Petition for Writ of Certiorari — Nates v. United States

87-1556 EELED

NO.

SUPREME COURT OF THE UNITED STATES

October Term, 1987

CARLOS NATES,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH T. VODNOY

JOSEPH F. WALSH

Attorneys at Law

316 West Second Street

Suite 1200

Los Angeles, CA 90012

(213) 627-1736

Attorney for Petitioner

CARLOS NATES

QUESTIONS PRESENTED

1. Whether the border search

exception to the search warrant require-

ment of the Fourth Amendment applies to

travelers who are leaving the United

States?

2. Whether 31 U.S.C., section

5317 is unconstitutional in violation of

the Fourth Amendment because it places

no limitation on the search of persons

leaving the United States?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED i

TABLE OF AUTHORITIES

OPINIONS BELOW 2

JURISDICTION 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS 2

STATEMENT OF THE FACTS 3

REASON FOR GRANTING THIS PETITION 6

I. THE BORDER SEARCH EXCEPTION

TO THE SEARCH WARRANT REQUIRE-

MENT DOES NOT APPLY TO TRAVELERS

WHO ARE LEAVING THE UNITED

STATES. 6-15

CONCLUSION. Ao

APPENDIX "A" 7

OPINION, UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT,

filed October 30, 1987.

APPENDIX "B"

ORDER, UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT,

filed January 21, 1988

aite

.

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_~ _ 45 os

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: x

: \ > im a

TABLE OF AUTHORITIES

Page

Cases

Almeida-Sanchez v. United States,

413 U.S. 266 (1973) 8

Boyd v. United States,

116 U.S. 616 (1886) 6

California Bankers' Association

v. Schultz, 416 U.S. 21 (1974) 8

Carroll v. United States, %

267 U.S. 132 (1925) 6

Mincey v. Arizona,

437 U.S. 385 (1978) 11

Torres v. Puerto Rico,

442 U.S. 465 (1979) 14

United States v. Brignoni-Ponce,

422 U.S. 873 (1975) 8

United States v. Des Jardins,

747 F.2d 499 (9th Cir. 1984) 11

United States v. Duncan,

693 F.2d 971 (9th Cir. 1982) 9

United States v. Hernandez-Salazar, _

813 F.2d 1126 (99th Cir. 1987) 9

United States v. Montoya de Hernandez,

473 U.S. 531 (1985) 8

United States v. Ramsey,

431 U.S. 606 (1976) 6

“iii-q .

United States v. Ross,

102 S.Ct. 2157 (1982)

United States v. Stanley,

545 F.2d 661 (9th Cir. 1976)

Statutes

18 U.S.C. §1001

28 U.S.C. §1254

31 U.S.C. §5316

31 U.S.C. §5317

Rules

Federal Rules of Criminal Procedure

Rule 1ll(a) (2)

Texts

Note, Beyond the Border of

Reasonableness: Exports, Imports

ana the Border Search Exception,

ll Hofstra.L.Rev. 733 etLE

W. Rincle, Searches, Seizures,

Arrests and Confessions, Sec.

15.2(c), p.115-116 (1987)

13

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987

NO.

CARLOS NATES, Petitioner,

vs.

UNITED STATES OF AMERICA, Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Petitioner, Carlos Nates,

prays that a writ of certiorari issue to

review the judement of the United States

Court of Appeals for the Ninth Circuit

entered in the above-entitled case on

October 30, 1987. A petition for re-

hearing was denied by the Court of Appeals

on January 21, 1988.

OPINIONS BELOW

The Opinion of the United States

Court of Appeals for the Ninth Circuit is

reported and is attached as Appendix "A"

hereto. The order denying the petition

for rehearing is attached as Appendix

“— 8

JURISDICTION

The judgment of the United States

Court of Appeals for the Ninth Circuit

was entered on October 30, 1987. The order

denying a rehearing was entered on

January 21, 1988. The jurisdiction of

this Court is invoked under 28 U.S.C.,

section 1254(1) and (2).

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Fourth Amendment, United

States Constitution, provides:

The right of the people

to be secure in their persons,

houses, papers, and effects,

against unreasonable searches

-2-

and seizures, shall not be violated,

and no Warrants shall issue, but

upon probable cause, supported by

Oath or affirmation, and parti-

cularly describing the place to

be searched, and the persons or

things to be seized.

Title 31 U.S.C., section 5317 pro-

vides:

Searches at border. -- For

purposes of ensuring compliance

with the requirements of section

5316, a customs officer may stop

and search, at the border and

without a search warrant, any

vehicle, vessel, aircraft, or

other conveyance, any envelope

or other container, and any

persons entering or departing

from the United States.

STATEMENT OF THE FACTS

Following the district court's

denial of his motion to suppress evidence,

Carlos Nates entered a conditional guilty

plea under Federal Rules of Criminal

Procedure, Rule ll(a) (2) to one count of

making a false statement to a government

agency in violation of 18 U.S.C. section

1001 and one count of failing to report

-3-

transporting currency in violation of

31 U.S.C. #ection $316 (a) (1) (A)... The

court sentenced him to eighteen months

imprisonment.

