MARIA E. STRATTON (No. 090986)

Federal Public Defender

KENLY KIYA KATO (No. 189845)

Deputy Federal Public Defender

Suite 1503, United States Courthouse

312 North Spring Street

Los Angeles, California 90012-4758

Telephone (213) 894-4408

Facsimile (213) 894-0081

Attorneys for Defendant

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

xxxxxxxxxxxxxxxxxxx.,

Defendant.

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NO.

NOTICE OF MOTION; MOTION TO SUPPRESS FRUITS OF SEARCH OF WOODEN PLANKS AT THE NOGALES PORT OF ENTRY

Hearing Date: Dec. 7, 1998

Hearing Time: 1:30 p.m.

TO: UNITED STATES ATTORNEY NORA M. MANELLA AND ASSISTANT UNITED STATES ATTORNEY DIANA PAULI:

PLEASE TAKE NOTICE that on December 7, 1998, at 1:30 p.m., or as soon thereafter as counsel may be heard, in the courtroom of the Honorable Stephen V. Wilson, United States District Judge, defendant Jose Manuel xxxxx, will bring on for hearing the following motion:

MOTION

Defendant Jose Manuel xxxxx, by and through his attorney of record, Deputy Federal Public Defender Kenly Kiya Kato, hereby moves this Honorable Court to the fruits of the search of the wooden planks at the Nogales Port of Entry.

This motion is based upon the attached Memorandum of Points and Authorities, Declaration of Counsel, all files and records in this case, and any further evidence as may be adduced at the hearing on this motion.

Respectfully submitted,

MARIA E. STRATTON

Federal Public Defender

DATED: July __, 2000 By______________________________

KENLY KIYA KATO

Deputy Federal Public Defender

MEMORANDUM OF POINTS AND AUTHORITIES

I.

STATEMENT OF FACTS ⁽¹⁾

On October 1, 1998, a trailer loaded with wooden planks crossed the U.S.-Mexico border at the Nogales Port of Entry. The shipping documents which were presented to the U.S. Customs inspectors listed the shipment's destination as 1400 Sportman Drive, Space G, Compton, California (hereinafter "1400 Sportman Drive warehouse"). The listed shipper was Jorge Manuel xxxxx Garcia and the listed consignee was Jose Manuel xxxxx . See Exhibit C, Shipping Documents.

Customs inspectors examined the wooden planks which were being carried in a white trailer. They then drilled holes into several of these wooden planks and discovered a green, vegetable-like material inside the planks. The substance field-tested positive for marijuana. See Exhibit A, Affidavit of U.S. Customs Special Agent Kumar C. Kibble.

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II.

ARGUMENT

A. THE WARRANTLESS SEARCH OF THE TRAILER AT THE NOGALES

PORT OF ENTRY IS PRESUMPTIVELY UNCONSTITUTIONAL.

The Fourth Amendment mandates that every search or seizure by a government agent be reasonable. U.S. Const. Amend. IV. Warrantless searches and seizures are presumed to be unreasonable, and thus, a violation of an individual's Fourth Amendment rights. Katz v. United States, 389 U.S. 347, 357 (1967). While not all warrantless seizures are unlawful, the exceptions to the warrant requirement are "jealously and carefully drawn." Jones v. United States, 357 U.S. 493, 499 (1958).

Furthermore, it is the government that bears the burden of producing evidence to justify the legality of any warrantless search. United States v. Johnson, 936 F.2d 1082, 1084 (9th Cir. 1991) (citations omitted). This includes demonstrating that the search comes within one of the narrow exceptions to the warrant requirement. United States v. Jeffers, 342 U.S. 48, 51 (1951); United States v. Canada, 527 F.2d 1374, 1380 (9th Cir. 1975). Evidence obtained in violation of the Fourth Amendment, as well as "fruits" thereof, must be excluded. Wong Sun v. United States, 371 U.S. 471, 488 (1963)

In the present case, unless the Government can justify the actions of the law enforcement officers, the warrantless searches of the wooden planks at the Nogales Port of Entry must be deemed a violation of Mr. xxxxx's Fourth Amendment rights. Consequently, absent justification, all evidence from the search, as well as fruits thereof, must be suppressed.

