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,

xxxxxxxxxxxxxxx, et al.

Defendant.

)

NO. CR xxxxxxxxxxxxxxxx

DEFENDANT xxxxx REPLY TO GOVERNMENT'S OPPOSITION TO MOTION TO SUPPRESS FRUITS OF SEARCHES AT NOGALES PORT OF ENTRY AND 1400 SPORTMAN DRIVE WAREHOUSE

Hearing Date: Dec. 7, 1998

Hearing Time: 11:00 a.m.

Defendant,xxxxxxxxxx, by and through his attorney of record, Deputy Federal Public Defender Kenly Kiya Kato, hereby submits this reply to the government's opposition to defendant's motions to suppress the fruits of the searches at the Nogales Port of Entry and the 1400 Sportman Drive warehouse.

\\\

This reply is based on the attached memorandum of points and authorities, all files and records in this case, and such argument as may be presented to the Court at the hearing on the 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

ARGUMENT

A. MR. xxxxxxx HAS STANDING TO CHALLENGE THE SEARCHES

THAT OCCURRED AT THE NOGALES PORT OF ENTRY AND THE

1400 SPORTMAN DRIVE WAREHOUSE.

1. The Government Should Not Be Able to Contest Mr.

xxxxxxx's Standing to Challenge the Searches By

Taking Inconsistent Positions.

The government has charged Mr. xxxxxxx with possession of marijuana with intent to distribute. It now contests Mr. xxxxxxx's standing to challenge the searches of the wooden planks at the Nogales Port of Entry and the 1400 Sportman Drive warehouse. While these two positions are not automatically inconsistent, the government cannot "argue possession but deny expectation of privacy where the circumstances of the case make such positions necessarily inconsistent." United States v. Issacs, 708 F.2d 1365, 1368 (9th Cir.), cert. denied, 464 U.S. 852 (1983); see United States v. Singleton, 987 F.2d 1444, 1448 (9th Cir. 1993).

The theory of the government's case is that Mr. xxxxxxx was the receiver/consignee of the shipment of lumber. In support of this theory, the government apparently intends to present the following evidence:

1. The documents presented to customs officials at the Nogales Port of Entry listed Mr. xxxxxxx as receiver of the lumber and consignee of the warehouse.

2. The documents presented to customs officials at the Nogales Port of Entry listed Mr. xxxxxxx's address as the 1400 Sportman Drive warehouse.

3. Mr. xxxxxxx was present by at least approximately

8:52 a.m. when the trailer carrying the shipment of lumber arrived at the 1400 Sportman Drive warehouse.

4. Mr. xxxxxxx signed the receipt for the shipment of

lumber and thereby took control of the lumber.

5. Mr. xxxxxxx remained at the 1400 Sportman Drive

warehouse until his arrest during which time he i) assisted in and/or directed the movement of the lumber from the trailer into the warehouse, ii) assisted in and/or directed the breaking up of the wooden planks,⁽¹⁾ and iii) handled and/or directed the handling of the marijuana bricks contained in the wooden planks.

Based upon this theory and evidence, it would be inconsistent for the government to now deny Mr. xxxxxxx standing to contest the searches of the wooden planks at the Nogales Port of Entry or the 1400 Sportman Drive warehouse. Thus, Mr. xxxxxxx should be found to have standing to contest both searches.

2. Even Assuming the Government Does Not Take Inconsistent Positions, Mr. xxxxxxx Still Has Standing to Challenge the Searches of the Wooden Planks at the Nogales Port of Entry and the 1400 Sportman Drive Warehouse.

a. Mr. xxxxxxx Has Standing to Contest The Search of the Wooden Planks at the Nogales Port of Entry.

Even assuming the government does not take inconsistent positions, Mr. xxxxxxx possesses standing to challenge the search of the wooden planks at the Nogales Port of Entry. The government's assertion to the contrary focuses on Mr. xxxxxxx's lack of any interest in the trailer in which the planks were being carried. It asserts that Mr. xxxxxxx lacks standing because Mr. xxxxxxx did not own the trailer. See Government's Opposition at 6.