United States customs agent Ausalon

Miramontes was on duty at Los Angeles

International Airport on April 29, 1986

visually inspecting baggage checked onto

Avianca Airlines flight 81 bound for

Bogota, Colombia. He was seeking to

discover baggage carrying large amounts

of undeclared currency from the United

States. Miramontes selected Nates' two

bags for inspection because they were new

(one still bearing a price tag), had no

passenger name tag, and were unusually

heavy. He opened the bag with the price

tag, discovered $2,000 in a towelettes

container, and noticed a portable electric

Organ smelling strongly of glue. Alerted

customs agents stopped Nates as he was

-4-

about to board flight 81, matched his

baggage claim number to the baggage

Miramontes inspected, and explained the

currency reporting law to him in English

and Spanish. Nates reported that he was

not transporting more than $2,000 out of

the country. The agents brought Nates

to the customs office where he claimed

the suitcases. In Nates' presenc

Miramontes continued to search the baggage.

He removed the rear panel of the electric

organ and discovered $105,000. The agents

also found $2,769 in Nates' possession

for a total sum of $109,769.

Nates moved to suppress the evidence

on the grounds that the search violated

section 5317(b) and the Fourth Amendment.

The district court denied the motion.

REASON FOR GRANTING THIS PETITION

I

THE BORDER SEARCH EXCEPTION TO

THE SEARCH WARRANT REQUIREMENT

DOES NOT APPLY TO TRAVELERS

WHO ARE LEAVING THE UNITED STATES

It has long been held that searches

at international borders require neither

a warrant nor probable cause. United

States v. Ramsey, 431 U.S. 606, 616-617

(1976); Carroll v. United States, 267

U.S. 132, 153-154 (1925). The border

search exception to the warrant require-

ment of the Fourth Amendment has its

Origin in Boyd v. United States, 116 U.S.

616 (1886) where the Court noted that two

months before the First Congress proposed

the Bill of Rights, including the Fourth

Amendment, it had enacted the Nation's

first customs statute. The statute

granted customs officials authority to

"

search "any ship or vessel, in which they

-6-

rt

G4

requirements. See also, United States v.

Montoya de Hernandez, 473 U.S. 531 (1985);

United States v. Brignoni-Ponce, 422 U.S.

873 (1975); Almeida-Sanchez v. United

States, 413 U.S. 266 (1973).

All prior decisions by this Court

concerning the border search exception

have involved the search of persons

entering the United States. No decision

by this Court has ever extended the border

search exception to the Fourth Amendment

to travelers leavine the United States.

4 Z

Only in dicta in California Bankers

Association v. Schultz, 416 U.S. 21, 63

(1974) has this Court spoke of the border

Search exception in the context of persons

leaving the country. In Shultz, the Court

Stated that "if those entering and leaving

the country may be examined as to their

belongings and effects," it follows that

no greater intrusion occurs when the

ae

government requires a bank to maintain

records regarding itS customers. One

commentator has noted that the Court's

statement was totally superfluous to the

decision in that case. W. Ringle, Searches,

Seizures, Arrests and Confessions, Sec.

18.2te) ,; p.i5<16 (i987).

The Petitioner's case is one of a

long line of Ninth Circuit and Eleventh

Circuit cases that have applied the border

search exception to persons leaving the

country. See, United States v. Hernandez-

salazar, $13 F.2d i%26 (lith Cir. 1987);

United States v. Duncan, 693 F.2d 971,

977 (9th Cir. 1982); United States v.

Stanley, 545 F.2d 661, 665-667 (9th Cir.

1976). As the dissenting opinion in

Petitioner's case points out, these searches

are carried out without any limitation and

are conducted in secret without the know-

ledge or consent of the international

-9-

traveler. As Justice Kozinsky points out:

A secret search is, perhaps, the

hardest to justify in light of our

shared notions of individual

privacy and personal autonomy.

Clandestine searches are, by and

large, foreign to our way of

thinking because of their interent

intrusiveness, the heightened risk

of abuse they pose, and because they

are inconsistent with principles of

openness and fair play we normally

expect of our public officials.

The notion that, while an individual

is temporarily separated from his

property, law enforcement officers

are rummaging through it at will,

is difficult to square with con-

temporary notions of what is

reasonable governmental conduct.

(Slip Opinion p. 10-11)

Congress has enacted 31 U.S.C. section

5317 which has eliminated entirely all

Fourth Amendment limitations on customs

searches of travelers leaving the United

States. We are told that the Government

has certain law enforcement interests in

insuring that United States currency is

not improperly exported from the United

States. See, United States v. Des Jardins,

-j10-

747 F. 24-499, 3064 (Sth Cir. 1984).

However, the United States Supreme Court

in Mincey v. Arizona, 437 U.S. 385, 393

(1978) has stated that "the mere fact

that law enforcement may be made more

efficient can never by itself justify

disregard of the Fourth Amendment." And

in Justice Marshal's dissenting opinion

in United States v. Ross, 102 S.Ct.2157,

2181 n.13 (1982), it is stated "Of course,

efficiency and promptness can never be

Substituted for due process and adherence

to the Constitution. Is not a dictator-

Ship the most efficient form of government?”

Thus, it 1S never any answer to state

that the government needs to conduct

warrantless and suspicionless searches in

order to enforce the criminal laws. The

purpose of the Fourth Amendment is to

gQGuarantee the right of every citizen to

be free from indiscriminate and unreasonable

-ljl-

searches and seizures,

Different policy considerations exist

in examining the import versus the export

search. An import search is carried out

to protect the integrity of the country's

border. An export search cannot be based

on this concept because the department

person or good originates from within the

country itself. A person originating from

within the country certainly has Fourth

Amendment protections while he remains

within the country. Those protection

W

Should not be shed merely because he

decides to leave the continental United

States. Secondly, an import search is

conducted to ensure that contraband 1s

seized before entry so that it will not

affect the citizenry. Goods being ex-

ported, however, obviously do not pose

the same threat. Therefore, the govern-

mental interest in conducting export

~l12-

searches cannot be the same. Thirdly,

import searches serve to ensure that the

government is receiving the duty to which

it is entitled on imported goods. Since

Outgoing goods are not subject to duty,

the governmental interest, again, is

different. As one author notes, "there

is no justification for including export

searches within the border search except-

ion, the historical basis for accepting

incoming border searches is in no way

applicable to export searches." Note,

Beyond the Border of Reasonableness:

x

Exports, Imports and the Border Search

Exception, 11 Hofstra L.Rev.733 (1983).

