

avoid an electrical spark that would start a fire, but only

one warned to write down the car radio security code so

the audio system, which could be extremely expensive, will

work when the battery is reconnected.”

Most notably, we find that removal of the gas tank in

a 1990-99 Volkswagen is anything but easy, and it involves

removal and replacement of other vital parts of the car.

Chilton states that the negative battery cable should be

disconnected, the mechanic must be grounded to the car to

avoid sparks, the back seat must be removed to get access

to some of the tank bolts, the inner fender wall must be

removed to disconnect the filler line, the rear axle must be

disconnected and lowered, including bleeding and discon-

necting the hydraulic brake lines, and the muffler discon-

nected.” That is anything but simple.

" See, e.g., Chilton, Saturn Coupes/Sedans/Wagons 1991-98 Repair

Manual (1998), Ch. 5, p. 21 (18 steps).

* Chilton, Honda Civic/Del Sol 1996-00 Repair Manual (2001), Ch.

5, p. 11, step 1.

The radios of nearly all cars built within the last several years have

built-in anti-theft programs. When the radio is reinstalled or the power

disconnected and reconnected, the mechanic has to press the six channel

keys in a certain sequence to activate the radio. An incorrect code can

permanently disable the electronics in the radio to make it not worth

stealing.

* Chilton, Volkswagen, Golf/Jetta/Cabriolet, 1990-99 Repair Manual

(2000), Ch. 5, p. 12.

18

And, if one is cleaning a gas tank, Chilton recom-

mends a professional mechanic must do the work.”

Even a nearly empty gas tank has gas fumes. Gas

fumes explode. Therefore, gas tanks can explode during

repairs. This is common sense.

On its website, Universal Underwriters, a fire insurer

has an online newsletter The Specialist with an article on

“How to avoid fire losses while servicing gasoline tanks.”

They write: “Service work on automotive gasoline tanks

can result in significant property damage and employee

injury if proper procedures and equipment aren’t used. To

the right are examples of such losses.["] Don’t let them

happen at your dealership.” It adds: “Note: only skilled

employees who have been trained to safely work on or

service gasoline tanks should be allowed to perform such

work.”” Just to be sure, they say it again: “The work should

only be performed by employees with sufficient skill and

training to carry out the operation in a safe manner.”

So, the Government wants the Court to believe that it

is an “easy task” that can be done by anybody, but it is

* Chilton, Chrysler LHS, etc., supra, § 6(2): “Cleaning the fuel

tank (due to fuel contamination) should be performed by a professional

with the proper training to carry out this critical and potentially

dangerous work. Even after cleaning and flushing, explosive fumes may

remain inside the fuel tank.”

" The site lists examples of just five major garage fires from

dropping a shop light which ignited fumes (one causing $729,000

damage) or fumes exploding from a pilot light. See the following note.

* http//www.universalunderwriters.com/uug/maintenance.nsf/0/F6

AOCB83E821523F86256DD3006D983 D?opendocument&changemenu=no.

* Id.

19

apparently oblivious to the obvious risks. To anyone who has

ever spent any time in a garage, working on a gas tank is

neither easy nor safe. Those of us who worked in fleet garages

in college and law school are quite familiar with the risks of

working on gas tanks. All of the Courts of Appeals to have

viewed this issue, cited in Respondent's brief, have come to this

realistic conclusion, and this Court should, too. Common sense

should not take a back seat in constitutional adjudication.

The precautions are significant, because, once fumes

ignite, there likely will be an explosion. If one is lucky,

maybe it will just be a fire that can be put out with a fire

extinguisher, which all the Chilton manuals, not to men-

tion OSHA and all local fire safety codes, require be

present. Add to this danger of fire and explosion the fact

that the same Government prosecuting this case strongly

suspects that gasoline is carcinogenic if it comes into

contact with the skin or is inhaled“ and requires that

underground metal gasoline storage tanks are environ-

mental hazards that must be removed and ground con-

tamination cleaned up at great expense to the owners.” It

is also common knowledge that several states, the first

being California, require that gasoline pumps have devices

* Because gasoline includes 150 different chemicals, overexposure

to gasoline has been linked to breast cancer in men, and it can cause

harmful effects to the central nervous system according to the Center

for Disease Control. The jury is still out on the extent of the cancer risk,

and the Environmental Protection Agency is still studying it. http://

www.atsdr.cdc.gov/tfacts72.html.

