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[Recent Case Description]
2921

C
ONSTITUTIONAL
L
AW
F
OURTH
A
MENDMENT
N
INTH
C
IRCUIT
H
OLDS
T
HAT
D
ESTRUCTIVE
S
EARCH OF
S
PARE
T
IRE
AT
B
ORDER
I
S
C
ONSTITUTIONAL
.

United States v. Cortez-
Rocha, 394 F.3d 1115 (9th Cir. 2005).



In recent years, border search jurisprudence has diverged sharply
from broader Fourth Amendment doctrine as courts have grown in-
creasingly reluctant to apply traditional rules to assess the constitu-
tionality of searches at the border.
1
While general Fourth Amendment
jurisprudence reflects a conscious struggle to strike a balance between
the protection of individual rights and the ability of government offi-
cials to fulfill their responsibilities effectively, border search doctrine
has shifted toward granting greater discretion to officials.
2
Recently, in
United States v. Cortez-Rocha,
3
the Ninth Circuit held that customs
inspectors did not violate a defendants Fourth Amendment rights
when they cut open his spare tire during a border search because the
procedure did not affect the operation or safety of the vehicle.
4
Focus-
ing on the importance of enabling government officials to establish ef-
fective border security measures, the court determined that the ability
of customs officials to perform their duties effectively should not be
hindered by micromanaging courts. Rather than brushing aside the
defendants claim, the Ninth Circuit should have seized the opportu-
nity to impose a balancing test for determining the reasonableness of
destructive border searches, thereby according principled protection to
Fourth Amendment rights in a context where such protection is sorely
needed.
On February 16, 2003, Julio Cortez-Rocha entered the United
States at the Calexico, California, Port of Entry. During a routine in-
spection, a narcotics dog alerted customs inspectors to potential con-
traband in the rear of the vehicle.
5
Officials directed the truck to a
secondary inspection area where a customs inspector examined the ve-
hicles spare tire with a handheld density meter. The high density
reading suggested the presence of contraband. Officials dislodged the
tire from beneath the truck and made an incision in it. Inside they
discovered ten brick-shaped packages containing a total of 42.22 kilo-
grams of marijuana.
6

1
Under the well-established border search exception, neither a warrant nor probable cause
is necessary to justify a search. United States v. Ramsey, 431 U.S. 606, 619 (1977).

2
[T]he Fourth Amendment balance between the interests of the Government and the pri-
vacy right of the individual is . . . struck much more favorably to the Government at the border.
United States v. Montoya de Hernandez, 473 U.S. 531, 53940 (1985) (citations omitted).

3
394 F.3d 1115 (9th Cir. 2005).

4
See id. at 1125.

5
Id. at 1118.

6
Id. 2922

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[Vol. 118:2921

Ten days later, Cortez was charged with importation and posses-
sion of marijuana with intent to distribute.
7
Alleging that his Fourth
Amendment rights had been violated, Cortez filed a motion to sup-
press the evidence. He argued that cutting open his tire exceeded the
parameters of a routine search and accordingly could be constitutional
only if justified by particularized suspicion.
8
The district court denied Cortezs motion, holding that the search
did not violate the Fourth Amendment. Finding that the customs in-
spectors actions constituted a routine border search, the court con-
cluded that particularized suspicion was not required. Cortez pled
guilty to importation of marijuana but preserved the right to appeal
the denial of the motion to suppress.
On appeal, the Ninth Circuit affirmed.
9
Writing for the majority,
Judge Trott held that the search was not so destructive as to be
deemed unreasonable and thus did not require particularized suspi-
cion.
10
Rejecting Cortezs argument that the search was unreasonable
because it was conducted in an offensive manner,
11
the court empha-
sized that the important factor is whether the procedure results in
significant damage to, or destruction of, the vehicle.
12
The court
stressed that disabling the spare tire affected neither the operation nor
the safety of the vehicle,
13
relying heavily on United States v. Flores-
Montano,
14
in which the Supreme Court upheld the constitutionality
of a border search that involved the removal, disassembly, and reas-
sembly of a vehicles fuel tank in the absence of reasonable suspicion.
15
Likening the spare tire to a closed suitcase or other container often
found inside of a vehicle, the court also expressed concern that a rea-
sonable suspicion requirement would hamstring the governments abil-
ity to guard the border by muting the deterrent effect of suspicionless
searches and by encouraging the use of spare tires and other locked
containers to smuggle contraband across the border.
16