Petitioner urges the Court to grant

certiorari in this case for the additional

reason of reviewing the constitutionality

of 31 U.S.C. section 5317. The Petitioner

contends that section 5317(b) is un-

removes all Fourth Amendment protection

from government searches of outbound

baggage of international travelers. See

also, Torres v. Puerto Rico, 442 U.S. 465

(1979). In the Torres case, the Court

held that the search at the Puerto Rico

airport of luggage of passengers arriving

from the United States by

police acting

without a warrant or probable cause, as

a | —_, = sam) } e¢ }

ul search that violated the Fourth

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prosecuror Ss argument tnat warrantless

Puerto Rico's position

bolls down to a contention

that its law enforcement

problems are so pressing that

it should be granted an

exemption from the usual

requirements of the Fourth

Amendment. Although we have

recognized exceptions to the

Warrant requirement when

specific circumstances render

compliance impracticable, we

have not dispensed with the

fundamental Fourth Amendment

prohibition against unreason-

able searches and seizures

Simply because of a general-

ized urgency of law enforcement.

(442 U.S. at 473-474)

Based upon the foregoing, Petitioner

that this petition be granted.

aig ) ¢ {Weenie

APPENDIX "A"

————————

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT :

UNITED STATES OF AMERICA, |

Plaintiff-Appellee, No. 86-5247

v. , CR-86-430 JSL

CARLOS NATES, OPINION

Defendant-Appellant.

Submitted August 4, 1987*

Pasadena, California

Filed October 30, 1987

Before: Charles Wiggins, Alex Kozinski and

Diarmuid F. O’Scannlain, Circuit Judges.

Opinion by Judge Wiggins; Dissent by Judge Kozinski

Appeal from the United States District Cour

for the Central District of California

J. Spencer Letts, District Judge, Presiding

SUMMARY

Search and Seizure/Constitutiona!l Law

Appeal from conviction. Affirmed.

A United States customs agent was visually inspecting bag-

*The panel finds this case appropriate for submission without oral argu-

ment pursuant to Ninth Circuit Rule 34-4 and Fed. R. App. P. 34(a)

-la-

2 UNITED STATES ¥. NaTES

gage checked onto Avianca Airlines for a flight bound for

Columbia. The agent selected appellant Nates bags for

inspection based on objective criteria and discovered

$105,000. Nates was convicted of failing to report transport-

ing currency. He moved to suppress the evidence on the

grounds that the search violated 31 U.S.C. § 5317(b) and the

fourth amendment. The district court denied the motion.

[1] Nates claims that section 5317(b) is unconstitutional

because travelers who are leaving the United States may not

be searched without a search warrant or probable cause. The

border search exception to the fourth amendment. which

allows a search to be initiated without a warrant. probable

cause or articulable suspicion. applies to exit searches. [2] The

Supreme Court has not construed the “reasonable cause to

believe” standard of section 531 7(b). It has construed another

Statute that mandates a “reasonable cause to suspect” stan-

dard in regulating customs searches. The similar phraseology

and similar conteat justify analogizing to the section. [3] This

circuit has equated the “reasonable cause to Suspect” stan-

dard under section 482 with “reasonable suspicion”, and has

defined the test as one milder than that of “probable cause”.

Thus, courts have held that external characteristics of a con-

tainer from a suspect country. alone, are sufficient to establish

reasonable cause under section 482. [4] Section 482 cases pro-

vide sufficiently analogous precedent.

The dissent argues that the court stops short in failing to

consider the reasonableness of the search, a necessary further

inquiry when defendant has challenged the search on fourth

amendment grounds.

COUNSEL

Duane J. Deskins and Carolyn J. Kubota, Los Angeles, Call-

fornia, for the plaintiff-appellee.

-2a-

UNitED States v. Nates 3

Joseph T. Vodnoy. Los Angeles, California, for the

defendant-appellant.

OPINION

WIGGINS, Circuit Judge:

Following the district court’s denial of his motion to sup-

press evidence, Carlos Nates entered a conditional guilty plea

under Fed. R. Crim. P. 1 1(a)(2) to one count of making a false

Slatement to a government agency in violation of 1% U.S.C.

§ 1001 and one count of failing to report transporting cur-

rency in violation of 31 U.S.C. § 5316(a)(1)(A). The cour

sentenced him to eighteen months imprisonment. Nates

appeals his conviction and sentence on the grounds that: (1)

31 U.S.C. § 5317(b) (Supp. III 1985) [hereinafter § 531 7(b)]

(current version at 31 U.S.C.A. § 5317(b) (West Supp. 1987))

violates the fourth amendment of the Constitution by author-

izing unreasonable searches and seizures; and (2) the district

court erred in finding the customs officer had reasonable

cause to search his luggage undgr § 5317(b). We athrm.