* The Resource Conservation and Recovery Act of 1976, as

amended (RCRA § 9004), 42 U.S.C. § 6991c, allows the U.S. Environ-

mental Protection Agency to approve state undergroun¢ sterace tank

programs to operate in the state in lieu of the federa? wnderground

storage tank program.

20

to rec'aim gasoline fumes generated by the process of

pumping and return them to the underground tank. Why?

Gasoline fumes add to pollution.

Some gas tank parts must be replaced if removed for any

reason; some cars require disassembling the brakes, bleeding

the brake fluid out of a car, and dropping the rear axle, and all

that after removing the rear seat to get to an access panel

under it and removing the inner fender well to get to the filler

line. How can it rationally be stated that this is “routine”?

What if the contract mechanic fails to do his or her job cor-

rectly in reassembling the car or does not note that a particu-

lar car is one of those needing replacement parts? What if a

$1,000 audio system self-destructs because the mechanic

failed to note the security code? Who is responsible?

The best the Government can do is rely on four

“shadetree mechanics” (not professional or certified me-

chanics) working at home on 30+ year old cars found from

Google searches for its anecdotal, not professionally-

guided, sources. Maybe it is easy on 30 year old cars where

the owner is the mechanic cutting corners, but it is not

easy today — it is inherently dangerous to the safety and

health of the persons doing the work, including the Cus-

toms agents standing around watching, waiting for the gas

tank to be dropped out so they can get right to it to ham-

mer on the gas tank, as happened here. Br.U.S. at 3:

“Inspector Pesayco hammered off bondo . . . from the top of

the gas tank. That process took an additional 5 to 10

minutes.” If Inspector Pesayco was using metal tools or

was using metal tools on a metal tank,” there was a risk of

* This car was old enough that the tank would be metal.

-—— ss

21

fire or explosion. Thus, in their zeal to open the gas tank,

the Customs agents put themselves, the contract me-

chanic, the garage of the Government, and the property of

the target of the search and seizure all at unnecessary risk

of fire while ferreting out crime.”

3. Technological Advances Make It Far Easier

to Determine Reasonable Suspicion of Smug-

gling, and This Must Be Factored Into a Rea-

sonableness Analysis.

Kyllo brought this Court face-to-face with a techno-

logical advance, thermal imaging, that made it possible to

intrude into the expectation of privacy of a house. As this

Court noted in Garner, 471 U.S. at 15, “changes in the

legal and technological context” can distort common law

meanings “almost beyond recognition when literally ap-

plied.” Elementary technological changes already employed

by the Government at the borders enable it to conduct

intensive and quite revealing searches of vehicles without

even touching them. Customs uses “mobile truck x-ray,

buster density meter[s], and fiber optic scope[s]” to deter-

mine what is hidden. US Customs Today, January 2001,

a oor

——

” Which brings to mind Justice JACKSON’s comment in Johnson v.

United States, 333 U.S. 10, 13-14 (1948):

The point of the Fourth Amendment, which often is not

grasped by zealous officers, is not that it denies law en-

forcement the support of the usual inferences which reason-

able men draw from evidence. Its protection consists in

requiring that those inferences be drawn by a neutral and

detached magistrate instead of being judged by the officer

engaged in the often competitive enterprise of ferreting out

crime.

