United States v. Ricardo A. Bravo

by authorized law. The con- government

tends that if prior Perez-Corona’s convic-

tion is classified felony,” as “mere

guideline range months, is 21-27 and the

district court erred in sentencing him be-

low that range. us, On the record before agree.

we The district court gave no rea-

son for departing downward from the

guideline range when it imposed a sen-

tence of 19 months. “A sentencing judge

departing from the applicable guideline

range specifically must state his or her

reasons doing so.” See 18 U.S.C. 3553(c)(2);

§ Sanchez, United States v. 742, Cir.1991). Because court give district failed to any reason

for its departure months, downward to 19

we remand for resentencing. VACATED;

Sentence case REMAND-

ED for resentencing. America,

UNITED STATES of

Plaintiff-Appellee, BRAVO, A.

Ricardo Defendant-

Appellant.

No. 01-50159. Appeals, Court of

Ninth Circuit.

Argued and Submitted Oct. 2001.

Submission Withdrawn Nov. 2001.

Re-submitted May 2002. July

Filed O’SCANNLAIN, PAEZ,

Before: Circuit KING,* Judges, Judge. District O’SCANNLAIN, Judge. Circuit whether, We must decide under Amendment, a border search of Fourth a truck routine toolbox the bed of a detention became an arrest briefly inspector when a customs hand- cuffed the truck’s driver.

I 23, 2000, September On Ricardo A. Bra- from vo entered the United States Mexico Calexico, California, at the Port of West Entry occupant of as the sole a 1981 Chev- In response rolet Silverado. to routine Inspector from Albert questions Customs Tijerina during primary inspection, Bra- an vo stated that he was American citizen office, traveling post to the market and declare, nothing that he had and that he friend, had borrowed the truck from a explained why regis- which he was not its Tijerina Inspector thought tered owner. Benjamin Coleman, L. Federal Defend- being “overly-friendly” in an- Bravo was Inc., Diego, Diego, ers of San San Califor- swering questions. his He asked an Immi- nia, argued the cause for the defendant- gration Service Canine Enforcement Offi- Burns, appellant; Todd W. Federal De- cer, conducting pre-primary who was Inc., Diego, Diego, fenders of San San roving operation, to “run” his dog detector California, was on the briefs. around truck. dog The “alerted” to the toolbox in the bed of the truck. O’Toole, Patrick R. United States Attor- Flores, Inspector present Senior Carlos California, ney, Diego, argued San alert, during dog’s inspected the tool- plaintiff-appellee; cause for the Bruce R. by banging box its side and underside with Castetter, Assistant United States Attor- sound, his hands. He heard a solid Bunker, ney, and Renee M. Assistant suggested just that there than was more Attorney, Diego, San Cali- opened loose tools stored inside. He fornia, were on the brief. by undoing toolbox a latch on the lid and felt the toolbox’s inner floor and walls with doing, his hands. In so he noticed a depth discrepancy between what should have been floor of the box and the actual * waii, King, sitting by designation. Honorable Samuel P. Senior United Judge States District for the District of Ha- cabin, Tijerina Inspector saw the truck’s Inspector He notified the box. bottom at the plate compartment access to a discrepancy. space Tijerina at some of the box. He hammered base Bravo exit the Tijerina had Inspector plate place; this adhesive held of his a brief “frisk” and conducted vehicle plate the access but caused action released him. handcuffing Once area before waist damage to the toolbox. Inside secret handcuffed, Tijerina escorted Inspector Tijerina compartment, Inspector found security to await the to a office Bravo marijuana. kilograms over Tijerina Inspector of his truck. search hand- remove the Bravo that he would told Tijerina told Subsequently, Inspector security of- they reached the cuffs when smug- Bravo that he was under arrest for fice, yards away, about 30-40 which was drugs holding and moved him to a gling for both his that the handcuffs were and Special Agent When Juan cell. Customs informed safety Bravo’s. He also own and arrived, he advised Bravo of his Jacobo go if noth- that he would be free to Bravo Miranda which Bravo waived. rights, truck and that these found in his ing was agreed that he to Bravo then admitted were all routine measures. for transport drugs across the border that he does Tijerina testified Inspector $600. vehicle is everyone whose not handcuff jury Bravo for grand A federal indicted secondary inspection, but here to referred mari- marijuana possessing and importing discretion to handcuff he exercised his in juana with intent to distribute violation Bravo following for the reasons: Bravo 841(a)(1), 952, §§ of 21 and 960. U.S.C. border, only yards away from the

was court denied Bravo’s motion to The district flight risk potential made this a which in the evidence found his vehicle suppress situation; inspectors had two other border of the truck’s toolbox because search circumstances; a been shot under similar require routine and an elevat- did to Bravo’s vehi- dog detector had “alerted” suspicion. of Even if the search ed level cle; “overly friendly”; Bravo had been non-routine, had been the district court and, finally, noticed Inspector Flores had it supported by found that was reasonable space discrepancy the toolbox. Once motion suspicion. It also denied Bravo’s office, security Tijerina Inspector re- because, when suppress to his confession promised, patted- the handcuffs as moved to the Inspector Tijerina escorted Bravo clothing weapons Bravo’s outer for down handcuffs, merely security office in he had contraband, empty and had Bravo his been detained and was not under arrest. Bravo had been handcuffed for a pockets. decision, Bravo After the district court’s minutes, one to two and he was total of pled guilty to one count of the indictment unhandcuffed, wait, then left to the se- agreement pursuant plea to a conditional curity office. appeal. that allowed him to The district truck in Inspector Tijerina inspected the court Bravo to twelve months sentenced opened “take down area.” He day custody years and three of and one by releasing toolbox a latch on the lid and timely fol- supervised appeal release. This bottom, gave a tapped on the solid lowed. something as if was inside. He also sound In- space discrepancy that