FACTS

United States customs agent Ausalon Miramontes was on

duty at Los Angeles International Airport on April 29, 1986

visually inspecting baggage checked onto Avianca Airlines

flight 8! bound for Bogota, Colombia. He was seeking to dis-

cover baggage carrying large amounts of undeclared currency

from the United States. Miramontes selected Nates’ iwo bags

for inspection because they were new (one still bearing a price

lug), had no passenger name tag. and were unusually heavy

He opened the bag with the price tag. discovered $2.U000 in a

lowelettes container, and noticed a portable electric organ

smelling strongly of glue. Alerted customs agents stopped

Nates as he was about to board flight 81. matched his baggage

-3a-

4 UNITED STATES \. NATES

claim number to the baggage Miramontes inspected. and

explained the currency reporting law to him in English and

Spanish. Nates reported that he was not transporting more

than $2,000 out of the country. The agents brought Nates to

the customs office where he claimed the suitcases. In Nates’

presence Miramontes continued to search the baggage. He

removed the rear panel of the electric organ and discovered

$105,000. The agents also found $2,769 in Nates’ possession

for a total sum of $109,769.

Nates moved to suppress the evidence on the grounds that

the search violated § 5317(b) and the fourth amendment. The

district court denied the motion ruling that the customs

agents had reasonable suspicion to inspect the luggage as

required under § 531 7(b)

DISCUSSION

I. Constitutionality of § $317(b)

Jt} Nates claims that § $31 7(b) is unconstitutional because

travelers who are leaving the United States may not be

seurched without a search warrant or probable cuuse. This as

a question of law. which we review de novo. United States i

MceConney, 728 F.2d 1198. 1201 (9th Cir.) (en bane). cers

denied, 469 U.S. 824 (1984). Miramontes searched Nates’

luggage under authority of § §317(b) which stated at the time:

A customs officer may stop and search, without a

search warrant, a vehicle. vessel, aircraft. or other

conveyance, envelope or other container. or person

entering or departing trom the United States with

respect to which or whom the officer has reasonable

cause to believe there 1s a monetary instrument

being transported in violation of section $316 of this

title.

Section 5316 requires persons transporting more than

$10,000 in currency into or outside of the United States to

-

UNitep States \. NatTes 5

report the currency to customs officials. Although the Ninth

Circuit has not eapressly addressed the constitutionality of

§ 5317(b). prior precedent eflectively forecloses the issue. The

border search ecaception to the fourth amendment. which

allows a search to be initiated without a warrant. probable

cause or articulable suspicion. applies to exit searches. United

States v. Whiting, 781 F.2d 692, 695 (9th Cir. 1986): United

States v. Cardona, 769 F.2d 625, 628 (9th Cir. 1985): United

Siates v. Duncan, 693 F.2d 971, 977 (9th Cir. 1982). cert

denied. 461 U.S. 961 (1983): accord United States v. Udofot.

711 F.2d 831, 839-40 (8th Cir.)}. cert. denied, 464 U.S. 896

(1983); United States v. Ajlouny, 629 F.2d 830, 833-34 (2d

Cir. 1980). cert. denied, 449 U.S. 1111 (1981). The rule has

been criticized in dissent, Duncan, 693 F.2d at 983-84

(Fletcher, J. dissenting), and in dicta, U’nited States v. Des

Jardins, 747 F.2d 499, 503-04 (9th Cir. 1984). modified in

part on other grounds, 772 F.2d 578 (1985), but has not been

overruled. This circuit holds that a suspicionless exit border

search is constitutional. 4 fortiori, § $317(b), requiring rea-

sonable cause. 18 also constitutional.

Il. Reasonable Cause

The government does not argue that it could search Nates’

luggage for unreported currency under the border search

eaception. It conceded below that the statute's “reasonable

cause to believe” standard applies. Reasonable cause is a

miacd question of law and fact. reviewed de novo. Cnited

States v. Kerr, 817 F.2d 1384. 1386 (9th Cir. LYST) United

States v. Most, 789 F.2d 1411. 1415 (9th Cir. 1986)

The government contends the customs agent had reason-

able cause to believe that Nates’ luggage contained unre-

ported currency before he initiated his search. It claims five

factors satisty the requirement: the bags were destined for

Bogota. Colombia. u known source-country for narcotics:

Avianca Airlines flight 81 1s a flight often used bs currency

smugglers: the bags had no name identification tags: the bags

-Sa-

_—

6 UNITED States \. NATES

were brand new and unusually heavy. The disti:ct court

found that the agent did not select al! bags, nor select them

randomly. It also found that the agent used credible profes-

sional judgment based on an evaluation of objective criteria.

i.e. weight and appearance of bags, before selecting any par-

ticular bag to search. The court concluded that the agent had

reasonable cause. .

{2} The Supreme Court has not construed the “reasonable

cause to believe” standard of § 5317(b). It has construed

another statute that mandates a “reasonable cause to suspect”

standard in regulating customs searches, 19 U.S.C. § 482.

which provides in part: “Any [customs agent] may . . . search

any trunk or envelope, wherever found, in which he may have

a reasonable cause to suspect there 1s merchandise which was

imported contrary to law ....” In United States v. Ramsey,

431 U.S. 606, 614 (1977), the Court ruled the customs agent

had “reasonable ‘cause to suspect’ ” that there was contra-

band in a letter under § 482 because it came from Thailand,

was bulky and weighed more than a norma! letter. Though

slightly different (reasonable cause to suspect rather than rea-

sonable cause to believe), the similar phraseology and similar

conteat (customs searches of international mail) justify analo-

gizing to § $317(b). See United States v. Hernandez-Salazur

813 F.2d 1126, 1135 n.32 (1) th Cir. 1987) (one purpose of

§ 5317(b) 1s to allow search for currency in course of search

for contraband under § 482. therefore § 482 can provide guid-

ance on level of suspicion required under § 531 7(b))