B. THE SEARCH OF THE TRAILER AT THE NOGALES PORT OF ENTRY WAS

UNREASONABLE BECAUSE THE CUSTOMS AGENTS DID NOT EMPLOY THE

LEAST INTRUSIVE MEANS TO CONDUCT THE SEARCH.

The government will likely rely upon the border search exception for the warrantless searches of the trailer and wooden planks at the Nogales Port of Entry. Pursuant to the border search exception, customs officials may conduct routine searches at international borders without a warrant. United States v. Ramsey, 431 U.S. 606 (1977); United States v. Most, 789 F.2d 1411 (9th Cir. 1986); United States v. Des Jardins, 747 F.2d 499 (9th Cir. 1984).

1. The Fourth Amendment's Reasonableness Requirement

There are different aspects of the Fourth Amendment's reasonableness requirement. One aspect of this requirement is that there must be a requisite level of suspicion to justify a search; the level of suspicion may vary from probable cause, reasonable suspicion, or in the case of a "routine" border search, no suspicion at all. See generally United States v. Montoya de Hernandez, 473 U.S. 531, 537-41 (1985). Another aspect is the requirement that, in most circumstances, officers obtain a warrant before conducting a search. See United States v. United States District Court, 407 U.S. 297, 315 (1972).

A less commonly considered, but equally important aspect of the Fourth Amendment's reasonableness requirement focuses on the manner in which a search is conducted. The Ninth Circuit has recognized that a search may be rendered unreasonable by the manner in which it is conducted. See United States v. Penn, 647 F.2d 876, 882 (9th Cir. 1980). For example, destruction of property which is not reasonably necessary to effectively execute a search warrant may violate the Fourth Amendment. United States v. Becker, 929 F.2d 442, 446 (9th Cir.), cert. denied, 502 U.S. 861 (1991)(citing Tarpley v. Greene, 684 F.2d 1, 9 (D.C. Cir. 1982); Bergquist v. County of Cochise, 806 F.2d 1364, 1369 (9th Cir. 1986); Tarpley v. Green, 684 F.2d 1, 9 (D.C. Cir. 1982).

The fact that routine border searches require neither probable cause nor search warrants does not mean that this rule barring unnecessary destruction of property does not extend to border searches. Border searches are not permitted despite the fact that they are unreasonable, rather, they are permitted because they are viewed as being, by definition, reasonable under the Fourth Amendment. See Ramsey, 431 U.S. at 619. The mere fact that probable cause and a warrant are not required to conduct a border search does not mean that the requirement that the search be conducted in a reasonable manner is eliminated. In fact, the Supreme Court has recognized that the manner in which a border search is conducted may render it unreasonable. See Ramsey, 431 U.S. at 618, n.18 ("[w]e do not decide whether, and under what circumstances, a border search might be deemed 'unreasonable' because of the particularly offensive manner in which it is carried out").

2. The Least Intrusive Means and the Fourth Amendment

What has been described as the "least intrusive means" or the "least restrictive alternative" rule has been accepted applied by both the Supreme Court and the courts of appeals, including the Ninth Circuit. For example, in Florida v. Royer, 460 U.S. 491 (1983) (plurality opinion), the Court stated:

This much, however, is clear: An investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time. Id. at 500. In Arizona v. Hicks, 480 U.S. 321 (1987), the court stated:

We do not say, of course, that a seizure can

never be justified on less than probable cause.

We have held that it can -- where, for example,

the seizure is minimally intrusive and

operational necessities render it the only

practicable means of detecting certain types of

crime.