observed the II had noted before. After spector Flores country’s bor- guarding our sliding the toolbox The task removing the tools responsi- laden immense away of the truck and from ders is one with down the bed bility. recognize required review cion “[c]areful We continued detention and x-ray examination of through suspected alimentary transit international bor border); security, drug smuggler canal Ramos- ders is essential to national Saenz, health, 36 F.3d at 61. and public welfare.” United States Cir.2002); Okafor, argues Bravo the search of the Montoya see also de Her toolbox on his truck awas non-routine nandez, 531, 544, border search because it involved force (“At (1985) border, 87 L.Ed.2d 381 If damage. and caused the search was merely than customs officials have more non-routine, it supported must have been investigative They law enforcement role. by a illegal activity. charged, along immigration are also with recently extended the non-routine bor officials, protecting with this Nation from der search doctrine vehicles and other may bring anything entrants who harmful objects just bodies. United States v. —not country.”). into this Searches of individu Molina-Tarazon, 279 F.3d 709 Cir. seeking country “may als entrance into our 2002), established a non-exhaustive list of crime, interdict those who would further factors when a determine search introduce harmful matter to the United morphs routine to non-routine: use from States, security or even threaten the of its force, danger of to person pos whose Okafor, citizens.” 285 F.3d at 845. searched, being psycho session is and the logical intrusiveness of the search. Thus, long it has been estab Molinar-Tarazon, agents customs re lished routine searches at our interna moved and dismantled the fuel tank of require objective jus tional do borders looking Molina-Tarazon’s truck for contra tification, cause, probable or a warrant. band. A mechanic hoisted the truck onto Hernandez, Montoya de U.S. a lift and straps removed several bolts and (“Routine 105 S.Ct. 3304 searches of the truck, that connected the tank to the persons and effects of entrants are not disengaged also electrical connections and subject any requirement to of reasonable removing hoses. Id. at 712. After warrant.”). cause, suspicion, probable or unit, sensing the mechanic discovered 31 course, Of the search must “routine” to be packages marijuana of inside the fuel tank. category fall under this permissi broad above, Id. Using the three factors listed suspicionless ble searches. We have deter search, we held that this was a non-routine involving mined that searches extended de agents but the customs had reasonable tention or an intrusive search of a person’s support to it. Id. at 717-18. We See, body are not routine. e.g., United apply now Molina-Tarazon’s factors to Ramos-Saenz, States v. the case before us. Cir.1994); Montoya see also de Hernan dez, 541 n. 105 S.Ct. 3304 First, Molinar-Tarazon noted (listing strip, cavity, body involuntary or x- “while force is a factor in assessing a ray intrusiveness, searches as non-routine border search’s dispositive. it is not searches). circumstances, In those cus example, jammed For if the lock is on a required ..., toms officials are agents to have “reason suitcase have to employ some suspicion” support able to the search. degree gain See of force to to access its interi- Gonzalez-Rincon, But or. this fact alone does not render Cir.1994) (reasonable suspi- overly search intrusive.” Id. at 714.1 The change analysis weight does not gave of the to the use of Molina-Tarazon Okafor toolbox, tools, if drilling, perma- or ment of the even done incorrect- breaking, use being of the item nently altering portion ly, grave would not have posed a risk to Id. constitutes the use of force. searched Bravo.

Here, Tijerina used tools to Inspector Third, Molina-Tarazon considered plate an access to a com- hammer loose psychologically whether the search was in- This dam- of Bravo’s toolbox. partment trusive, if specifically it would “cause fear or, toolbox, Tijeri- Inspector as aged apprehension person.” or a reasonable evidentiary hearing: at the na’s testified Molina-Tarazon, Id. at 716. In we held Q: put If to you [the toolbox] wanted person understandably that a would be you together again, back would have reluctant truck it drive his after had simply reapply able to some [adhe- been apart by been taken and reassembled put that have it in a and would sive] “government qualifica- contractor whose it position you where could have slid tions, reputation expertise un- are back? owner, known to the vehicle’s rather than No, A: sir. by a mechanic the owner knows and open The force used to Bravo’s toolbox Here, however, faulty trusts.” Id. this was a non-routine suggests reassembly of Bravo’s toolbox would not search; however, applicabil- at the we look risk, and, pose the same unlike Molina- fac- ity remaining Molina-Tarazon Tarazon the search where necessitated tors. dismantling reassembly components risk of Molina-Tarazon held functioning critical to the truck’s and safe danger poses a search bears on himself, operation, Bravo could confirm for the Fourth its reasonableness under layperson, as a that the toolbox was se- 714-15; also Amendment. Id. at see Win- truck. cured and re-bolted to the bed of his Lee, 753, 761, ston v. 470 105 S.Ct. U.S. Therefore, say See id. at 717. we cannot (1985) (“[T]he 1611, L.Ed.2d 662 extent 84 that the search of Bravo’s consti- toolbox may the procedure to which the threaten that would psychological tuted a intrusion safety or health of the individual” is an him apprehension. cause fear or degree the important measuring factor intrusiveness.). in Mo- Finally, of a search’s While we also note that the search did lina-Tarazon, delay. the defendant would have It not involve undue or excessive and great danger been in had the fuel tank only appears to have taken minutes. See reassembled, 279 improperly truck been 5; Okafor, n. 285 F.3d at 846. id. 713 (“An removing, disas- 715 error Thus, Tijerina used force Inspector while sembling reassembling por- then the and toolbox, damage, open the which caused a of a motor vehicle that contains tion remaining suggest factors potentially explosive highly flammable and was not non-routine. search gasoline might well result substance like case, not decide any we need consequences for the vehicle’s

disastrous owner.”), here, unbolting if the question reattaeh- this because even the removal and Okafor, 285 F.3d at 846 a search search non-routine.”