{3} This circuit has equated the “reasonable cause to

Suspect” standurd under § 482 with “reasonable suspicion”,

and has defined the test as one milder than that of “probable

cause’. Afost, 789 F.2d at 1415. “To justify a search under

§ 482 on the basis of reasonable suspicion, an official must be

aware of specific articulable facts, together with rational

inferences from those facts, that reasonably warrant suspi-

cion that the package contains illegal material.” Jd In \/osv.

the customs agent had reasonable cause to open a mailed

-6a-

UNITED STATES V. NATES 7

package because it came from a source country, the label

described a cheap article, and it weighed more than eapected.

Id. at 1416; see also United States v. Dubrofsky, 581 F.2d 208,

211 (9th Cir. 1978) (* *[r]easonable cause to suspect’ is a con-

siderably milder standard than probable cause” and it 1s rea-

sonable to suspect that a crated container imported from

Thailand contains narcotics). Thus, the Supreme Court and

this circuit have held that external characteristics of a con-

tainer from a suspect country, alone, are sufficient to establish

reasonable cause under § 482.

[4] The Eleventh Circuit has analyzed § 5317(b)’s reason-

able cause standard when applied to an inspection of luggage.

In Jlernandez-Salazar, 813 F.2d at 1134, the court concluded

that the agent's search of luggage’ under a reasonable suspi-

cion standard was justified because the suitcase was destined

for Colombia on Avianca Airlines, was hard-sided. had no

name identification tag, and was unusually heavy. The rea-

sons cited by the government for using those factors were

that: Avianca’s track record indicated use by currency smug-

glers, hard-sided luggage could often be equipped with false

sides, heavy bags were more likely to have false-sides. and

bags without name tags were suspicious. /d. at 1130 & 1130

n.14.

The factors used in Hernandez-Salazar are similar to those

in Nates’ case; the luggage was bound for Columbia on Avi-

anca airlines, it was new, heavy, and without name tags. We

find the customs agent had reasonable cause to inspect Nates’

luggage. The § 482 cases and //ernandez-Salazar provide suf-

ficiently analogous precedent.’

'The search was conducted, as in this case, outside the presence of any

passengers. Hernandez-Sal/azar, 813 F.2d at 1130 n.15.

*Moreover, Congress has indicated by its latest amendment that it does

nol want more stringent standards applied to exit searches of persons or

luggage than can now be conducted by customs agents in any other context

under the border search exception. The current version of the statute states:

“74a :

8 UNITED STATES V. NaTES

CONCLUSION

Section 5317(b) is constitutional. The customs agent had |

reasonable cause to inspect Nates’ baggage. therefore we

affirm.

KOZINSKI, Circuit Judge, dissenting.

The court correctly applies the law of the circuit pertaining

to border searches and | therefore reluctantly join its

opinion.’ However, the court stops short in failing to consider

the reasonableness of the search. a necessary further inquiry

when defendant has challenged the search on fourth amend-

ment grounds.? Although 3! U.S.C. §5317(b) (Supp. III

1985) authorized the government to search Nates’ luggage

without a warrant or probable cause, the statute did not and

could not exempt the search from the one irreducible require-

ment of the fourth amendment. the requirement of reason-

ableness. New Jersey v. 7. L.O., 469 U.S. 325. 337 (1985): Go-

Bart Importing Co. v. United States, 282 U.S. 344, 387

Searches at border.—For purposes of ensuring compliance with

the requirements of section 5316. a customs officer may stop and

search, at the border and without a search warrant. any vehicle,

vessel, aircraft, or other conveyance, any envelope or other con-

lainer, and any person entering or departing from the United

States.

31 U.S.C.A. § 5317(b)Wesi Supp. 1987).

‘My reluctance is based largely on the misgivings expressed United States

v. Des Jardins, 747 F.2d 499, 503-04 (9th Cir. 1984).

*My colleagues’ failure to address the issue 1s understandable given that

defendant did not raise this precise argument here or below. Nevertheless.

defendant objected te the search on fourth amendment grounds, this makes

the issue One we m2y :hut admittedly need not) address. Our responsibility

to defendant, and to ihe traveling public — the true victim of the search

here — militates in tavor of considering the issue.

-8a-

UNITED States ¥. NATES )

(1931); United States v. Cardona, 769 F.2d 625, 629 (9th Cir.

1985): United States v. Duncan, 693 F.2d 971,977 (Yth Cir.

1982): United States v. Guadalupe-Garza, 421) F.2d 876, 878

(9th Cir. 1970). The record here raises very serious doubts

about whether the search was reasonable. I would therefore

reverse or, at the very least. remand for the district court to

consider the issue.

m , Introduction

What I find intensely disquieting about this case is the thor-

ough. widespread and intrusive search that culminated in

Nates’ arrest. Pursuant to official policy, customs agents

inspecting the luggage on Avianca flight no. 81 selected a

number of suitcases they thought looked suspicious and.

using passkeys. Opened the suitcases and searched through

them. These searches were conducted outside the presence of

the passengers and without their knowledge or consent.