Relying on these arguments, the court held that [t]he border justi-
fication simply takes the place of the need in an ordinary case to show
probable cause.
17
Since a magistrate could have issued a warrant au-


7
Id.

8
See id.

9
See id.

10
Id. at 1119. In support of its conclusion, the court cited a case in which a tire was searched
but not destroyed. See id. (citing United States v. Vargas-Castillo, 329 F.3d 715, 722 (9th Cir.
2003)).

11
Id. at 1118.

12
Id. at 111920.

13
See id. at 1120.

14
124 S. Ct. 1582 (2004).

15
Id. at 1587.

16
See Cortez-Rocha, 394 F.3d at 1120.

17
Id. at 1121. 2005]

RECENT CASES

2923
thorizing the incision, the customs agents were free to employ this
method to search Cortezs vehicle for contraband.
The majority further declared that customs officials should be
trusted to perform their duties responsibly: We believe that these em-
ployees and their supervisors and their agencies can be counted on to
be intelligent and respectful . . . as they carry out tasks assigned to
them by Congress.
18
Dismissing concerns about the potential for
abuse of power, the court suggested that the more pressing issue was
whether officials possessed adequate discretion to perform their duties
effectively. Starting from the premise that a sovereign has a broad
right to defend its borders, the court rejected Cortezs proposal for a
least restrictive means test.
19
To buttress its justification for preserv-
ing broad governmental authority in border control, the court quoted
extensively from the 9/11 Commission Reports description of the ap-
prehension of a terrorist at the Canadian border in 1999.
20
Judge Thomas dissented.
21
He criticized the majority for giving
the government carte blanche to search and destroy all personal prop-
erty at the border that does not affect vehicular operation.
22
Seizing
on the Courts suggestion in Flores-Montano that some searches may
be so destructive as to be unreasonable, Judge Thomas advocated a
totality of the circumstances balancing test to determine when a
search is so destructive as to require reasonable suspicion.
23
He rea-
soned that application of a balancing test demonstrated that Cortezs
search required particularized suspicion.
24
Judge Thomas concluded
by observing that, although safeguarding the border was of paramount
concern, protection of Fourth Amendment rights remained a priority,
especially in times of great national distress.
25
Drawing from a particularly muddied area of Fourth Amendment
jurisprudence, neither the majority nor the dissent developed a defen-


18
Id. at 1122. The court further noted that border officials exercise informed judgment as
they work at their difficult tasks, and they do not waste their time on dead-end adventures. It is a
mistake simply to see them as cyborgs from the ready, fire, aim school of job performance. Id.

19
See id. at 1123.

20
See id. at 112325 (quoting N
AT L
C
OMM N ON
T
ERRORIST
A
TTACKS UPON THE
U.S.,
T
HE
9/11

C
OMMISSION
R
EPORT
17679,

38384 (2004)).

21
Id. at 1126 (Thomas, J., dissenting).

22
Id.

23
Id. (noting that the major factors included in this analysis would be the degree of destruc-
tion, the ease with which the damage can be repaired, and the convenience, cost, and efficiency of
nondestructive or less-destructive searching methods that were available at the search site).

24
Id. Judge Thomas further noted the availability of reasonable nondestructive search meth-
ods, including drug dogs and density meters, both of which could have satisfied the suspicion re-
quirement. Id. Rather than arguing the case on reasonable suspicion grounds in the district
court, however, the government had only maintained that reasonable suspicion was not required.
Cortez-Rocha, 394 F.3d at 1118.

25
Id. at 1128 (Thomas, J., dissenting). 2924

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