153 F. Supp. 3d 1261
S.D. Cal.2015Background
- Border Patrol operates a permanent Highway 86 checkpoint near Westmorland, CA; over a recent three-year period 1,579 of ~1,746 apprehensions were immigration-related and 167 were drug-related.
- On Feb. 28, 2015, Kenneth Summers stopped at the checkpoint in a Volkswagen Jetta; Border Patrol agents questioned him and a canine (Boeli) sniffed the vehicle.
- Agent Miranda testified Boeli "alerted" at the trunk area; agents asked Summers to open the trunk both at primary and after directing him to secondary; Summers opened the trunk with his key fob and two persons were found concealed inside; Summers was arrested and later indicted for transporting illegal aliens.
- Government relied on Boeli’s training/certification and handler testimony to establish probable cause; defense offered an expert who disputed that a dog can reliably distinguish concealed-human odor in a moving vehicle and challenged the training records.
- At an evidentiary hearing the court received testimony about the canine’s alerts, training records, and the circumstances of the request to open the trunk; government could not show Summers affirmatively and voluntarily consented to the trunk search.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality of checkpoint stop | Checkpoint is immigration-focused and lawful | Checkpoint has shifted toward drug interdiction; unlawful | Denied — checkpoint constitutional (primary purpose immigration) |
| Validity of consent to open trunk | Agents asked for consent; Summers was not seized at time of request | Summers was ordered to open trunk and did not feel free to refuse | Held no voluntary consent — government failed to prove consent |
| Probable cause based on canine alert | Canine’s alert and handler certification supplied probable cause | Alert was only preliminary/interest behavior; training and certification unreliable | Held insufficient probable cause — canine behavior did not establish probable cause |
| Suppression remedy | Evidence admissible if consent or probable cause present | Evidence should be suppressed as fruit of unconstitutional search | Granted in part — checkpoint evidence not suppressed; trunk-search-derived evidence suppressed |
Key Cases Cited
- United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (upheld permanent immigration checkpoints without individualized suspicion for brief stops)
- United States v. Soto-Camacho, 58 F.3d 408 (9th Cir. 1995) (checkpoint stops constitutional where primary purpose is immigration enforcement)
- City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (invalidated checkpoints whose primary purpose is general narcotics interdiction)
- Florida v. Harris, 568 U.S. 237 (2013) (dog certification/training can support probable cause but reliability may be challenged)
- Illinois v. Gates, 462 U.S. 213 (1983) (probable cause assessed under totality of circumstances)
- Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (government bears heavy burden to prove consent to search was voluntary)
- United States v. Davis, 530 F.3d 1069 (9th Cir. 2008) (automobile exception requires probable cause that vehicle contains contraband)
- United States v. Thomas, 726 F.3d 1086 (9th Cir. 2013) (discusses defendant’s right to challenge canine reliability)
- United States v. Chan-Jimenez, 125 F.3d 1324 (9th Cir. 1997) (factors showing lack of voluntariness in consent searches)