force in border added). Okafor, in dictum and cit- (emphasis was non-routine. We do not believe n. 1 Molina-Tarazon, ing speculated if to override Moli- that this dictum was meant significantly "bag been ha[d] defendant’s teaching clear that force alone 's na-Tarazon damage damaged, perhaps even absent if and per dispositive of a search’s routineness is not significantly altered or otherwise ha[d] it been se. with, tampered that would tend to make the 1008 ing suspicion hammering open

and of Bravo’s toolbox reasonable based on unusual search, it constituted a non-routine would of mud on truck’s undercar- distribution permissible long be so as the officers had tank); riage gas United States v. suspicion illegal activity. To reasonable (9th Cir.1986) Most, determination, this we “must look at make (finding suspicion based on the totality of the circumstances of [the] country in a source for package originating detaining whether the officer case see article, drugs, describing cheap a label objective basis particularized ha[d] package weighing and the more than ex- suspecting legal wrongdoing.” for United description). label’s pected Arvizu, 266, 122 States v. S.Ct. are satisfied that the district court (2002) 744, 750, (quotation L.Ed.2d in denying did err Bravo’s motion to omitted). experi marks While an officer’s suppress the evidence found in his truck. relevant to inquiry, ence is id. at 750- (stating may officers Ill upon experience draw their to make infer circumstances),2 may ences about the he We next examine whether the detention suspicion not base reasonable on “broad constituted an arrest. profiles suspicion which cast on cat entire egories people any individual questioning during Detention and particular person ized of the to routine searches at the border are consid stopped.” Sigmond- be United States v. meaning ered reasonable within the Ballesteros, 1117, 1121 Cir. Fourth Amendment. United States Es 2002) omitted). (quotation marks pericueta-Reyes, 631 F.2d Cir.1980) search, (“During such some Here, “overly-friendly” Bravo’s de period persons of detention for these is Tijerina’s meanor Inspector first raised Nevertheless, long inevitable. so as the suspicions. importantly, Inspector More are searches conducted with reasonable toolbox, tapped Flores which made a dispatch and the detention involved is rea sound, solid suggesting that there was search, sonably related in duration to the just more in than the toolbox loose tools. permissible detention under Finally, Inspector a space Flores noted Amendment.”); Montoya Fourth see also toolbox, discrepancy in of the base the Hernandez, 539-40, de 473 at 105 U.S. compartment. which indicated a hidden (“[N]ot only expectation S.Ct. 3304 is together, Taken sup these three factors privacy less at the border than in the plied Inspector Tijerina ample with indi interior, suspicion vidualized the Fourth Amendment balance engage a non- See, e.g., routine search of the toolbox.3 between the interests of the Government (find- Molina-Tarazon, 279 F.3d at and the privacy right 717-18 of the individual is Inspector Tijerina 2. rely dog’s had worked at the border that to on a “alert” for reasonable years. for four suspicion dog must be also reliable. Here, government provide did not evi- spends portion 3. Bravo a considerable of his dog’s reliability. dence of the Because we do arguing government rely brief that the cannot rely dog’s on the "alert” to establish that drug-sniffing dog’s on a “alert” unless it first agents customs had a reasonable dog's reliability. establishes the While dem illegal activity, Bravo's we do not decide onstrating dog's reliability a has heretofore government prove dog whether the must only required probable been to establish it reliable before uses its alert to establish cause, Lingenfelter, see United v. States 997 suspicion. reasonable 632, 1993), (9th argues F.2d 639 Cir. Bravo