Id. at 327. In addition, in United States v. Cameron, 538 F.2d 254 (9th Cir. 1976), the court held that even though there was sufficient cause to believe the defendant was an alimentary canal drug smuggler, the search method, was unreasonable. Id. at 258. Among other reasons, the court noted that "less intrusive means of obtaining the evidence may have been considered." Id.

Finally, in an opinion which, while not controlling, may be looked to for guidance, Judge Kozinski of this circuit has specifically recognized a least intrusive means requirement for border searches. In a dissenting opinion in United States v. Nates, 831 F.2d 860 (9th Cir. 1987), cert. denied, 108 S. Ct. 2845 (1988), ⁽²⁾ Judge Kozinski noted that there were clearly less intrusive alternatives to the method of border search employed in that case, and then concluded with a statement of the least intrusive means rule as a general principle.

The relevant question is not whether law

enforcement officers have selected the best

available method but whether alternatives are

available that more equitably balance the

interests of law enforcement with the individual

rights of citizens. Cf. Florida v. Royer,

460 U.S. 491, 500, 103 S. Ct. 1319, 1325-26,

75 L. Ed. 2d 229 (1983) ("the investigative

methods employed should be the least intrusive

means reasonable available"). If reasonable

alternatives are available, that alone

renders the government's actions unreasonable

and therefore unconstitutional. (Footnote

omitted).

Id. at 868 (Kozinski, J., dissenting).

3. The Manner in Which the Wooden Planks Were Searched

Renders the Search Unreasonable.

In the present case, there appear to have existed at least two less intrusive means than that which was employed by the customs agent, neither of which would have caused any damage whatsoever to the property being searched. First, the government could have used an X-ray machine to examine the wooden planks. This method would have required no physical invasion at all. Alternatively, the government could have permitted a narcotics detection dog to sniff the wooden planks.

By drilling holes in the wooden planks and thereby inflicting permanent damage when less restrictive alternatives were readily available, the customs officials did not use the "least restrictive means" necessary. Consequently, the search of the wooden planks should be deemed unreasonable and consequently, unconstitutional.

C. THE GOVERNMENT MUST ESTABLISH REASONABLE SUSPICION FOR THE

SEARCH BECAUSE THE SEARCH INVOLVED THE DESTRUCTION OF

PERSONAL PROPERTY.

Whether or not a least intrusive means rule must be applied to border searches involving destruction of property, such searches must be limited in at least some fashion. While Customs officials may conduct "routine" border searches without any special showing of cause, United States v. Montoya de Hernandez, 473 U.S. 531, 537-38 (1985); United States v. Ramsey, 431 U.S. 606, 619 (1977)), they may not conduct "non-routine" searches so freely. United States v. Des Jardins, 747 F.2d 499 (9th Cir. 1984). There are limits on the scope and manner of a border search.

While a border search may be initiated in the absence of both a warrant and probable cause, the officer conducting the search must nonetheless proceed in a reasonable manner. Thus, while every person crossing the border may be required to disclose the contents of his or her baggage based on nothing more than the fact that he has crossed the border, more intrusive searches must be supported by some level of suspicion.

Des Jardins, 747 F.2d at 504 (citations omitted). Specifically, non-routine searches must be justified by what has come to be known as "reasonable suspicion." See United States v. Montoya de Hernandez, 473 US at 541; United States v. Robles, 45 F.3d 1, 5 (1st Cir. 1995).

Most of the cases which have addressed the issue of drawing the line between "routine" and "more intrusive" searches have involved the search or seizure of a person. See, e.g., Montoya de Hernandez, 473 U.S. at 541-42 (detention of traveler); United States v. Ek, 676 F.2d 379, 382 (9th Cir. 1982) (X-ray and body cavity searches); United States v. Rodriguez, 592 F.2d 553, 556 (9th Cir. 1979) (strip search). However, nothing in those cases, suggests that the application of a "reasonable suspicion" standard is limited to searches of persons.