Nates’ suitcase contained an unusually large amount of cur-

rency, which led the officers to confront Nates and. eventu-

ally, arrest him. We therefore know a good deal about this

particular search. What we don’t know much about are the

searches conducted of other people's luggage. except that the

number of other bags opened and searched at that time was

probably on the order of two dozen.’ We also don’t know pre-

cisely how many suitcases are opened and searched every day

without the knowledge or consent of their owners. but the

number appears to be very substantial. In a case recentls

decided by the Eleventh Circuit, the record disclosed that in

a seven-month period during 1985, a single customs agent

3At the suppression hearing, agent Miramontes testified that he searched

the luggage for Avianca flight no. 81 on April 29, 1986, together with three

other ofhcers. He himself examined about twelve pieces of luggage, of

which he opened six. Reporter's Transcript at 18-22. He was not aware of

how many bags his colleagues opened but, presumably, the number was

somewhat similar

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10 UNITED States Vv. NATES

surreptitiously “opened about $0.000 suitcases.” Unied

States v. Hernandez-Salazar, 813 F.2d 1126. 1130n.16 (11th

Cir. 1987): id. at 1139 (Hatchett. J.. dissenting). If this rate ts

typical, it would amount to about 100.000 bags opened per

agent per year. Assuming that the customs service assigns

even a modest number of agents to this task. the number of

Surreplitious intrusions into the property and privacy of tray-

elers is potentially staggering. It is a matter that should give

us serious pause lest we overlook, and impheitly approve.

what may amount to wholesale violations of the fourth

amendment rights of the traveling public.

Discussion

There is no precise formula for what constitutes a reason-

able search under the fourth amendment. The Constitution

strikes a delicate balance between the state’s legitimate inter-

est in detecting and preventing criminal activity and the indi-

vidual’s right to property. privacy and dignity. As the

Supreme Court has often noted:

[What is reasonable depends on the conteat within

which a search takes place. The determination of the

Standard of reasonableness governing any specific

class of searches requires “balancing the need to

Search against the invasion which the search

entails.” Camnura v. Mfunicipal Court, 387 U.S. 323.

536-37 (1967). On one side of the balance are

arrayed the individual's legitimate expectations of

privacy and personal security: on the other. the gov-

ernment’s need for effective methods to deal with

breaches of public order.

T.L.O., 469 U.S. at 337.

A secret search 1s, perhaps. the hardest to justify in light of

our shared notions of individual privacy and personal auton-

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UNITED STATES V. NaATES 1]

omy. Clandestine searches are, by and large. foreign to our

way of thinking because of their inherent intrusiveness. the

heightened risk of abuse they pose. and because they are

inconsistent with principles of openness and fair play we nor-

mally eapect of our public officials. The notion that. while an

individual is temporarily separated from his property. law

enforcement officers are rummaging through it at wili. 1s diff-

cult to square with contemporary notions of what 1s reason-

able governmental conduct.

Because secret searches are so unusual in our national eape-

rience, there is little law on the subject. But such law as there

is reflects our discomfort with such procedures. For example.

the infamous writs of assistance of the eighteenth century.

universally decried as infringements on personal liberties.

nonetheless “required that notice be given belore entry was

made....” 2 W. LaFave. Search and Seizure § 4.8(a). at 27)

(2d ed. 1987) (quoting Note. Announcement in Police Entries,

80 Yale L.J. 139. 145(1970)). More recently, the federal wire-

tap statute, 18 U.S.C. § 2510 et seq., and the Foreign Intelli-

gence Surveillance Act, 50 U.S.C. § 1801 et seq.. allow secret

intrusions into Our privacy Only with great reluctance. for the

most compelling reasons and subject to the closest judicial

scrutiny.” While these statutes have no direct application

here. I believe they fairly reflect our collective discomfort

with surreptitious governmental intrusions into Our privacy.

“The Foreign Intelligence Surveillance Act, for example. provides that

the President, through the Attorney General, may authorize wiretaps with-

out a court order in limited circumstances involving foreign communica-

tions. 50 U.S.C. §§ 1802(a)(1) (1982 & Supp. Ill 1985). In addition, the

Attorney General may authorize wiretaps for a set time if he simulta-

neously gives notice to the specially-constituted count. Jd. at 180S(e). Oth-

erwise, wiretaps must be approved by that court in advance. id. § 1803, and

only upon a proper showing of necessity and subject to appropriate minimi-

zalion procedures designed to protect the privacy of innocent third parties

whose conversations are Overheard by authorized surveillance. /d

§§ 1801(h), 1804-06. Moreover, even if the surveillance 1s authorized by the

court, a person aggrieved by the wiretap may challenge it ina United States

district court. See United States v. Ou, 827 F.2d 473, 476 (9th Cir. 1987)

-lla-

}? UNtiiep Sivatiss. Natis

——— pat Meno

Il.

A. There are three aspects of the search here in question

that, alone or in combination, render it unreasonable under

the fourth amendment. Firs?, the search was conducted with-

out notice and therefore the passengers on Avianca flight No.

81 were “not given a reasonable opportunity to surrender

their privacy voluntarily.” 2 W. LaFave, Search & Seizure

§ 4.8(d)-(f), at 278 (2d ed. 1987) (“LaFave”). The requirement

that notice be given before a search is conducted ts of ancient

origin® and has become deeply rooted in our jurisprudence.*

While a search conducted without notice may nonetheless be

proper, notice clearly bears on the question of reasonable-

ness. See, e.g, United States v. Valenzuela, §96 F.2d 824. 830

(9th Cir.), cert. denied. sub nom., Lizarraga v. United States.