1009 similarly person” that the favorably much to the held “reasonable more also struck border.”) (citations presupposes person. at test an innocent Government omitted). Bostick, a “de- 429, 438, At issue here is whether Florida v. 501 111 U.S. tention,” require probable (1991). does not 2382, 115 L.Ed.2d 389 “arrest,” cause, which must evolved into government argues The that the circum- by probable cause. supported be stances under which “reasonable innocent standard for The persons” they custody would believe are in arrest is not person is under whether are different at the border. Because person believes that he simply whether special surrounding concerns border leave, v. Men free to see United States is crossings, people expect greater intrusions 1870, denhall, 544, 100 S.Ct. 64 privacy. Montoya into their See de Her- (1980), rather whether a L.Ed.2d 497 but nandez, 538, 473 at U.S. 105 S.Ct. 3304 that he is person would believe (“[T]he Fourth Amendment’s balance of subjected “tempo to more than the being at qualitatively reasonableness different by occasioned border cross rary detention than the international border at the interi- Butler, v. ing formalities.” United States or.”); 74 Moya, United States v. F.3d Cir.2001). Thus, 1094, 1100 (11th Cir.1996) (“We 1120 stress custody an individual is de might enough events which be often to upon objective circumstances of pends ‘custody’ signal away from the border will “ situation,4 or whether ‘a reasonable enough not be to establish ‘custody’ person innocent such circumstances entry country.”). context of into the In- questioning would conclude that brief after deed, recognized special is well “[i]t ” be to leave.’ he or she would not free Butler, at apply rules the border.” Montero-Camargo, Therefore, F.3d 1098. the fact that (9th Cir.1999) (quoting influ- these events occurred the border Booth, United States v. inquiry ences into whether reason- Cir.1981)) added), (emphasis person able innocent would have believed (9th Cir.2000) (en aff'd, F.3d 1122 that he was under arrest. banc) (affirming panel’s decision on nar Bravo that the combina disturbing contends grounds, panel’s rower but not frisk, handcuffing, pat-down, tion of the on whether defendant standard or decision transformed his border custody).5 Supreme was in The Court has and shoe search6 surrounding was not free to circumstances we consider would believe that he The Mendenhall, liberty leave), to which of move- include "the extent 446 U.S. at with type is curtailed and the of force or ment (stating is under S.Ct. 1870 that an individual authority employed." United States Robert- purposes when arrest for Fourth Amendment 777, son, (9th Cir.1987). 833 F.2d 780 person "a would have believed reasonable leave"). was not free to that he Montero-Camargo held that the defendant custody pur- for Fifth Amendment was not Inspector Tijerina asked 6. Bravo testified poses, but its test is relevant to our Fourth shoes; however, Inspector to remove his him because the stan- Amendment determination Tijerina did not mention this fact in his testi- similar, custody dards for are if not identical. mony. The district court found that Bravo’s 318, 322, Cal., Stansbury Compare v. credible, testimony was not but even assum- 1526, (1994), S.Ct. 128 L.Ed.2d 293 114 Inspector Tijerina ing did remove and search Beraun-Panez, v. 812 F.2d United States shoes, addition of that fact does Cir.), (9th Bravo’s modified, 830 F.2d 127 580 analy- Cir.1987) tip totality not of the circumstances (stating that an individual is in cus- tody a toward arrest. See purposes Miranda when reasonable sis infra. 1010 circumstances, began found that the arrest a reason- into an arrest because

detention have felt person innocent would not able RRA-A was bench when handcuffed to the vehicle was to leave even after his free office, security in the locked not when she Certainly handcuffing is a sub- searched. detained, initially she was frisked and as stantial factor contended, actu- but also not when she was arrested, see has been United individual arrest, ally told that she was under as the (RRA-A), v. Juvenile States government argued. Id. at 743. Cir.2000) (“Given totality of ... we conclude that the circumstances here, Quite circumstances unlike the in- handcuffing RRA-A’s was the clearest RRA-A, juvenile defendant was hand- longer dication that she was no free in a security to a bench locked office cuffed point leave and therefore find it to be the drugs after the officers found the vehi- arrest.”); however, handcuffing alone is of riding; cle in which she had been at that Booth, at not determinative. See point, we determined she had been (“Handcuffing a does not nec- suspect “A arrested. hand- finding custody. essarily dictate security for four hours in a locked cuffed measures to insure Strong but reasonable office after narcotics search ‘would have safety public of the officers or the can ” believed that was not free to leave.’ [s]he necessarily compelling a be taken without Mendenhall, Id. (quoting U.S. finding suspect custody.”) that the was in 1870). (citations analogize If we to RRA- omitted); United States cf. (9th Cir.1983) A, Taylor, 716 F.2d ar- Bravo would not have been under (“[T]he handcuffs, reasonably if use of nec- rest until the officers moved him from the essary, substantially aggravating while cell, security holding office to the investigatory stop, intrusiveness of an does occurred after the search his toolbox necessarily Tetry stop convert a into not yielded illegal drugs. expressly RRA-A cause”). necessitating probable an arrest held that defendant was under “totality must consider the of the cir- arrest when she was escorted to the secu- just handcuffing cumstances” —not —to frisked, rity office, and made to wait for decide whether Bravo was arrested or the results of the search. merely detained. See 229 F.3d at RRA-A 743; Montero-Camargo, 208 F.3d at 1129. Doe, Similarly, in RRA-A, point, The case most on has (9th Cir.2000), the F.3d 1009 defendant similar, distinguishable facts. but office, security was taken to searched for RRA-A, agents when customs moved the contraband, weapons and and seated on a car in passen- which the defendant was a bench to wait a search of his vehicle. Id. secondary ger inspection for a more found, drugs 1012. Once were customs search, extensive the defendant was taken agents moved the defendant from the se- to an office and frisked. 229 F.3d at 741. curity office to detention cell. Id. We During secondary inspection, officers in custody held the defendant was not marijuana in pounds found 80 the vehi- security at the time he was escorted to the subsequently RRA-A cle. Id. hand- office, drugs but once were found he cuffed to a bench in a locked office security moved to a “no was detention cell reason- agent for the next four hours until an person able would have believed he was informed her she was under arrest Thus, free to leave.” Id. 1014. the rights. and advised her of her Miranda court, totality an analyzing Id. This the of the detention rose to arrest when the de-

