Juan Roberto Albino v. Lee Baca
709 F.3d 994
9th Cir.
2013
Check Treatment
Docket

Juan Roberto ALBINO, Plaintiff-Appellant, v. Lee BACA, Los Angeles County Sheriff; Los Angeles County, Defendants-Appellees.

No. 10-55702

United States Court of Appeals, Ninth Circuit

March 12, 2013

708 F.3d 994

Juan Roberto Albino, Corcoran, CA, pro se. Andrea Renee St. Julian, Esquire, San Diego, CA, for Plaintiff-Appellant. Catherine Mason Mathers, Collins Collins Muir & Stewart LLP, South Pasadena, CA, for Defendants-Appellees.

tial search, because I agree with the majority that reasonable suspicion was not required. The relevant inquiry here is what suspicion existed after all of Cotterman‘s electronics were searched, and he and his wife were interrogated separately, and every piece of evidence obtained corroborated the Cottermans’ story about vacationing in Mexico. The only hint of suspicion remaining at that point—after the initial border search and interrogations—was the single password-protected file, which I agree with the majority is insufficient, by itself, to sustain a finding of reasonable suspicion. See (“[T]o establish reasonable suspicion, an officer cannot rely solely on generalizations that, if accepted, would cast suspicion on large segments of the lawabiding population.“).

V. Conclusion

Reasonable suspicion has no place in property searches at the border, as the Supreme Court has consistently held. See , (“Time and time again, we have stated that searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.“). Imposing a reasonable suspicion requirement here forces courts and border patrol agents to engage in just the “sort of decision-making process that the Supreme Court wished to avoid in sanctioning expansive border searches.” (citation omitted) (Callahan, J. concurring). Rather than rewrite the border search exception, as the majority does, I would affirm the district court‘s application of the extended border search doctrine to Cotterman‘s case, which appears most appropriate given the extensive lapse in distance and time between the first and the second search. Additionally, I would hold the government to its burden of proof in determining that reasonable suspicion was absent here. Under the doctrine of this case, the majority sweeps in thousands of innocent individuals whose electronic equipment can now be taken away from the border and searched indefinitely, under the border search exception.

I respectfully dissent.

ORDER

KOZINSKI, Chief Judge:

Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.

Michelle GILSTRAP, an individual, Plaintiff-Appellant, v. UNITED AIR LINES, INC., a Delaware Corporation, Defendant-Appellee.

No. 11-55271

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 9, 2012. Filed March 12, 2013.