The government's reasoning is foundationally flawed. Mr. xxxxxxx is not objecting to the search of the trailer. In fact, whether or not he has standing to challenge the search of the trailer is irrelevant.⁽²⁾ It is the manner in which the wooden planks were searched which is problematic. Thus, the critical

inquiry is whether Mr. xxxxxxx has standing to contest the search of the wooden planks, not the trailer.

Both testimonial and documentary evidence establish Mr. xxxxxxx's interest in the wooden planks. The shipping documents which were presented to customs officials at the time of the border crossing consistently list Jose Manuel xxxxxxx as the consignee/receiver of the goods. The bill of lading identifies Mr. xxxxxxx as the consignee. See Exhibit A, Bill of Lading. The phytosanitary certificate issued by Mexican government also names Mr. xxxxxxx as the consignee. See Exhibit B, Phytosanitary Certificate. In addition, a third shipping document also names Mr. xxxxxxx as the receiver of the shipment. See Exhibit C, Shipping Document.⁽³⁾

In addition, Mr. xxxxxxx has presented evidence, in the form of the affidavit of Special Agent Kibble, that he was present at the delivery address on the day of the delivery. Furthermore, Mr. xxxxxxx did, in fact, sign and receive the wooden planks when they were delivered. He thereafter moved the wooden planks into the warehouse and assisted in and/or directed breaking them up and removing the marijuana. Based upon these circumstances, Mr. xxxxxxx had a reasonable expectation of privacy with respect to the wooden planks.

b. Mr. xxxxxxx Has Standing to Challenge the Search of the 1400 Sportman Drive Warehouse.

Mr. xxxxxxx also has standing to challenge the search of the 1400 Sportman Drive warehouse. The government's opposition contains one single conclusory sentence regarding this issue in which it claims that Mr. xxxxxxx lacks standing because he has not "submitted any evidence that he was the owner or lessee of Space G of the warehouse." See Government's Opposition at 6. However, the protections of the Fourth Amendment do not extend solely to owners or lessees of business premises.

The Fourth Amendment protection from unreasonable searches applies to business premises, as well as residential premises.

E.g., Michigan v. Tyler, 436 U.S. 499 (1978). The crucial issue is whether the area searched was one in which the defendant had a reasonable expectation of freedom from governmental intrusion. Mancusi v. DeForte, 392 U.S. 364, 368 (1968). In determining whether this reasonable expectation exists, courts have looked to (1) whether the defendant had custody of the items at the time of the seizure, id. at 369, (2) whether the defendant had an interest in the items seized, United States v. Robertson, 606 F.2d 853, 858, n.2, (3) whether the item seized was the personal property of the defendant, rather than an item connected to the business, United States v. Mancini, 8 F.3d 104, 107-08 (1st Cir. 1993), (4) whether the defendant had the authority to exclude others from the premises, Martinez v. Nygaard, 831 F.2d 822, 826 (9th Cir. 1987), (5) whether the defendant had a legitimate presence on the premises, United States v. Pollock, 726 F.2d 1456 (9th Cir. 1984), and (6) the amount of time the defendant spent at the premises, id. at 368-69 (defendant spent a "considerable amount of time" at the premises), Mancusi, 392 U.S. at 368.

Applying these factors to the present case establishes Mr. xxxxxxx's standing. First, Mr. xxxxxxx had custody of the wooden planks and marijuana which was seized. This is evidenced by the shipping documents which listed him as the receiver of the items, as well as the government's theory that Mr. xxxxxxx was in legal possession of the items. Second, these wooden planks were in no way associated with the mechanics shop which was being operated in the warehouse. See Declaration of Jose Mendoza-Ortiz (stating that the 1400 Sportman Drive warehouse was a mechanic's shop). Rather, they were items which were delivered to Mr. xxxxxxx for an unrelated purpose. Third, the wooden planks were in Mr. xxxxxxx's possession for a non-employment related purpose, Mr. xxxxxxx clearly had an interest in the items. Thus, these factors support Mr. xxxxxxx's claim of standing.