1011 security promised, detention moved the office as was moved to a locked fendant cell.7 and he was not made to await the search Finally, results in handcuffs. the hand- to iso RRA-A and Doe allow us protected Inspector Tijerina’s cuffs both on Bravo’s impact handcuffing the had late safety prevented and In- flight. Bravo’s he was free to reasonable belief whether deed, only yards Bravo was from the RRA-A and Doe held leave. Because both him, nothing blocking border with customs security an individual to a escorting officers had been shot before in similar searching weapons for and office and them circumstances, (e.g., dog and evidence Ti Inspector is what contraband —which sound) alert, space discrepancy, solid cre- arrest, jerina did to Bravo—was not the illegal ated an individualized adding to the question for us is whether Thus, activity. Inspector Tijerina had par- handcuffed, a totality of the circumstances justification ticularized for his actions. security office yard 30-40 walk to the turns a detention into an arrest. Certainly negate an officer cannot First, Inspec- hold that it does not. simply by telling a custodial situation that the Tijerina tor told Bravo handcuffs suspect that he is not under arrest. See only safety for his temporary were both Lee, would be removed when and Bravo’s and (9th Cir.1982) curiam) (defendant (per office, they security which was reached custody though agents even informed away. a short distance See United States leave”); him 9559 that he was “free cf. Cir.2002) Yang, Butler, 249 at 1099 that the (finding F.3d (finding safety concerns made fact that an officer does not believe that he reasonable); brief use of handcuffs cf. probable has cause to make an arrest does D., United States v. Ricardo “in custody” not control the determina (9th Cir.1990) that officers (holding tion). However, Tijerina’s Inspector state “may suspect move a from the location of only tempo ments that the handcuffs were stop converting stop initial totality rary are a factor safety necessary to an arrest it is for when analysis; circumstances his reassurances reasons”). Second, security Inspector or helped negate aggravating the handcuffs’ Tijerina told that he would be free Bravo detention, suggest influence and mere not if in his truck. nothing to leave was found arrest. Third, only Bravo was handcuffed for one together, Taken the circumstances during yard walk. to two minutes 30-40 Bravo’s detention lead a reasonable would Yang, (finding F.3d at 950 See would innocent to believe he brief time defendant endured handcuffs once search was over and go ar- be free negated conclusion that he was under rest). Therefore, Fourth, any questions.8 re- the handcuffs were he answered Butler, agents ally, his belt was not confiscated. It remains 7. In customs escorted de- shoes, security happened to Bravo’s see fendant from his vehicle to a office unclear what search, supra they apparently not agent pat-down note but were where an conducted a belt, and confiscated. confiscated defendant's shoes and placed holding in a locked cell. 249 F.3d him ignoring custody began that we are at 1097. We held that when The dissent’s assertion caselaw, portion placed locked cell an entire of our the defendant was in the infra 1013-15, Relying Terry-stop puzzling. on his shoes belt taken. at 1101. had Id. cases, contrast, argues two briefly that there are Bravo was handcuffed— dissent approaches a deten- placed told that in locked cell-—and was only temporary; The first is whether the handcuffs were addition- tion becomes an arrest. Thus, reject facially constitutional. we finding in that not err the district court did by as foreclosed Mendo arrest, argument Bravo’s rather under but Bravo was not. za-Paz. merely was detained.9 Similarly, argues Ap Bravo that

IV prove to requires government the prendi type quantity the and that he knew both argues Bravo the Finally, imported. Our re drug possessed he and indicted, 21 he was under which statute Carranza, in v. cent decision United States 960, facially § unconstitutional is U.S.C. (9th Cir.2002), 634, forecloses 289 F.3d jury, rather than a judge, a trial because argument this as well. drugs and amount of the'type determines turn, involved, which, length the impacts in V Apprendi In v. imposed. of the sentence reasons, foregoing For we conclude the 466, 120 Jersey, 530 U.S. S.Ct. New deny- that the district court did err (2000), Supreme 147 L.Ed.2d 435 the suppress to evidence ing Bravo’s motion the “any than fact[other Court held motion to dismiss his indictment. and increases prior conviction] fact of a beyond pre a crime the AFFIRMED. penalty statutory maximum must be sub scribed PAEZ, concurring part Judge, Circuit beyond a jury, proved and mitted to a dissenting part: and In States v. reasonable doubt.” United majority that there was Mendoza-Paz, agree I with the Cir.2002), suspicion destroy § to the access 960 is reasonable squarely we held Ohio, activity. Terry illegal person innocent would feel free 1, 21-22, 27, 392 U.S. questioning, which is the leave after brief contrast, (1968). By at the bor- L.Ed.2d 889 analysis apply. whether the we The second is engage routine searches der officials can the measures used was rea- intrusiveness of circumstances, questioning any suspicion what- which we sonable under the Hernandez, Montoya de ask, soever. See implicit explicitly in our did not but is imperfect fit 105 S.Ct. 3304. This event, any two- analysis. In the dissent’s Teny-stop framework and border between the precedent,