441 U.S. 965 (1979). In Berger v. New York, 388 US. 4]

(1967), for example. the Court struck down a state eas esdrop-

ping Statute on the grounds, inter alia, that it “has no require-

ment for notice ... nor does it overcome this defect by

requiring some showing of special facts.” Jd. at 60. If there 1s

no persuasive justification for failing to give notice. such fail-

ure can itsell render the search unreasonable. See venerally 2

W. LaFave. Search and Seizure § 4.8(d)-(f). at 280-87(2d ed

1987).

* In all cases where the King 18 a party, the shenff (if the doors be

not open) may break the party's house, . . . if otherwise he cannot

enter. But before he breaks it, he ought to signify the cause of his

coming. and to make request to open the doors

Semayne'’s Case, § Coke Yla, Ib, 77 Lng Rep. 185, 186-37 (KB 1603)

*in Sabbath v. United States, 391 U.S. $85, $90 (1968). a case which

involved an interpretation of the federal notice statute, 18 USC. § 3109.

noted the “values inherent in” the notice requirement, values thal center

around the individual's interest in privacy and security from government

mirusion. See also Miller v. United States. 357 U.S. 301 (1958). Munoz

United States, 325 F.2d 23 (9th Cir. 1963). See generally 2 W. LaFave.

Search & Seizure. § 4.8(b). at 273-77 (2d ed. 1987)

-l2a-

UNITED STATES Vv. NaTES 13

Here, there is no indication that signs were posted or that

passengers were otherwise advised that agents would be rum-

maging through their personal possessions.’ Moreover,

because, as Judge Norris noted in Des Jardins, “exit searches

are quite uncommon” in the United States, 747 F.2d at 504.

passengers have no expectation or commer. understanding

that they may suffer a fairly serious intrusion into their pri-

vacy as a condition for leaving the country. Indeed, given the

above-board procedure employed in entry searches. where-

passengers are required to line up with their luggage for spot-

checks by customs agents, travelers can reasonably infer from

the absence of such procedure that no exit checks are con-

ducted. My guess 1s that most passengers would be shocked to

learn that, as they are waiting to board the plane. faceless

bureaucrats are breaking into their luggage and pawing

through it at will.

I suppose it 1s possible that there were good reasons for

searching the luggage on Avianca flight No. 81 without notice

to the passengers. But any such reason would have to be care-

ful'y documented and would probably only be valid as to that

flight. | rather doubt that the policy of secret searches can be

justified in the abstract to cover all passengers on all flights

leaving the United States. In any event, justincation there

would have to be: | don’t think that the practice of searching

luggage without notice is so inherently reasonable that we

could approve it without justification.

Second, the search was conducted outside the passengers’

presence. This infringes a variety of privacy and property

interests. Luggage is the little bit of home we take with us

when we travel. As the Supreme Court has noted.

?While the record 1s not entirely clear on this point. the absence of notice

can be inferred from the fact that Nates was not aware that his luggage had

been searched when he was confronted by the customs agents. If there 1s a

doubt on this point, 11 could easily by resolved on remand.

-l3a-

14 UNITED STATES Vv, NATES

searches of closed items of personal luggage are

intrusions on protected privacy interests. for “the

Fourth Amendment provides nrotection to the

owner of every container that conceals its contents

from plain view.” United States v. Ross, 456 U.S.

798, 822-823 (1982).

T.L.O., 469 U.S. at 337. Ina very real sense. luggage is as pri-

vate — and as vulnerable to intrusion — as is our place of

abode. See United States v. Chadwick, 433 U.S. 1. 11. 13

(1977); cf Arkansas v. Sanders, 442 U.S. 753, 764 (1979).

Passengers often carry with them “such ... highly personal

items as photographs, letters, and diaries.” 7.1.0. 469 U.S

at 33, that they Would be uncomfortable to have others gawk

at. If the search 1s conducted in the passengers’ presence. they

may be able to cover up or partially conceal such items to

avoid unwarranted scrutiny. When the search 1s conducted in

secret, the passengers have no way of avoiding unjustihed

examination of private items that may become the butt ot!

jokes or allusions by the personnel conducting the search

On a more mundane level, when the search 1s conducted

outside the passengers’ presence, they are unable to protect

the physical security or integrity of their possessions. Thus,

bags might be damaged when they are forced open, or their

contents might be broken, lost or stolen. When passengers are

present during the search, they can minimize the risk by

opening suitcases themselves and alerting the agents about

any items that may be subject to damage. Also, they can wit-

ness any mishap and hold the agent responsible. Agents, for

their part, may be more careful if passengers are watching

While we trust our federal agents to be careful and honest, we

also know that perfection 1s rare to find and difficult to main-

tain. The fact of the matter is, when agents secretly break into

people's suitcases and search through them by the hundreds

of thousands, occasionally something will go wrong — some-

one will be tempted, or careless. or even do something that

7 A

“i 4e>

UNITED STa4TES Vv. NATES 15

seems perfectly reasonable yet causes damage. such as open-

ing a canister of undeveloped film.

Finally, there is a separate intrusion because passengers

whose luggage 1s searched are generally never told about it.

This means that when something is lost, stolen, mislaid or

broken, the passenger will be completely mystified as to what

happened. He will have no idea where to inquire as to its

whereabouts or demand compensation. He may spend count-

less hours looking for the item in places he might have left it,

harassing people who might have taken it, never suspecting

that a government agent used a passkey to go through his lug-

gage. Being subject to a secret search and then never being

told about it 1s something | think most people would find

especially offensive, and this then bears on the reasonableness

of the procedure employed by the government.

B.