In other contexts, destruction of property has been recognized as a factor aggravating the intrusiveness of a search. In United States v. Robles, 45 F.3d 1 (1st Cir. 1995), the court "ha[d] little difficulty concluding that drilling a hole into [a] cylinder was not a routine search," and, indeed, the government conceded the point. Id. at 5. The Fifth Circuit has approved various types of destructive border searches "when the customs agents possess [reasonable] suspicion." United States v. Villabona-Garnica, 63 F.3d 1051 (11th Cir. 1995) (citing cases). ⁽³⁾ See also United States v. Carreon, 872 F.2d 1436, 1440-41 (10th Cir. 1989) (hole drilled in camper wall of pickup truck; issue described as whether Customs inspector had "reasonable suspicion" justifying "extension of his routine border search").

Because the search of the wooden planks involved the destruction of property, the government should be required at the very least to establish "reasonable suspicion" for its search. If the government is unable to make this showing, the search should be deemed unlawful on that ground, and the Court need not reach the least intrusive means issue.

III.

CONCLUSION

Without either a least intrusive means rule or a reasonable suspicion requirement, the United States Customs Service would have carte blanche to destroy or damage personal property with no cause whatsoever, and destruction of property at the border could become standard procedure. Just as travelers are no doubt concerned with the privacy of their person and harmed when forced to strip before a law enforcement officer at the border, travelers and importers concerned with the integrity of their property are harmed when such property is randomly damaged or destroyed by law enforcement officers at the border. Thus, customs officials should be required to 1) employ the least intrusive means in conducting warrantless border searches and 2) articulate a reasonable basis for conducting searches which involve the destruction of property.

Because the agents did not employ the least intrusive means, the search of the wooden planks at the Nogales Port of Entry should be deemed unconstitutional and all fruits of such search must be suppressed. Moreover, regardless of whether the least intrusive means were required, the government should be required to articulate a reasonable suspicion for the search of the wooden planks. In the absence of such reasonable suspicion, the fruits of their search must be suppressed.

Respectfully submitted,

MARIA E. STRATTON

Federal Public Defender

DATED: July __, 2000 By______________________________

KENLY KIYA KATO

Deputy Federal Public Defender

MARIA E. STRATTON (No. 090986)

Federal Public Defender

KENLY KIYA KATO (No. 189845)

Deputy Federal Public Defender

Suite 1503, United States Courthouse

312 North Spring Street

Los Angeles, California 90012-4758

Telephone (213) 894-4408

Facsimile (213) 894-0081

Attorneys for Defendant

JOSE MANUEL xxxxx

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

JOSE MANUEL xxxxx, et al.,

Defendant.

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NO. CR xxxxxxxxxxxxxxx

NOTICE OF MOTION; MOTION TO SUPPRESS FRUITS OF SEARCH OF WOODEN PLANKS AT THE NOGALES PORT OF ENTRY

Hearing Date: Dec. 7, 1998

Hearing Time: 1:30 p.m.