In addition, Mr. xxxxxxx's presence on the property was legitimate. This is evidenced by the shipping documents which listed the 1400 Sportman Drive warehouse as his address, his key to enter the gate and warehouse at anytime, and his continual presence on the property on October 5, 1998. In addition, Mr. xxxxxxx possessed a key to both the gate enclosing the warehouse and the warehouse itself.⁽⁴⁾ Thus, Mr. xxxxxxx had the ability to exclude others.

Finally, the evidence establishes that Mr. xxxxxxx spent a considerable amount of time at the 1400 Sportman Drive warehouse. All of the shipping documents list Mr. xxxxxxx's address as 1400 Sportman Drive. Mr. xxxxxxx was already present at the 1400 Sportman Drive address when the agents arrived on October 5, 1998. Mr. xxxxxxx remained present throughout the day until he was arrested in the afternoon. Further support that Mr. xxxxxxx was at the premises regularly can be established from the fact that there is nothing on the shipping documents indicating the date of delivery. Shipments of goods over long distances generally cannot be guaranteed to arrive on a specific date. It follows that the shipment will be directed to someone who is there regularly, not just on one day. These facts establish that Mr. xxxxxxx regularly spent time at the 1400 Sportman Drive address. Thus, under these circumstances, Mr. xxxxxxx should be found to have standing to contest the search which occurred at the 1400 Sportman Drive warehouse.

B. THE MANNER IN WHICH THE SEARCH OF THE WOODEN PLANKS AT THE

NOGALES PORT OF ENTRY WAS CONDUCTED VIOLATED THE FOURTH AMENDMENT.

1. The Customs Officials Violated the Fourth Amendment by Failing to Employ the Least Intrusive Means During

the Search of the Wooden Planks at the Nogales Port of

Entry.

The least intrusive means rule has been accepted and applied by both the Supreme Court and courts of appeals, including the Ninth Circuit. E.g., Arizona v. Hicks, 480 U.S. 321 (1987); Florida v. Royer, 460 U.S. 491 (1983) (plurality opinion); United States v. Cameron, 538 F.2d 254 (9th Cir. 1976).

In numerous other cases, moreover, the Supreme Court, without explicitly announcing a general least intrusive means requirement has seemed to implicitly apply such a rule. See, e.g., United States v. Montoya de Hernandez, 473 U.S. at 543 (noting absence of any less intrusive alternative to detention of defendant at border); Tennessee v. Garner, 471 U.S. 1, 10 (1985) (limiting the use of deadly force to effect an arrest; "we are not convinced that the use of deadly force is a sufficiently productive means"); Winston v. Lee, 470 U.S. 753, 765-66 (1985) (barring "search" in form of exploratory surgery for bullet in part because the state had other evidence and so "has failed to demonstrate a compelling need for it"); United States v. Villamonte-Marquez, 462 U.S. 571, 588-89 (1983) (noting absence of less intrusive means which would accomplish government's purpose of assuring vessels' compliance with safety and documentation regulations); Delaware v. Prouse, 440 U.S. 648, 659-61 (1979) (noting alternative to random stops of motorists which would advance state's interests in assuring compliance with licensing requirements); United States v. Martinez-Fuerte, 428 U.S. 543, 556-67 & n.12 (1976) (noting effectiveness of routine immigration inland checkpoint stops and impracticality or ineffectiveness of suggested alternatives); United States v. Brigononi-Ponce, 422 U.S. 873, 881, 883 (1975) ("absence of practical alternatives" justifies roving immigration stops on inland roads; however, law enforcement needs do not require stops without reasonable suspicion); Terry v. Ohio, 392 U.S. 1, 26 (1968) (frisks "must be limited to that which is necessary for the discovery of weapons"); Berger v. New York, 388 U.S. 41, 57 (1967) (wiretap constitutionally permissible because "no greater invasion of privacy was permitted than was necessary under the circumstances").

