U.S. v. Flores-Montano, Manuel (03/30/2004)

Questions presented: Whether, under the 4th Amendment, customs officers at the international border must have reasonable suspicion in order to remove, disassemble, and search a vehicle's gas tank for contraband?

BY MANDY MORGAN, MEDILL NEWS SERVICE

It was his turn. Manuel Flores-Montano, a Mexican in his late 30s, slowly drove his old station wagon up to the U.S. Customs inspection window.

On this February afternoon in 2002, Flores-Montano was on the verge of making a lot of money if he could pass through the Otay Mesa, Calif. port of entry without getting caught.

When the border inspector asked him routine questions about his visit to Mexico, Flores-Montano avoided eye contact.

The inspector noticed that Flores-Montanos hand was trembling as he handed over his permanent resident card and California drivers license.

Inspector Visente Garcia tapped the 1987 Ford Taurus gas tank with his screwdriver.

"[I] noticed that the fuel tank sounded solid," said Garcia in a California district court declaration. "I was informed that a narcotics detector dog had alerted to the vehicle."

Twenty minutes after approaching the border, Flores-Montano was taken into a security office while his car was driven to a secondary inspection lot.

Another border inspector called a contract mechanic, who showed up half an hour later.

The mechanic raised the car on a lift in order to unscrew the bolts and loosen the straps that held the gas tank to the car. He also disconnected some hoses and electrical connections.

Fifteen minutes later, the fuel tank was lowered and the second inspector began to hammer at hardened putty spread across the tank. Underneath a thin piece of metal, the inspector found 37 kilograms of marijuana bricks wrapped with tape and cellophane.

Flores-Montano was arrested and put in jail. On Feb. 27, 2002, he was charged with importing and possessing the marijuana with intent to distribute.

Flores-Montano moved in federal court in the Southern District of California to suppress the evidence taken from his gas tank. Such an intrusive search, he argued, was not routine, and therefore required the government to have reasonable suspicion.

The government countered that it did not need to prove it had reasonable suspicion.

In June 2002, the district court granted Flores-Montanos request to suppress the evidence. He was freed and went home to Los Angeles.

Because Flores-Montanos case was so similar to another case decided in 2002 by the 9th Circuit Court of Appeals, the 9th Circuit did not issue an opinion when it affirmed Flores-Montanos right to suppress evidence.

It simply referred anyone seeking an explanation to read the courts decision in U.S. v. Molina-Tarazon.

"While the Fourth Amendment generally prohibits warrantless searches without probable cause, it is subject to a few narrow and well-delineated exceptions," wrote Judge Alex Kozinski in his majority opinion on Molina-Tarazon.

"The border search exception therefore authorizes only routine searches É In order to conduct a search that goes beyond the routine, an inspector must have a reasonable suspicion that the person to be searched may be carrying contraband."

A non-routine search is more intrusive than a routine search, and involves use of force, risk of harm and a diminished sense of security, Kozinski reasoned.

Removing a gas tank involves all of these factors, he wrote. A mechanic uses tools and force to disassemble a fuel tank. Mistakes made when replacing the tank could harm the driver. Finally, drivers cannot feel secure after a mechanic they do not know has disassembled and reassembled their car.

In his concurring opinion, Judge Melvin Brunetti agreed that some searches are so invasive as to require reasonable suspicion. However, he wrote, there is a distinction between removing car parts and destroying them for inspection.

"[T]he use of force that somehow alters or damages the vehicle is far more intrusive than the simple disassembly and reassembly that occurred here," Brunetti wrote. "The risk of negligent reassembly or replacement may create fear that would never be overcome in an circumstances, including the simplest dismantlement."

But what the government is seeking in Flores-Montanos case is the ability to conduct suspicionless searches of vehicles.

"The court of appeals holding deprives Customs officers of an essential tool to protect against the smuggling of drugs, persons, weapons, and other contraband," wrote U.S. Solicitor General Theodore B. Olson in his petition to the Supreme Court.

"In recent years, seizures from gas tanks have accounted for 25 percent of all drug seizures along the Southern California border."

The Supreme Court has already decided that intrusive border searches of people (e.g., a strip search) require reasonable suspicion.

The Court is being asked to review whether the 9th Circuit is right in saying : "We hold É that some searches of inanimate objects can be so intrusive as to be considered non-routine.

"Were we to accept this [government] argument, it would mean that customs agents at the border could, acting on no suspicion, order a car disassembled down to the last o-ring, and hand it back to the owner in a large box," Kozinski wrote for the 9th Circuit.

John Lemon, one of Flores-Montanos attorneys, scoffs at the governments insistence that suspicionless searches are essential for preventing terrorism and an increase in gas tank smuggling.

"We're going to solve the worlds problems by cutting taxes and referring back to Sept. 11," Lemon joked. "They haven't found anything ever relating to terrorism on a gas tank. How much unfettered power do we want to give to the government? Do we go to the point where they can destroy your belongings?"

Steve Hubachek, Flores-Montanos appeals attorney, argues that border inspectors can and have been successfully establishing reasonable suspicion with a host of tools.

"There's nothing to stop the people at the border from using dogs, fiberoptic scopes [and] density busters," Hubachek said. "They can tell by knocking on the gas tank. There are a million things they can do.""

The government could have proved it had more than reasonable suspicion to search Flores-Montanos car because of an alerted narcotics dog, a solid-sounding tank and Flores-Montanos nervous behavior, Hubachek argues. The government could have won based on this evidence, just as it did in Molina-Tarazons case.

According to Lemon, the government voluntarily lost the case, hoping that a victorious appeal in the Supreme Court would allow suspicionless searches of inanimate objects such as cars.

On Oct. 14, 2003, the Supreme Court accepted to review the case and allowed Flores-Montano to have his case heard without costs.

"This case has been cherry-picked to go to the Supreme Court," Lemon said. "They [the government] artificially raised the issue."

Lemon added that he and the government worked out a deal to keep his client out of jail during the appeal process. If he ultimately loses, it is likely Flores-Montano will be deported to Mexico.

On March 30, 2004, the Court unanimously reversed, holding that such routine border searches do not require reasonable suspicion.

"While the interference with a motorists possessory interest is not insignificant when the Government removes, disassembles, and reassembles his gas tank, it nevertheless is justified by the Governments paramount interest in protecting the border," wrote Chief Justice William Rehnquist for the Court. "While it may be true that some searches of property are so destructive as to require a different result, this was not one of them."

Justice Stephen Breyer added a one-paragraph concurrence in which he noted that "Customs keeps track of the border searches its agents conduct, including the reasons for the searches," so that concerns about governmental abuse should be minimal. br />