Opinion
CR-20-02117-001-TUC-RM (MSA)
04-28-2022
United States of America, Plaintiff, v. Roy Diego Hernandez, Defendant.
REPORT AND RECOMMENDATION
HONORABLE MARIA S. AGUILERA, UNITED STATES MAGISTRATE JUDGE.
Pending before the Court is Defendant Roy Diego Hernandez's motion to suppress evidence. (Doc. 45.) The motion has been fully briefed, and an evidentiary hearing was held on April 13, 2022. (Docs. 48, 51.) For the following reasons, the Court will recommend that the motion be denied.
Background
In January 2020, Hernandez attempted to drive into Mexico through the port of entry in Lukeville, Arizona. (Tr. 6-9.) Customs Officer Marvin Williams asked Hernandez and his passenger whether they were transporting any contraband; both stated that they were not. (Tr. 6-7.) Officer Williams then had them exit the car and accompany him on foot to the port of entry's secondary office. (Tr. 7-8, 26-27.) Meanwhile, Customs Officer Anthony Hornbeck drove Hernandez's car to a nearby x-ray machine, where he conducted an x-ray scan. (Tr. 33-34.) The scan showed an anomaly near the center console, under the dashboard, so Officer Hornbeck drove the car to a nearby inspection area so that the car could be searched. (Tr. 34, 42.) In response to learning about the anomaly, Officer Williams conducted a pat-down search of Hernandez. (Tr. 28-29.) He then placed Hernandez in a holding cell and went to assist in the vehicle search. (Tr. 9, 29.)
During the search, the officers removed the paneling around the car's center console area. (Tr. 10, 29-30.) This was done by hand and with minimal force, and the process was easily reversible. (Tr. 11-12, 36-37.) Upon removing the first panel, Officer Williams observed a firearm magazine fall out of the void behind the paneling. (Tr. 10-12; Pl.'s Ex. 2.) The officers found additional magazines in the same area, each of which was still in its original packaging. (Tr. 12, 21, 37; Pl.'s Exs. 1, 3.) The officers then conducted a more thorough inspection, which took another 20 to 25 minutes. (Tr. 12-15, 37-40.)
The testimony established that Hernandez arrived at the port of entry at about 1:30 p.m. (Tr. 15, 26, 32.) Although their timelines differed somewhat, Officer Williams and Officer Hornbeck both testified that the x-ray scan occurred within minutes after Hernandez arrived at the port of entry, and that the vehicle search began within minutes after the scan. (Tr. 26-30, 33-34, 37-38.) A copy of the vehicle scan, however, indicates that the scan occurred at “15.08,” or 3:08 p.m. (Pl.'s Ex. 4.) Officer Hornbeck was unsure whether the x-ray program, which automatically titled the x-ray scan based on date and time, utilized the local time zone. (Tr. 46.)
Discussion
Hernandez contends that the search of his car was unreasonable under the Fourth Amendment. In his written motion, he argued that this was because of three circumstances: (i) he was stopped based on a prior incident involving different people traveling in the same car, (ii) he was detained for several hours, and (iii) the removal of the center-console paneling was too “sever[e].” (Doc. 45 at 11-13.) He narrowed his argument during the evidentiary hearing, however, by focusing on the officers' alleged lack of diligence during his detention. (Tr. 56-57, 59-61.) Relying on the timestamped copy of the x-ray scan, he says that his Fourth Amendment rights were violated because the officers waited for over 90 minutes to begin the vehicle search. As discussed below, the Court finds that no violation occurred.
During the hearing, Hernandez did not elicit testimony or offer argument regarding the prior incident involving the same car. Thus, the incident is not addressed in this report.
Although warrantless searches are generally unreasonable, “searches made at the border . . . are reasonable simply by virtue of the fact that they occur at the border.” United States v. Ramsey, 431 U.S. 606, 616 (1977). Accordingly, “[r]outine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant.” United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985). Searches of vehicles at the border are subject to even less scrutiny, as they do not involve the same “dignity and privacy interests” associated with searches of persons. United States v. Flores-Montano, 541 U.S. 149, 152 (2004). A vehicle search need not be supported by reasonable suspicion unless it is excessively destructive or renders the vehicle unsafe or inoperable. Id. at 154-56. Reasonable suspicion may also be required if the search is carried out in a “particularly offensive manner.” Id. at 154 n.2 (quoting Ramsey, 431 U.S. at 618 n.13).
It is well-established that the foregoing principles “appl[y] equally to searches of persons and property exiting the United States as to those entering the country.” United States v. Abbouchi, 502 F.3d 850, 855 (9th Cir. 2007). With that in mind, the Court finds that the search of Hernandez's car was reasonable. The removal of the console paneling required minimal force and was easily reversible, and there is no indication that the x-ray scan damaged Hernandez's car. Thus, the search did not cause serious damage or impair the car's safety or operability. Nor is there any suggestion that the search was carried out in a particularly offensive manner. As such, this was a reasonable, suspicionless border search. See United States v. Hernandez, 424 F.3d 1056, 1059 (9th Cir. 2005) (reaching the same conclusion where officers removed a vehicle's interior door paneling); see also Flores-Montano, 541 U.S. at 155-56 (reaching the same conclusion where officers disassembled a vehicle's fuel tank).
