CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, September 16, 2005

9th Circuit: No Reasonable Suspicion Needed for Border Patrol Agents to Disassemble Cars to Search for Contraband

From (The Recorder)--This past Wednesday, the 9th U.S. Circuit U.S. Court of Appeals, ruled that, in their search for contraband, border agents "may disembowel gas tanks, drill holes in truck beds and disassemble car doors without reasonable cause for suspicion." Judge Betty Fletcher wrote a concurrence to her own opinion in U.S.A v. Chaudhry, 05 C.D.O.S 8344, in which she expressed her "'distaste for the government's game-playing.'...The game-playing involved the government's goal of getting an appeals court to agree that border agents could take apart an automobile without apparent suspicion," even though all three cases involved "clear reasons for suspicion that the government chose not to enter into evidence -- from drug-sniffing dogs to visibly nervous drivers."  Still, according to Judge Fletcher, "the government wanted confirmation that no suspicion is required for extensive, intrusive searches at the border...This would have an ancillary benefit for the government -- it would not have to prove the reliability of its drug-sniffing dogs."

"The question of whether the government may conduct such extensive searches without suspicion, she added, "'is an entirely fictional construct. Suspicion existed in each case, and in my view, review of cases at the appellate level is a waste of judicial resources. The only possible purposes are the government's desire to push the envelope to its limits: to find out how much destruction it can do without any suspicion, and to avoid proving it uses reliable dogs.'"

"Northern District of California Federal Defender Barry Portman said Fletcher seemed constrained by the longstanding trend of U.S. Supreme decisions expanding the freedom of border guards to conduct random searches." The full story... [Mark Godsey]

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