pronged approach, at least in our Doe, Butler, probably why in searches is analysis. actually into one In United is fused the border —we RRA-A—all of which involved Miles, (9th Cir.2001), 247 F.3d 1009 States analysis. apply preferred did not the dissent's we described the test for when whether, Instead, simply we asked under Terry-stop becomes an arrest: whether circumstances, totality a reasonable stop, interroga- “a brief detention exceeded person go would feel free to after innocent circumstances, and, proper a brief tion under 1013; RRA-A, Doe, questioning, 219 F.3d at weapons.” (quotation Id. at 1012 check for 743, or, specifically, more wheth- Then, omitted). stop proceeds "if the marks person being er the would believe that he limitations," which, course, beyond these temporary subjected "more than a deten- did, if, ... stop of Bravo “an arrest occurs by crossing tion occasioned border formali- circumstances, under the a reasonable Butler, Terry- at 1100. ties.” Our that he was not free to leave would conclude simply helpful stop jurisprudence less than (quotation questioning.” Id. marks after brief ap- which we have the border search cases omitted) omitted) added). (citation (emphasis plied here. Contrary approach, our case- to the dissent's compels analysis applied. we have law that Bravo was not arrest- 9. Because we hold event, ed, Teny-stop question any framework is of whether we do not reach sup- of bor- have been an inexact tool for use in context his later confession should poisonous Teny- pressed the "fruit of the stops and searches. To conduct a under der particularized doctrine. stop, have a tree” an officer must damage and to its The use of plate consequences of the toolbox force and its may in in surrounding particular area order to search the be sufficient a case to disagree, I howev- make search non-routine. in compartment. hidden We said er, Molina-Tarazon the use of majority’s unnecessary discus- force with alone raises the the search was inference of a non-routine regarding sion force, search. In light pro- use of when cou- Id. of this non-routine. The nouncement, to a search tends to non- pled significant damage proper- with be searched, routine if the item ty “significant- can make a search non-rou- searched is Nonetheless, ly damaged” altered,” or “significantly because reasonable see tine. existed, Okafor, majori- I concur in the United States v. suspicion (9th Cir.2002), n. 1 although, certainly, II ty’s holding Part the district as notes, majority “force by denying court did not err Bravo’s mo- alone is not dis- positive of a per tion to the evidence found in his search’s routineness se.” suppress Maj. n. op. significant truck. I concur in Part at 1006-07 1. That also IV. force tends to make a search non-routine however, major- agree, I cannot with the Okafor, is clear from our discussion in ity’s approval handcuffing suspect who which we addressed whether making poses danger agents no to border customs nylon bag incision into a constituted non- others, presents flight, or who no risk of routine search. See 285 at 846. suspected being and who is not involved exclusively focused on the use of force and in a violent crime. the circum- Under the extensiveness of resulting damage. here, stances I would hold that Bravo’s Although Id. we did decide whether detention became an arrest when he was non-routine, the search was because rea- justification. my handcuffed without suspicion sonable existed to make the inci- view, majority gives government sion and because the record did not reveal engage unnecessarily carte blanche to the size of the incision or bag whether the intrusive measures to detain individuals id., permanently damaged, inwe no justification any the border without what- way suggested we would need some I Accordingly, soever. dissent from Part other factor besides extensive force to find III opinion. that the search was non-routine. If resulting damage force and alone A. Search of the Toolbox were insufficient to render a search non- routine, inspectors then customs at the Because there was reasonable destroy completely personal border could toolbox, justify to the search of Bravo’s it property any justification. This unnecessary to discuss whether Instead, force, cannot be the rule. when Nonetheless, search was non-routine. coupled with damage extensive or altera- and, in majority reaches this issue so do tion, enough should be to make search ing, misreads United States v. Molina- non-routine. Tarazon, (9th Cir.2002). 279 F.3d 709 It Here, suggests although all three factors Molina- Bravo’s toolbox was not force, danger, completely destroyed, Tarazon —the use of risk of the extent of the damage strongly suggests psychological pres intrusion —must be the toolbox for a in- ent search to be non-routine. Those that the search was non-routine. The factors, however, just “happened] spectors destroyed plate be the access it, the factors relevant in at damaged [that] case.” Id. the area around which was on 713 n. 5. the bottom third of one side of the toolbox. these, majority only the first of in- discusses the customs whether do not know