The government concedes that this rule exists, but argues that it is only applicable to situations where an "individual's body is searched for swallowed drugs or drugs hidden in a body cavity." Government's Opposition at 8. However, the government cites no authority for its proposition that the least intrusive means rule is to be restricted to searches of a person's body. While the lower privacy interest in property may weigh in favor of a lower standard, the permanent damage to property, which is not present in searches of the person, offsets the lower privacy interest. In fact, courts have recognized that the destruction of property which is not reasonably necessary to effectively execute a search warrant may violate the Fourth Amendment. Ginter v. Stallcup, 869 F.2d 384, 388 (8th Cir. 1989); Bergqist 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 implications of the government's position are extremely troubling for the reasons expressed in Judge Kozinski's dissent in United States v. Nates, 831 F.2d 860 (9th Cir. 1987), cert. denied, 108 S. Ct. 2845 (1988). The government would allow officials the right to destroy property crossing the border without cause and without limitation. This result cannot be sanctioned under the principles of the Fourth Amendment.

As stated in the moving papers, at least two less intrusive means were available to the customs inspectors at the Nogales Port of Entry. The inspectors could have employed a drug detecting dog or an X-ray machine to detect the marijuana. In fact, a drug detecting dog was used; however, it was used after the inspectors had already drilled holes into the lumber. Customs inspectors should not be permitted to inflict permanent damage upon property which crosses the border unless and until less intrusive means have been employed. Thus, because less intrusive means were available, the manner in which the search of the wooden planks occurred renders the search unreasonable in violation of the Fourth Amendment.

2. Mr. xxxxxxx Requests a Hearing to Cross-Examine the Customs

Inspectors Regarding the Issue of Reasonable Suspicion.

As argued in the moving papers, whether or not a least intrusive means rule must be applied to border searches involving destruction of property, the government must establish reasonable suspicion for the search because the search involved the destruction of property. The government has submitted the declaration of Customs Inspector Veronica Espinoza, which references observations made by Customs Inspector Difazio, to presumably establish the existence of reasonable suspicion. Mr. xxxxxxx does not concede the inspectors' claim that they could smell marijuana and requests a hearing at which counsel can cross-examine Ms. Espinoza and Mr. Difazio on this issue.

C. THE SEARCH OF THE 1400 SPORTMAN DRIVE WAREHOUSE WAS NOT

A VALID "EXTENDED BORDER SEARCH."

Much of the government's discussion of the search of the 1400 Sportman Drive warehouse focuses on the surveillance of the trailer. Mr. xxxxxxx does not concede that there was constant surveillance over the four day period and requests a hearing at which counsel can cross-examine Special Agent Kibble.

However, the agents did not search the trailer or the wooden planks alone when they arrived at the 1400 Sportman Drive warehouse. Rather, they searched the 1400 Sportman Drive warehouse as well. This is the focus of Mr. xxxxxxx's objection.

As presented in the moving papers, the mere fact that the search was extended beyond the trailer and wooden plank should render the search impermissible. The extended border search theory extends only to that "which might be found in or on the vehicle" which initially crossed the border. See Alexander v. United States, 362 F.2d 379, 382 (9th Cir. 1966). By searching the 1400 Sportman Drive warehouse, the agents exceeded the scope of an extended border search.

However, even assuming that analysis under the extended border search exception is proper, the search was still not a proper extended border search. Contrary to the government's claim, Mr. xxxxxxx's objection is not simply that the search occurred on private property. Rather, the search must be measured by the "totality of circumstances surrounding the search, including the time elapsed after the initial border crossing and the distance from the border." United States v. Jacobson, 647 F.2d 990, 993 (9th Cir. 1981).