Hernandez challenges the search on the ground that it began over 90 minutes after he was stopped. He says that the officers were required to conduct the search promptly, and that because a typical search takes about 30 minutes, the officers should have been done no later than 45 minutes after he arrived at the port of entry. (Tr. 59.) As an initial matter, although the testimony was clear that the search began within minutes after the x-ray scan, the evidence concerning when the scan occurred appears to be in conflict. The officers testified that the scan occurred within minutes of Hernandez's arrival at the port of entry, at 1:30 p.m. However, a timestamped copy of the scan indicates that the scan occurred at 3:08 p.m. While the Court is inclined to credit the officers' testimony, the accuracy of the timestamp is assumed for purposes of Hernandez's motion. This would mean that the first magazine was found at around 3:20 p.m., and that the search was completed at around 3:40 p.m.
Even under this version of the facts, Hernandez's argument fails. In Flores-Montano, the defendant argued that his Fourth Amendment rights had been violated because the search of his vehicle caused an hour-long delay and had the potential to cause a two-hour delay. 541 U.S. at 155 n.3. The Supreme Court disagreed, noting that the defendant had “point[ed] to no cases indicating the Fourth Amendment shields entrants from inconvenience or delay at the international border,” and further noting that it was “clear that delays of one to two hours at international borders are to be expected.” Id.; see Montoya de Hernandez, 473 U.S. at 543-44 (relying on “common sense and ordinary human experience” when analyzing the length of a detention at the international border, “where the Fourth Amendment balance of interests leans heavily to the Government” (quoting United States v. Sharpe, 470 U.S. 675, 685 (1985))). In this case, the magazines were discovered within two hours-the expected period of delay-and Hernandez, like the defendant in Flores-Montano, fails to identify any caselaw prohibiting such a delay. See United States v. Nava, 363 F.3d 942, 943-45 (9th Cir. 2004) (concluding that a border search of a vehicle, which took over two hours, was lawful).
To get around the fact that delay is an expected part of crossing an international border, Hernandez attempts to inject a diligence requirement into the analysis. His argument is predicated on Rodriguez v. United States, 575 U.S. 348 (2015), a case that involved a non-border-related traffic stop. There, the Supreme Court explained that “[a]uthority for the seizure . . . ends when tasks tied to the traffic infraction are-or reasonably should have been-completed.” Id. at 354. Stated differently, an officer who initiates a traffic stop based on reasonable suspicion has only a limited window of time to investigate the traffic infraction; the officer cannot prolong the stop beyond the time necessary to complete traffic-related tasks without reasonable suspicion of a separate offense. Id. at 354-55; see Sharpe, 470 U.S. at 686 (stating that a detention becomes unreasonable if the police do not “diligently pursue[] a means of investigation that [is] likely to confirm or dispel their suspicions quickly”).
The Court is not persuaded that the diligence requirement applies in the context of this case. As an initial matter, Hernandez fails to identify any authority applying such a requirement to an otherwise reasonable, suspicionless vehicle search. Nor is it clear how the requirement, as articulated in Rodriguez, could apply. The diligence requirement operates as a limitation on an officer's reasonable suspicion, i.e., it limits the amount of time the officer has to investigate his suspicions. See id. at 354 (“Authority for the seizure thus ends when tasks tied to the traffic infraction are-or reasonably should have been- completed.”). Here, no reasonable suspicion was required because the search was not excessively destructive or carried out in a particularly offensive manner.
In addition, Hernandez's argument does not account for the “special concerns surrounding border crossings,” or for the “special rules [that] apply” when addressing those concerns. United States v. Bravo, 295 F.3d 1002, 1009 (9th Cir. 2002) (quoting United States v. Butler, 249 F.3d 1094, 1098 (9th Cir. 2001)). The same concerns are not implicated by ordinary traffic stops. See United States v. Guzman-Padilla, 573 F.3d 865, 886 (9th Cir. 2009) (holding that a vehicle seizure did not amount to a de facto arrest because it was “authorized under the border search doctrine,” but noting the result might be different if the seizure had been “an ordinary roadside vehicle stop”); see Montoya de Hernandez, 473 U.S. at 544 (recognizing that, “[a]t the border, customs officials have more than merely an investigative law enforcement role”). These special concerns undermine Hernandez's argument that, in conducting border inspections, officers are constrained by the same diligence requirement applicable to ordinary traffic stops. See Guzman-Padilla, 573 F.3d at 886 (distinguishing between a border seizure and “an ordinary vehicle seizure unrelated to the ‘myriad difficulties facing customs and immigration officials who are charged with the enforcement of smuggling and immigration laws'” (quoting United States v. Richards, 638 F.2d 765, 771 (5th Cir. 1981))).
The Court finds that the search of Hernandez's car was a reasonable, suspicionless border search. Therefore, IT IS RECOMMENDED that the motion to suppress (Doc. 45) be denied.
The parties shall have fourteen days from the date of service of this recommendation to file specific written objections with the district court. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b). The parties shall have fourteen days to file responses to any objections. No replies may be filed absent prior authorization by the district court.