22

http://www.cbp.gov/xp/CustomsToday/2001/January/custoday

_hrm.xml. In June 1999, the Associated Press ran a story

that was picked up nationwide: “High-Tech Detection

Boosts War On Drugs.”” The article speaks of a truck x-

ray that can find drugs and illegal aliens in hidden com-

partments,” density meters” that can tell whether the

wall of a compartment or a truck body has something

hidden in it” (which is the subject of National Institute of

Justice, Guide to the Technologies of Concealed Weapon

and Contraband Imaging and Detection, NIJ Guide 602-00

(February 2001)”), and fiber optic scopes that can be

inserted through the gas filler line to determine whether

the gas tank has something other than gas in it.

* http//www.mapinc.org/drugnews/v99.n592.a08.html and http://www.

hemp.net/news/9906/14/high_tech_customs.shtml. One newspaper's ver-

sion of this article was cited in Christopher E. Smith & Madhavi

McCall, Constitutional Rights and Technological Innovations in

Criminal Justice, 27 S. ILL. U. L. J. 103, 104 n. 9 (2002).

See http//www.msnbc.msn.com/Default.aspx?id=3070685&p 1=0 (showing

a picture of a dog sniffing a car while another Customs inspector uses a

density meter on the left rear quarter panel, apparently from Septem-

ber 2003).

* It has even been on the Discovery Channel that trains are x-

rayed at the border, too.

* One seller of portable density meters is Mettler Toledo,

www.mt.com.

The White House Office of Drug Control Policy gives grants to

police departments to buy density meters. See, e.g., http://www.odessapd.

com/k9. htm.

* Density meters have even made into movie scripts: http://www.

stationfive.com/movies/Scripts/Mission_Impossible_2.txt.

* http://www.ncjrs.org/pdffiles 1/nij/184432.pdf. Chapter 7, at 33-50,

discusses the technology of density meters.

23

Density meters™ and fiber optic scopes” have figured

in numerous drug searches, only a few of which have been

reported. And they can actually enhance privacy interests

of the targets of searches and seizures, assuming the

officer has justification for using one, by preventing

needless destruction of property where the officer’s suspi-

cions are aroused. See, e.g, United States v. Workcuff, 250

F.Supp.2d 1160, 1181 (W.D.Mo. 2003) (density meter used

on walls to avoid needless destruction of property during

execution of a search warrant).

The Government had these tools available to it at this

border crossing, but it seeks a vastly broader rule: one that

permits an invasive search of a car with no pretense of

suspicion, so invasive it would not be permitted even

during an inventory search or a Terry/Long search of a car

for weapons, all places where the Government also has a

* See, e.g., United States v. Hernandez, 314 F.3d 430, 432 (9th Cir.

2002) (used on door of minivan), amended and superseded, 322 F.3d

592, 595 (9th Cir. 2003), petition for cert. filed (June 3, 2003; No. 02-

11098); State v. Garcia, 2003 WL 22247450, *3 (Tenn. Oct. 1, 2003);

People v. Moya, 2002 WL 31031780, *1, *2 n. 1 (Cal.App. 4th Dist. 2002)

(unreported) (used by at random on cars in a parking lot near the

Mexican border; constitutional issue of use of density meter not decided

because of independent dog alert).

Counsel for Amicus can state as an officer of the Court that he

reads police reports at least once a week where Arkansas State Police

officers, particularly along I-40 near the Oklahoma border and around

Little Rock, in a notoriously poor state, use density meters on vehicles

when their suspicions are aroused. If the meter gives them more

suspicion, they call for a drug dog.

“ The following cases all involve searching gas tanks with fiber

optic scopes: United States v. Alcantar, 271 F.3d 731, 735 (8th Cir.

2001); United States v. Sanchez-Pena, 2001 WL 685539, *1 (W.D. Tex.

2001); United States v. Garcia, 52 F.Supp.2d 1239, 1249 (D.Kan. 1999).

24

weighty interest. When basic technology overtakes the

knowledge of the framers, we should look to that technol-

ogy for the answer. That answer here is that manual

removal of a gas tank without reasonable suspicion is

unreasonable under the Fourth Amendment.

4. The Ready Availability of Far Less Intrusive

Measures Makes This Search Unreasonable.

Amicus recognizes that this Court has held that the

availability of “reasonable alternatives” or “less intrusive

measures” is usually for law enforcement to decide and not

for courts to second guess. Michigan Dept. of State Police v.