The totality of circumstances establishes the unlawfulness of the search. First, the search of the 1400 Sportman Drive warehouse occurred four days after the initial border crossing.⁽⁵⁾ Second, the search of the 1400 Sportman Drive warehouse occurred hundreds of miles from the initial crossing in Nogales.⁽⁶⁾ Third, the search occurred in an enclosed private building.⁽⁷⁾ Finally, there is the possibility of commingling of the wooden planks and/or marijuana which crossed the border with wooden planks and/or marijuana which was already present at the warehouse. Thus, at the time of the search, it was no longer possible to identify which items had crossed the border. Under these circumstances, it would stretch both the law and common sense to characterize the search of the 1400 Sportman Drive warehouse as an "extended border search."

II.

CONCLUSION

For the foregoing reasons, Mr. xxxxxxx respectfully requests that this court suppress (1) the fruits of the search of the wooden planks at the Nogales Port of Entry and (2) the fruits of the search at the 1400 Sportman Drive warehouse.

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 xxxxxxx

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

JOSE MANUEL xxxxxxx, et al.

Defendant.

)

NO. CR xxxxxxxxxxxx

DEFENDANT xxxxxxx'S REPLY TO GOVERNMENT'S OPPOSITION TO MOTION TO SUPPRESS FRUITS OF SEARCHES AT NOGALES PORT OF ENTRY AND 1400 SPORTMAN DRIVE WAREHOUSE

Hearing Date: Dec. 7, 1998

Hearing Time: 11:00 a.m.

TABLE OF CONTENTS

Page

MEMORANDUM OF POINTS AND AUTHORITIES 3

I. ARGUMENT 3

A. MR. xxxxxxx HAS STANDING TO CHALLENGE THE SEARCHES
THAT OCCURRED AT THE NOGALES PORT OF ENTRY AND THE
1400 SPORTMAN DRIVE WAREHOUSE 3

1. The Government Should Not Be Able to Contest

Mr. xxxxxxx's Standing to Challenge the Searches

By Taking Inconsistent Positions 3

2. Even Assuming the Government Does Not Take Inconsistent Positions, Mr. xxxxxxx Still Has

Standing to Challenge the Searches of the

Wooden Planks at the Nogales Port of Entry

and the 1400 Sportman Drive Warehouse 5

a. Mr. xxxxxxx Has Standing to Contest The Search of the Wooden Planks at the Nogales Port of Entry 5

b. Mr. xxxxxxx Has Standing to Challenge the Search of the 1400 Sportman Drive Warehouse 7

B. THE MANNER IN WHICH THE SEARCH OF THE WOODEN PLANKS AT THE NOGALES PORT OF ENTRY WAS CONDUCTED VIOLATED THE FOURTH AMENDMENT 10

1. The Customs Officials Violated the Fourth Amendment by Failing to Employ the Least Intrusive Means During the Search of the Wooden Planks at the Nogales Port of Entry 10