We we examine whether reasonable toolbox to Bravo’s ever restored spectors condition, it is unlike- would feel free to leave although innocent original its testimony Tijerina’s If Inspector questioning. on a reasonable ly, based after brief plate could not be restored that the access not feel free to leave under person would majority explains, circumstances, adhesive. As the with then the detention be the search need not decide whether majority ignores we arrest. The comes an justified by it was non-routine because second, that of despite our case law and suspicion. the second every other circuit.2 Under the intrusiveness of the inquiry, we assess Bravo Arrested When B. Whether Was measures used and whether such measures He Handcuffed Was under the circumstances. were reasonable Rousseau, Bra- by holding that 257 majority The errs v. F.3d E.g., United States (9th Cir.2001); not become an arrest 925, Washington detention did v. vo’s 929 Cir.1996). require probable (9th not Lambert, 1181, 1186 and therefore did 98 F.3d an evolved into cause. Bravo’s detention that exceeds “a An intrusive detention had inspectors the customs arrest because and, interrogation proper under stop, brief justification for increas- particularized no circumstances, weapons” a brief check for stop by hand- intrusiveness of the ing the justifica if no becomes an arrest there is cuffing him. Miles, 247 restraint used. tion States v. (quoting F.3d at 1012 United principles set forth look (9th Robertson, 777, F.2d 780 Cir. 833 determina guide cases to our Terr^-stop D., 1987)); 912 States v. Ricardo United at the border tion of when a detention (9th Cir.1990) 337, (holding F.2d 341-42 Montoya de Her an arrest.1 See becomes juvenile suspect was arrested when that a nandez, 542-44, 105 473 U.S. at S.Ct. him confronted and then several officers totality under the of the car, patrol him in a because the detained temporary deten circumstances and did arrest, suspect attempted had not to flee Terry-stop an tion has become officers). any danger to the To pose two The generally inquiries. eases involve Terry-stop rizing detentions based on reasonable majority brief 1. The asserts that "the suspicion."). tool for use in the framework is an inexact stops ... [be and searches context of border engage Navarrete-Barron, can in routine cause] officials v. 192 2. See United States any suspi questioning searches and without 786, (8th Cir.1999); v. 790 Houston F.3d Maj. op. 1-5, at 1011-12 n. 8. cion whatsoever." County Deputy John Does Clark Sheriff majority Although 809, (6th Cir.1999); is correct that border United 174 F.3d 814-15 agents right Acosta-Colon, 9, (1st to ask routine customs have the States v. 157 F.3d 18-19 suspicion, questions any once an indi 1998); Township, v. Monroe 50 F.3d Cir. Baker may Terry-stop 1186, (3rd 1995); we use the vidual is detained States v. Cir. United 1193 1572, analysis. Blackman, (11th guide See United States cases to 66 F.3d 1576-77 Cir. Hernandez, 531, 542, Melendez-Garcia, 1995); Montoya de v. v. 28 United States 3304, (1985) ("The 1046, (10th Cir.1994); 87 L.Ed.2d 381 105 S.Ct. Oliveira F.3d 1051-52 642, (2d Cir.1994); Mayer, in this case is whether the deten final issue 23 F.3d 645-47 Smith, 1088, (7th reasonably respondent was related in F.3d 1094 tion of United States v. 3 Sanders, 1993); justified it scope to the circumstances which States v. 994 Cir. United (Bren 200, 1993); United States v. initially.”); id. at 105 S.Ct. 3304 206 Cir. Nurse, (D.C.Cir.1990); nan, J., ("The 24-25 dissenting) supports Court its Perate, requirement by warrant ... evasion of the 1983). analogizing Terry of cases autho Cir. to the line arrest, explained conclude otherwise would be inconsistent but that when a detention scope Terry excep with the “narrow “has one or two arrest-like features but and would in effect circumvent arguably tion” otherwise is consistent with a probable requirement. cause at Terry stop,” See id. it is difficult to assess how the York, (citing Dunaway v. New reasonably perceived. detention would be 200, 213, circumstances, 60 L.Ed.2d Id. at 15. U.S. Under such “the (1979)). analysis If a must temporary detention revert to examination of arrest, the particular evolves into an seized evidence is arrest-like mea- implemented sures can proceedings excludable in criminal unless be nevertheless reconciled with the limited justified by probable the arrest cause. nature of a Terry-type stop.” Id. Washington, 98 F.3d at 1186. test, Applying that the court held that First

The Circuit’s decision United (1st particularized the lack of Acosta-Colon, suspicion for the v. States 157 F.3d 9 restraint used converted Acosta Cir.1998), Colon’s illustrates how the detention/ar- detention into arrest. See id. at 21. inquiry applied rest has been to facts simi- explained The court that handcuffs—“one case, although lar to those this recognizable of the most indicia of a tradi- events at issue in that case not did take tional always arrest” —do not convert a Acosta-Colon, place at In the border. stop into an arrest. Id. at 18. Law en- dogs possible presence alerted to the of cannot, however, forcement routinely drugs four suitcases checked on a do- handcuff individuals. Id. at In- 18-19. flight, inspec- mestic airline and customs stead, law enforcement individuals, stopped including tors several point must be able to to Acosta-Colon, specific some they thought who were as- fact or circumstance that could have bags they sociated with the before boarded supported a reasonable belief that flight. inspectors The informed the necessary use of such restraints was to suspects “ they being that were taken to carry out legitimate purposes ‘customs pending enclosure area’ investi- stop exposing law enforcement gation suspicious baggage.” of some Id. at officers, public, suspect or the him- inspectors any 12. The did not ques- ask self to an undue risk of harm. tions or conduct a pat-down search. The inspectors suspects handcuffed the and view, Id. at In permitting 19. the court’s area, took them to the secure customs of handcuffing Acosta-Colon would have eight which took six minutes. Once in every sanctioned the use of handcuffs destination, they reached their inspec- investigatory stop based on a of and, patted down, suspects tors after drug trafficking, step the court was not finding weapons, no removed the hand- prepared to take. Id.3 suspects cuffs. The were detained for ap- Acosta-Colon, handcuffing As in is the proximately thirty minutes and missed key factor to consider here. We have said flight. their “handcuffing substantially aggravates that The acknowledged First Circuit the intrusiveness of an otherwise routine there is a investigatory standard in part detention and is not of a typical Terry stop.” when a detention becomes an Washington, 98 F.3d 3. taking The court also found that id. at Acosta- See 17. The fact that Acosta-Colon was interrogation proble- long Colon to an room was not told how he would be detained and matic, justified by any because it was not not told that he was not under arrest was also safety particular concerns to Acosta-Colon. to the See id. at 15. concern court. or to Bautista, law enforcement dangerous to be v. United States (quoting (9th Cir.1982)); just has occurred others, a violent crime see or F.2d See, County, e.g., Washington, 278 F.3d may v. Solano occur. Robinson or soon

also banc) (“In Cir.2002) (en (9th 12-16; nn. United at 1189 & Terry or involving investigatory cases Buffington, States consistently applied have stops, we Cir.1987). weapons using- drawing