Sitz, 496 U.S. 444, 453-54 (1990) (“But for purposes of

Fourth Amendment analysis, the choice among such

reasonable alternatives remains with the governmental

officials who have a unique understanding of, and a

responsibility for, limited public resources, including a

finite number of police officers.” (dealing with how sobriety

checkpoints will be established)). But, in Illinois v. Lafay-

ette, 462 U.S. 640, 647-48 (1983), the Court made it clear

that it did not foreclose the use of “less intrusive meas-

ures” in assessing reasonableness of a particular search:

The reasonableness of any particular gov-

ernmental activity does not necessarily or in-

variably turn on the existence of alternative “less

intrusive” means. In Cady v. Dombrowski, 413

U.S. 433 (1973), for example, we upheld the

search of the trunk of a car to find a revolver

suspected of being there. We rejected the conten-

tion that the public could equally well have been

protected by the posting of a guard over the

automobile. In language equally applicable to

this case, we held, “[tJhe fact that the protection

of the public might, in the abstract, have been

25

accomplished by ‘less intrusive’ means does not,

by itself, render the search unreasonable.” Jd., at

447. See also United States v. Martinez-Fuerte,

428 U.S. 543, 557 n. 12 (1976). We are hardly in

a position to second-guess police departments as

to what practical administrative method will best

deter theft by and false claims against its em-

ployees and preserve the security of the station-

house. It is evident that a stationhouse search of

every item carried on or by a person who has

lawfully been taken into custody by the police

will amply serve the important and legitimate

governmental interests involved. (emphasis

added)

This case involves something much more than appli-

cation of a less intrusive measure as to where and how a

DWI roadblock will be established or whether a package

will be inventoried in storage. Rather, it involves a far

more serious intrusion into the liberty and freedom of

movement of a motorist crossing the border while officers

spend an hour or more taking the gas tank out of their car

on a mere whim, if they so choose. This is a situation

where the intensity of the search can readily and more

easily be ameliorated by a readily available less intrusive

measure that actually saves the government time, ex-

pense, and valuable manpower and protects the innocent

motorist from unwarranted delays and intrusive searches

in crossing the border when an officer decides to search a

gas tank without suspicion.

Thus, the Court should look to Customs’ own common

use of its basic technology at the border which should be

used to determine reasonable suspicion without granting

the Government the wholesale right to disassemble any

car it wants for any reason whatsoever, and that is exactly

26

the power the Government seeks. In the context of this

case, the failure to use a common and less intrusive

measure cuts to the heart of reasonableness of a search as

a whole, and this is just the exception that Lafayette was

looking to. Therefore, when balancing individual interests

against governmental need, the scale tips decidedly

toward individual interests because the magnitude of

invasion of privacy and the greater length of detention of

the individual. When this type of search occurs, reason-

ableness dictates that it be based on something more than

merely presenting oneself at the border and the whim of

the particular officer at that day and time.

Indeed, merely tapping on a gas tank with one’s

knuckle may provide reasonable suspicion, as it did here,

but the Government wants its proposed suspicionless

search rule, and nothing else. The Fourth Amendment,

however, requires more from our Government, and it

always has, from the seizure of John Hancock’s Liberty to

the Customs statutes of 1789 and 1790 to today.

Therefore, this search is clearly “non-routine” and it

must be subject to the reasonable suspicion standard.

¢

27

CONCLUSION

The judgment of the Court of Appeals should be

affirmed.

Respectfully submitted,

JOHN WESLEY HALL, JR.*

1311 Broadway i

Little Rock, AR 72202-4843

(501) 371-9131

DAVID M. SIEGEL

NEW ENGLAND SCHOOL OF LAW

154 Stuart Street

Boston, MA 02116

(617) 422-7270

LIsA B. KEMLER

ZWERLING & KEMLER, P.C.

108 N. Alfred St.

Alexandria, VA 22314

(703) 684-8000

*Counsel of Record