Opinion
No. 51680-9-I.
Filed: May 24, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County. Docket No: 01-1-01175-1. Judgment or order under review. Date filed: 01/07/2003. Judge signing: Hon. Michael F Moynihan.
Counsel for Appellant(s), Andrew Louis Subin, Attorney at Law, 115 W Magnolia St. Ste 206, Bellingham, WA 98225-4300.
Counsel for Respondent(s), Philip James Buri, Buri Funston PLLC, 1601 F Street, Bellingham, WA 98225-3011.
Rosemary Hawkins Kaholokula, Whatcom Cty Pros Atty Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Hilary A. Thomas, Whatcom County Prosecutors Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Marden Wolsey was arrested by customs agents for possessing 35 pounds of marijuana. He appeals a trial court ruling that the search of his motor home was a valid border search, or in the alternative, an extended border search. Because he left the border without permission before the agents could conduct a search, the subsequent search was valid. In the alternative, the agents possessed sufficient suspicions of criminal activity to justify an extended border search. Accordingly, we affirm his conviction.
I
In October 2001, Marden Wolsey arrived at the Peace Arch border crossing driving a motor home. Richard Bayne was working as the primary inspector, checking vehicles as they entered the United States.
While performing a cursory search of Wolsey's motor home, Bayne noticed that there was an aftermarket container under the mattress. The container had relatively new sealant that was still tacky to the touch. By this time Bayne was positive he had searched the vehicle before, and that he did not remember the container from the previous inspection.
These factors made Bayne suspicious, so he took Wolsey's passport and identification and instructed him to park at the end of the secondary lot. He then informed Wolsey to "[g]o inside the building and see Customs. I have your passport. It will be waiting there inside." Bayne watched Wolsey drive his vehicle to the lot. Bayne took Wolsey's identification and passport to his supervisor and requested a canine search of the vehicle.
Wolsey never entered the customs building. Instead, he stood by his motor home until an agricultural inspector approached him. The inspector asked him if he was waiting to see anyone and if he had a referral slip. Wolsey replied, "I'm here to see you guys." The inspector informed Wolsey that he was with the USDA. Wolsey then invited the inspector to look inside his motor home. This took several minutes. When the inspector finished, Wolsey asked if he was free to leave. The inspector replied that "as far as the USDA was concerned," Wolsey was "fine to go." Wolsey then left, leaving behind his passport and drivers license and without having gone inside the customs building as directed.
Shortly thereafter, Bayne went inside and asked what the outcome of the search was, and found out that the motor home had not been searched. Another officer reminded him that they had seized a large amount of cash from that motor home the previous year. Bayne called the border patrol to report a "port runner."
Several agents began searching Interstate 5 for the motor home. About 35 to 40 minutes after receiving a call over the radio about a port runner, senior border patrol agent Bryce Vandekop saw the motor home and pulled it over. This occurred about 17 miles from the border. Vandekop looked through the vehicle to determine if there were other people inside. Wolsey explained that he had stopped in Ferndale for some gas. Vandekop later testified that in his experience, it takes about 15 minutes to travel from the border to the location where he stopped Wolsey. He believed Wolsey would have had time to stop for gas, but for little else.
The agent then accompanied Wolsey back to the border in order to pursue the inspection customs had initiated earlier. At the Blaine Border Patrol station, another agent asked a canine inspector to search the motor home. The search was done on the interior and exterior of the motor home. The dog alerted on top of the bed, but could not determine exactly where the odor came from.
Once the motor home was brought back to the Peace Arch border crossing, agents conducted a second canine search of the motor home, unaware that one had been performed in Blaine. After the dog responded to the odor of narcotics in the motor home, Bayne and two other customs agents searched the motor home. When Bayne got to the black container under the mattress, he discovered that it could not be easily removed, and had to cut the metal bands holding it in place. Once he cut the bands, a white box fell out containing 35 pounds of marijuana.
Wolsey moved to suppress the evidence of the marijuana. Following a hearing, the court denied Wolsey's motion to suppress. The court later found him guilty of unlawful possession of a controlled substance with intent to deliver by stipulated trial.
II
We begin by noting that Wolsey challenges two findings of fact without providing argument as to why they were improper. Assignments of error not argued in briefs are deemed abandoned. Regardless, we conclude that substantial evidence supports the trial court's findings of facts. The trial court found that customs lawfully inspected Wolsey's vehicle. The court provided two alternate means justifying the search — that the search was a valid border search, or that in the alternative, the agents conducted a valid extended border search. Wolsey challenges both conclusions.
Pappas v. Hershberger, 85 Wn.2d 152, 153, 530 P.2d 642 (1975).
Because this case involves searches by federal agents working in their official capacity, we analyze this case using federal precedent. Even if the search violates state law, "evidence lawfully obtained under federal standards by United States Customs officials is admissible." We review the validity of a warrantless search de novo. The burden is on the State to show that the search falls within one of the narrow exceptions to the warrant requirement.
State v. Bradley, 105 Wn.2d 898, 902-03, 719 P.2d 546 (1986) (holding that because federal agents enforce border laws, "[n]either state law nor the state constitution can control federal officers' conduct").
Bradley, 105 Wn.2d at 903.
U.S. v. Van Poyck, 77 F.3d 285, 290 (9th Cir. 1996).
See U.S. v. Carbajal, 956 F.2d 924, 930 (9th Cir. 1992) (federal rule placing burden on government to establish exception); see also State v. Ladson, 138 Wn.2d 343, 350, 979 P.2d 833 (1999) ("The burden is always on the state to prove one of these narrow exceptions.").
The border search doctrine is one such exception to the Fourth Amendment prohibition against warrantless searches without probable cause. Pursuant to this exception, codified at 19 U.S.C. §§ 1581 and 1582, "routine searches of persons and their effects entering the country may be conducted without any suspicion whatsoever." Border searches are considered to be reasonable by the single fact that the person or item in question entered the United States from outside.