All of this might be beside the point if there were no reason-

ably available alternatives. But there clearly are. For one

thing. there 1s no apparent reason why passengers cannot be

advised that their luggage may or will be searched before it

leaves the country. Customs agents put up signs and make

public announcements advising passengers of their duly to

report currency over $5.000. The same methods could be

employed to advise passengers that government agents might

be searching through their luggage before it is put on the

plane. Alternatively, agents might first inspect the luggage

and identify pieces that look suspicious. Passengers could

then be reunited with their luggage and given an opportunity

to open the suitcases for inspection.® Finally, if it turns out

*This would no doubt prevent customs agents from trapping suspects

into false statements. as they did here. But | am not convinced that putting

suspects in a position where they are likely to commit a separate offense is

a governmental! interest that Ought to carry much weight with us in deter-

mining reasonableness

-15a-

16 UNITED Statesy. Nates

that the search must be conducted secretly. there 1s no sell-

evident reason why passengers whose luggage has been

searched cannot be advised of the fact afterward and given a

chance to make sure everything is in order.

One simple way of handling the matter would be for pas-

sengers to exit the country through customs — with occa-

sional spot checks — much as they do when entering. A

number of other countries have routine exit checks and, while

somewhat intrusive, they certainly seem like a straightfor-

ward and effective way of implementing the congressional

mandate embodied in 31 U.S.C. § $317 (b).

To be sure. from the point of view of law enforcement

authorities, such a procedure may have disadvantages. But

the same can be said of the Bill of Rights. As Justice Black

noted, |

[t]he concept that the Bill of Rights and other consti-

tutional protections against arbitrary government

are inoperative when they become inconvenient or

when eapediency dictates otherwise is a very danger-

ous doctrine and if allowed to flourish would destroy

the benefit of a written Constitution and undermine

the basis of our Government.

Reid v. Covert, 354 U.S. 1.14 (1957) (plurality opinion). The

relevant question 1s not whether law enforcement officers

save selected the best available method but whether alterna-

tives are available that more equitably balance the interests of

law enforcement with the individual rights of citizens. C7/

Florida v. Rover, 460 U.S. 491. 500 (1983) (“the investigative

methods employed should be the least intrusive means reu-

sonably available”). If reasonable alternatives are available.

that alone renders the government's actions unreasonable

and therefore unconstitutional.’

*The Supreme Coun’s opimion in United States v. Ramsey. 431 U.S. 600

(1977), does not render the search here per se constituuional Justice Powell

-l6a-

UNITED Siales ¥. NATES 17

One final consideration. The alternatives | have suggested

would give eait searches far more visibility than they now

receive. This would expose the practice to the political pro-

cess, an important safeguard against arbitrary government

action. I, for one. would feel far more comfortable with the

procedure here employed if | were convinced that the public

was aware of it and generally approved. It may be that the

government's reluctance to advise passengers of these

searches is motivated in part by a fear that. if widely known.

the practice would not be tolerated. 1am reluctant to help the

government maintain this secret.

Conclusion

Many decisions of this court and the Supreme Court have

given force to Justice Brandeis’ declaration in Olmstead v.

United States, 277 U.S. 438 (1928), that the framers of the

Constitution “conterred. as against the Government. the

right to be let alone — the most comprehensive of rights and

the right most valued by civilized men.” /d. at 478 (Brandeis.

J.. dissenting). “To protect that right.” declared Brandeis.

“every unjustifiable intrusion by the Government upon the

privacy of the individual. whatever the means employed.

must be deemed a violation of the Fourth Amendment.” /d

expressed the limited precedental effect of the majority opinion: “On the

understanding thai the precedental effect of today’s decision does not go

beyond the validity of mail searches at the border pursuant to the Statule.

I... join the opinion of the Court.” /d. at 625. Ramsey deals with materials

coming into the country, a point emphasized repeatedly by the Coun. /d.

at 612, 616, 619, 620, 623. The fact bears heavily on people's expectation

that the materials will be subject to search. Moreover, Raynsey involved a

search (but not reading) of the contents of envelopes. The likelihood of

intrusion 1s far less where one 1s dealing with the nonwritten contents of an

envelope then with the contents of a suitcase. Finally, in Ramsey there were

no reasonably available alternatives. Upon entering the country, the mai!

was searched at the General! Post Office in New York City, far from its ult-

mate destination. /d. at 609 n.2. Obtaining the consent or participation of

the addressee would have been quite burdensome.

=i 7a>

18 UNiiti Strauss. Nats

This fundamental principle is of no less force when it 1s the

individual's personal luggage that is at issue. For it 1s clear

that the individual's realm of privacy includes his possessions

as well as his person, his duffle bag as well as his dwelling. See

e.g., Chadwick, 433 U.S. at 11, 13.

The search here did not comport with these principles. |

must therefore respectfully dissent.

-18a-

B

APPENDIX "B"

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 86-5247

DC No. CR 86-430-JSL

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

ORDE R

Before WIGGINS, O'SCANNLAIN, KOZINSKI, -

Circuit Judges

[Filed Jan. 21, 1988]

Judges Wiggins and O'Scannlain have

voted to deny the petition for rehearing

and to reject the suggestion for rehear-

ing en banc. Judge Kozinski has voted to

grant the petition for rehearing and to

reject the suggestion for rehearing en

banc.

The full court has been advised of

the suggestion for rehearing en banc and

no active judge has requested a vote on

whether to rehear the matter en banc.

(Fed. R. App. P. 35.)

The petition for rehearing is

denied and the suggestion for rehearing

en banc is rejected.

=2b=-