2. Mr. xxxxxxx Requests a Hearing to Cross-Examine the Customs Inspectors Regarding the Issue of Reasonable Suspicion 13

C. THE SEARCH OF THE 1400 SPORTMAN DRIVE WAREHOUSE WAS NOT A VALID "EXTENDED BORDER SEARCH." 13

II. CONCLUSION 15

TABLE OF AUTHORITIES

Page

CASES

Alexander v. United States,

362 F.2d 379 (9th Cir. 1966) 14

Arizona v. Hicks,

480 U.S. 321 (1987) 10

Berger v. New York,

388 U.S. 41 (1967) 11

Bergqist v. County of Cochise,

806 F.2d 1364 (9th Cir. 1986) 12

Delaware v. Prouse,

440 U.S. 648 (1979) 11

Florida v. Royer,

460 U.S. 491 (1983) 10

Ginter v. Stallcup,

869 F.2d 384 (8th Cir. 1989) 12

Mancusi v. DeForte,

392 U.S. 364 (1968) 7, 8

Martinez v. Nygaard,

831 F.2d 822 (9th Cir. 1987), 7

Michigan v. Tyler,

436 U.S. 499 (1978) 7

Tarpley v. Green,

684 F.2d 1 (D.C. Cir. 1982) 12

Tennessee v. Garner,

471 U.S. 1 (1985) 10

Terry v. Ohio,

392 U.S. 1 (1968) 11

United States v. Brigononi-Ponce,

422 U.S. 873 (1975) 11

United States v. Cameron,

538 F.2d 254 (9th Cir. 1976) 10

United States v. Issacs,

708 F.2d 1365 (9th Cir.),

cert. denied, 464 U.S. 852 (1983) 3

United States v. Jacobson,

647 F.2d 990 (9th Cir. 1981) 14, 15

cont. of Table of Authorities

Page

CASES

United States v. Johns,

707 F.2d 1456 (9th Cir. 1984),

rev'd on other grounds 469 U.S. 478 (1985) 5

United States v. Mancini,

8 F.3d 104 (1st Cir. 1993), 7

United States v. Martinez-Fuerte,

428 U.S. 543 (1976) 11

United States v. Montoya de Hernandez,

473 U.S. at 543 10

United States v. Nates,

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

cert. denied, 108 S. Ct. 2845 (1988) 12

United States v. Perez,

689 F.2d 1336 (9th Cir. 1982) 5

United States v. Pollock,

726 F.2d 1456 (9th Cir. 1984), and (6) 8

United States v. Robertson,

606 F.2d 853 (3) 7

United States v. Singleton,

987 F.2d 1444 (9th Cir. 1993) 3

United States v. Villamonte-Marquez,

462 U.S. 571 (1983) 10

Winston v. Lee,

470 U.S. 753 (1985) 10

C:\wwwfpd\portrply.wpd

1. It is not clear whether the government's position is that Mr. xxxxxxx directed or assisted in the movement and breaking up of the lumber. The government should be required to specify its position.

2. If the Court's focuses is on the search of the trailer, however, Mr. xxxxxxx still has standing based upon the formal arrangement for transportation of the wooden planks between the shipper and Mr. xxxxxxx. United States v. Johns, 707 F.2d 1456, 1465 (9th Cir. 1984) (defendant could contest seizure of drugs from another's vehicle because of their formal arrangement for the transportation), rev'd on other grounds 469 U.S. 478 (1985); United States v. Perez, 689 F.2d 1336, 1337-38 (9th Cir. 1982) (per curiam) (defendants driving accompanying vehicle could contest seizure of drugs from truck driven by coconspirator). This formal arrangement is established by the shipping documents.

3. In addition, the shipping requests lists "Jorge Manuel xxxxxxx Garcia" as the receiver of the shipment. However, because it lists "Gorge Manuel xxxxxxx Garcia" as the shipper and because "Jorge Manuel xxxxxxx Garcia" is the listed shipper on the other documents, it appears that "Jorge Manuel xxxxxxx Garcia" is a mistake. Presumably, the receiver should be "Jose Manuel xxxxxxx Garcia." See Exhibit D, Shipping Request.

4. Mr. xxxxxxx anticipates obtaining this evidence through cross-examination of Mr. Jose Mendoza-Ortiz.

5. In contrast, the search in Jacobson occurred approximately two and half hours after the initial border crossing. Id. at 991.

6. In contrast, the initial border crossing in Jacobson occurred at Nogales, Arizona and the search occurred approximately 86 miles away at Tucson, Arizona. Id. at 991. See Exhibit E, United States Road Atlas.

7. In contrast, the search in Jacobson occurred on a private driveway. As the court in Jacobson noted, "[a] driveway is only a semiprivate area." Id. at 992 (quoting United States v. Magana, 512 F.2d 1169 (9th Cir. 1975).