TABLE OF CONTENTS

Page

MOTION 2

MEMORANDUM OF POINTS AND AUTHORITIES 3

I. STATEMENT OF FACTS 3

II. ARGUMENT 4

A. THE WARRANTLESS SEARCH OF THE TRAILER AT THE NOGALES
PORT OF ENTRY IS PRESUMPTIVELY UNCONSTITUTIONAL 4

B. THE SEARCH OF THE TRAILER AT THE NOGALES PORT

OF ENTRY WAS UNREASONABLE BECAUSE THE CUSTOMS

AGENTS DID NOT EMPLOY THE LEAST INTRUSIVE MEANS

TO CONDUCT THE SEARCH 5

1. The Fourth Amendment's Reasonableness

Requirement 5

2. The Least Intrusive Means and the Fourth

Amendment 7

3. The Manner in Which the Wooden Planks Were

Searched Renders the Search Unreasonable 9

C. THE GOVERNMENT MUST ESTABLISH REASONABLE SUSPICION

FOR THE SEARCH BECAUSE THE SEARCH INVOLVED THE DESTRUCTION OF PERSONAL PROPERTY 10

III. CONCLUSION 12

TABLE OF AUTHORITIES

Page

CASES

Arizona v. Hicks,

480 U.S. 321 (1987) 7

Bergquist v. County of Cochise,

806 F.2d 1364 (9th Cir. 1986) 6

Florida v. Royer,

460 U.S. 491 (1983) 7, 8

Jones v. United States,

357 U.S. 493 (1958) 4

Katz v. United States,

389 U.S. 347 (1967) 4

Tarpley v. Green,

684 F.2d 1 (D.C. Cir. 1982) 6

United States v. Becker,

929 F.2d 442 (9th Cir.),

cert. denied, 502 U.S. 861 (1991) 6

United States v. Cameron,

538 F.2d 254 (9th Cir. 1976) 7, 8

United States v. Canada,

527 F.2d 1374 (9th Cir. 1975) 4

United States v. Carreon,

872 F.2d 1436 (10th Cir. 1989) 11

United States v. Des Jardins,

747 F.2d 499 (9th Cir. 1984) 5, 10

United States v. Ek,

676 F.2d 379 (9th Cir. 1982) 11

United States v. Jeffers,

342 U.S. 48 (1951) 4

United States v. Johnson,

936 F.2d 1082 (9th Cir. 1991) 4

United States v. Montoya de Hernandez,

473 U.S. 531 (1985) 5, 10, 11

United States v. Most,

789 F.2d 1411 (9th Cir. 1986) 5

United States v. Nates,

831 F.2d 860 (9th Cir. 1987),

cert. denied, 108 S. Ct. 2845 (1988) 8

United States v. Penn,

647 F.2d 876 (9th Cir. 1980) 6

United States v. Puig,

810 F.2d 1085 (11th Cir. 1987) 11

United States v. Ramsey,

431 U.S. 606 (1977) 5, 6, 10

United States v. Robles,

45 F.3d 1 (1st Cir. 1995) 11

United States v. Rodriguez,

592 F.2d 553 (9th Cir. 1979) 11

United States v. Sarda-Villa,

760 F.2d 1232 (11th Cir. 1985) 11, 12

United States v. United States District Court,

407 U.S. 297 (1972) 5

United States v. Villabona-Garnica,

63 F.3d 1051 (11th Cir. 1995) 11

Wong Sun v. United States,

371 U.S. 471 (1963) 4

OTHER

U.S. Const. Amend. IV 4

C:\wwwfpd\port.wpd

1. The Statement of Facts have been compiled from the Affidavit of U.S. Customs Special Agent Kumar C. Kibble (attached as "Exhibit A") and Letter from U.S. Customs Special Agent Kumar C. Kibble to U.S. Attorney Nora Manella (attached as "Exhibit B").

2. The majority in Nates did not address this issue because, as Judge Kozinski recognized, the defendant had not expressly raised it. See id. at 864, n.2. As a result the majority's failure to join Judge Kozinski should not be construed as a rejection of his substantive analysis, but rather, as a rejection of his suggestion that the court should reach the issue despite the defendant's failure to raise it.

3. These Fifth Circuit cases do not address the question of whether the destruction of property must be the least intrusive means of conducting the search, as argued above. At least some of the cases cited in Villabona-Garnica suggest such a rule, however. In United States v. Puig, 810 F.2d 1085 (11th Cir. 1987), the court emphasized that drilling a small hole in the hull of a boat was the only means of reaching an otherwise inaccessible compartment. See id. at 1086-87. In United States v. Sarda-Villa, 760 F.2d 1232, 1237-39 (11th Cir. 1985), the court spoke generally of a "reasonable means" requirement. See id. at 1239.