principle however, justifications, these None is unreason other or restraints handcuffs sign of exhibited no here. Bravo exists situations.”); many able any or other indication nervousness Cir.2001) Miles, 1009, 1012 he attempt escape, nor did might he circumstances, (“Under ordinary drawing- His waist area was any danger. present part using handcuffs are weapons and handcuffed, no before he was frisked the fact Terry light stop.”). aof Washington, 98 See weapons were found. of intru handcuffing goes beyond the level (“[Tjhere specific no was F.3d at Terry stop, and for a “is a warranted sion [suspect] indicating that either information determining in whether factor substantial armed.”). in record indi- arrested,” Nothing the maj. op. was individual has been an un- belligerent or 1010, majority not have sanc that Bravo was the should cates at Instead, Inspec- determining here without id. as cooperative. its use See tioned testified, “very under the cir it was Bravo was Tijerina tor Washington, of this See overly friendly, case.4 towards friendly, [him].” cumstances F.3d at 1188-90. there had evidence that any Nor was there Bravo was a crime or that been violent amount of re- tolerate a certain id. such a crime. See about to commit handcuffs, straint, dur- including the use of that Tijerina testified Although Inspector detention, finding that ing a there 15 to 20 approximately Bravo were he and arrest, partic- if there is some been has nothing and there was yards 'from Mexico example, justification. For we ularized running back to prevent to someone from per- measures are held that intrusive have Mexico, of a and that was “aware situa- he if there is during a a missible detention patrol inspec- may tion where two other border suspect that the flight, of a risk risk handcuffed, Indeed, key but the to the case is signifi- been majority minimizes the the found, handcuffing altogether, and under- drugs cance of had been but that not that the handcuffing significance in Unit- the of states being person, to to a reasonable handcuffed (RRA-A), v. Juvenile ed States is in a locked office bench hours more (9th Cir.2000). majority explains, we As the by temporary detention occasioned than a when she held that RRA-A was arrested was border-crossing To formalities.... [routine] handcuffed, not she was frisked and when person, being handcuffed to a a reasonable handcuffing, prior and not detained to the or office means that bench in locked he subsequently was informed that she when she custody. she is in majority focuses was under arrest. The on 1100; (explaining id. that Id. at see also handcuffing that the occurred after the fact drugs in fact that were discovered United drugs Maj. op. at were 1010-11. discovered. (9th Cir.2000), Doe, F.3d 1009 States Butler, 249 explained States v. As we in United "key in that was not the fact" Cir.2001), however, it was F.3d 1094 rather, custody; defendant was thereafter discovery drugs, the hand- but rather detention, prompted "key cuffing long [defendant’s] that ... was that and the fact when changed was arrested she us to hold RRA-A sit- physical had from circumstances handcuffed: was being ting a bench an office locked on agents [in RRA-A] true that the had It is cell”). drugs juvenile before the had found sum, very port same In generalized had been shot concerns articu- th[at] tors entry by somebody being justify lated here were insufficient handcuffing. majority’s secondary holding who was not hand- The to the walked to contrary justifies cuffed,” handcuffing the routine generalized these concerns were any individual who is any con- escorted from a particularized insufficient to show primary inspection security station to a Bravo. cern about office at the any particular- border without suspicion that Bravo was Nor would justification only ized whatsoever. Not justified drug trafficking have involved this inconsistent with the limited purpose handcuffing him. United States v. Del border, of a temporary detention at the Vizo, Cir.1990), after 918 F.2d 821 but it also precedent, conflicts with our had suspecting the defendant been requires particularized some reason transaction, in a offi- drug police involved during for the use of restraint a detention. van cers ordered the defendant out of his particularized Because there was no rea- gunpoint, forced him to lie down on the justify son to the intrusive restraint mea- street, and handcuffed him. Id. at then here, I sures used would hold that Bravo’s that the ar- 823. We held defendant was detention evolved into an arrest when he point. rested at this Id. at 825. We ex- justi- was handcuffed. The arrest was not plained: cause, by probable fied because the offi- officers’ defen- [T]he [the drugs cers had not discovered the in Bra- may drug have been involved in dant] Thus, vo’s car when he was arrested. trafficking justify did extent subsequent Bravo’s confession should have imposed upon restraints There [him]. suppressed.5 been was no that [the defendant] evidence ?}; ‡ orders; to comply police failed with on ^ ^ contrary, undisputed testimony I join majority’s cannot view that no the district court indicated that de- [the particularized necessary basis is for the exactly did as ordered. There fendant] use intrusive measures of restraint at suggesting was no other evidence that permit only the border. We restraint such particularly danger- [the defendant] justified if by particularized it is concern ous, especially stepped once he had out suspect poses danger, a threat of van, of the had been frisked and was flight, suspected is at risk of or is lying ground. on the having been or will be involved a violent general accompa- A crime. concern (internal omitted); Id. citation see also nies events at the border is not sufficient. Melendez-Garcia, United States v. Cir.1994)(“[T]he 1052-53 naked drugs suspected sup fact that are will not

port per justification guns se for use of in Terry stop.”).

and handcuffs discovery drugs suppressed); 5. The did not consti- sion had to be cf. intervening Delgadillo-Velasquez, tute an circumstance sufficient to 1988) (explaining remove the taint of the unlawful arrest. See Cir. we have found Alabama, 687, 692-93, Taylor subsequent custody, ap "a release from (1982) (holding pearance magistrate, 73 L.Ed.2d 314 before a discussions lawyer, subsequent fingerprint comparison that a with a convictions on established probable charges” intervening did not "break the connec- unrelated to be circum cause illegal prior tion” between the stances sufficient to remove the taint from an arrest and the confession, arrest). subsequent illegal and thus the confes-

Case Details

Case Name: United States v. Ricardo A. Bravo

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 8, 2002

Citation: 295 F.3d 1002

Docket Number: 01-50159

Court Abbreviation: 9th Cir.