U.S. v. Molina-Tarazon, 279 F.3d 709, 712 (9th Cir. 2002).
Section 1581 provides:
(a) Customs officers
Any officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States or within the customs waters or, as he may be authorized, within a customs-enforcement area established under the Anti-Smuggling Act [ 19 U.S.C.A. 1701 et seq.], or at any other authorized place, without as well as within his district, and examine the manifest and other documents and papers and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel or vehicle, and use all necessary force to compel compliance. Section 1582 authorizes the Secretary of the Treasury to prescribe regulations for the search of persons and baggage.
Molina-Tarazon, 279 F.3d at 712.
U.S. v. Ramsey, 431 U.S. 606, 619, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977).
Wolsey advances no argument that the search of his vehicle was not "routine," or that a canine search at the border is unreasonable. Instead, he argues that once he left the border without permission, the government could no longer thoroughly search his vehicle for contraband But if the challenged searches had been conducted before he left the border, it is clear that each search would have been proper even absent "any suspicion whatsoever." Wolsey cannot claim that by improperly leaving the border, custom officers are prohibited from conducting the search they were entitled to conduct but for his flight.
Molina-Tarazon, 279 F.3d at 712.
Wolsey infers that because he passed through an agricultural inspection before leaving the border, he was free to leave. Wolsey appears to argue that his alleged mistake invalidates federal customs' authority to conduct a border search. But Officer Bayne testified that border patrol agents wear uniforms that look different from an agricultural inspector's uniform, and that agricultural inspectors do not have the authority to authorize someone to enter the country. By leaving without permission from a customs agent, Wolsey violated federal law.
19 C.F.R. § 123.1(b) provides that:
Vehicles may arrive in the U.S. only at a designated port of entry. . . . Upon arrival of the vehicle in the U.S., the driver . . . immediately shall report such arrival to Customs, and shall not depart or discharge any passenger or merchandise (including baggage) without authorization by the appropriate Customs officer.
The trial court also concluded that the searches of Wolsey's vehicle while away from the border were valid extended border searches. "Extended border searches" are permitted under certain circumstances. These are searches which occur sometime after the subject's entry into the country, or somewhere outside of the immediate vicinity of the border. Extended border searches are thought to be more intrusive on an individual's legitimate expectation of privacy than searches at the actual border. Therefore the search must be based on a "`reasonable suspicion' that the subject of the search was involved in criminal activity."
U.S. v. Alfonso, 759 F.2d 728, 734-35 (9th Cir. 1985).
Alfonso, 759 F.2d at 734.
When determining whether an extended border search is valid, courts engage in a two-part analysis. First, we determine whether officers had a reasonable suspicion that the subject of the search has engaged in criminal activity. Second, agents must possess "`reasonable certainty' that any contraband which might be found in the vehicle was aboard the vehicle when it crossed the border." When evaluating whether there is "reasonable suspicion" for an extended border search, we look at the totality of the circumstances. This includes the time and distance from the original entry, and the manner and extent of surveillance.
Alfonso, 759 F.2d at 734.
U.S. v. Perez, 644 F.2d 1299, 1302 (9th Cir. 1981).
Alfonso, 759 F.2d at 735 (citing Alexander v. U.S., 362 F.2d 379, 382 (9th Cir. 1966)).
Wolsey argues that the facts known to the agents did not provide a reasonable suspicion of criminal activity. He is incorrect. At the cursory inspection, the customs agent noticed that there was an aftermarket container under the mattress. The aftermarket container had relatively new sealant that was still tacky to the touch. And although the agent remembered searching the vehicle before, he did not recognize the container from the previous inspection. The customs agent then took Wolsey's passport and identification and instructed him to park at the end of the secondary lot, and informed Wolsey to go inside and see customs. Wolsey did not report to the customs agents as directed and instead left without permission. And he had been involved in an enforcement action the previous year in which $83,000 in currency had been found hidden under the same mattress. Bayne also testified that motor homes are ideal for hiding narcotics because of the many compartments and possible hiding places. We hold that these factors provided a sufficient basis justifying the searches as extended border searches.
We note that the agents could have conducted a search incident to arrest had they arrested Wolsey for leaving the border without authorization.
Wolsey also argues that the State failed to establish with reasonable certainty that the vehicle was in the same condition at the time of the search that it was when it crossed the border. Where a sufficiently large gap in surveillance allows the possibility of changing the contents of the car, reasonable certainty does not exist. But this surveillance does not need to be constant. Instead, there must be no reason to believe that there has been a change in the vehicle's condition.
Perez, 644 F.2d at 1302 (gap of 90 minutes).
See U.S. v. Ramos, 645 F.2d 318, 320-21 (5th Cir. 1981) (30 minute gap in surveillance); U.S. v. Terry, 446 F.2d 579, 581-82 (9th Cir. 1971) (between 45 minute and one hour gap).
See U.S. v. Mejias, 452 F.2d 1190, 1193-94 n. 3 (9th Cir. 1973) (recognizing that "surveillance is one circumstance which provides the requisite reasonable certainty. However, there need not be continuous surveillance where other circumstances, as are present in this case, provide the fact finder with the reasonable certainty required by the applicable test").
In the suppression hearing, evidence demonstrated that Wolsey had traveled 17 miles in the 35 to 40 minutes that he was not under observation. He admitted to the officer he had stopped for gas during that time. And there was no indication that the motor home's condition changed between when he left the border and when agents apprehended him less than 40 minutes later. We conclude that the agent's search of Wolsey's vehicle fell under both border crossing exceptions.
Affirmed.
ELLINGTON and COLEMAN, JJ., concur.