United States v. Ricardo A. Bravo

PAEZ, Circuit Judge,

concurring in part and dissenting in part:

I agree with the majority that there was reasonable suspicion to destroy the access *1013plate of the toolbox and to damage its surrounding area in order to search the hidden compartment. I disagree, however, with the majority’s unnecessary discussion regarding whether the search was non-routine. The use of force, when coupled with significant damage to the property searched, can make a search non-routine. Nonetheless, because reasonable suspicion existed, I concur in the majority’s holding in Part II that the district court did not err by denying Bravo’s motion to suppress the evidence found in his truck. I also concur in Part IV.

I cannot agree, however, with the majority’s approval of handcuffing a suspect who poses no danger to border customs agents or others, who presents no risk of flight, and who is not suspected of being involved in a violent crime. Under the circumstances here, I would hold that Bravo’s detention became an arrest when he was handcuffed without justification. In my view, the majority gives the government carte blanche to engage in unnecessarily intrusive measures to detain individuals at the border without any justification whatsoever. Accordingly, I dissent from Part III of the opinion.

A. Search of the Toolbox

Because there was reasonable suspicion to justify the search of Bravo’s toolbox, it is unnecessary to discuss whether the search was non-routine. Nonetheless, the majority reaches this issue and, in so doing, misreads United States v. Molina-Tarazon, 279 F.3d 709 (9th Cir.2002). It suggests that all three factors in Molina-Tarazon — the use of force, risk of danger, and psychological intrusion — must be present for a search to be non-routine. Those factors, however, just “happened] to be the factors relevant in [that] case.” Id. at 713 n. 5.

The use of force and its consequences may be sufficient in a particular case to make a search non-routine. We said in Molina-Tarazon that the use of force alone raises the inference of a non-routine search. Id. at 714. In light of this pronouncement, a search tends to be non-routine if the item searched is “significantly damaged” or “significantly altered,” see United States v. Okafor, 285 F.3d 842, 846 n. 1 (9th Cir.2002), although, certainly, as the majority notes, “force alone is not dis-positive of a search’s routineness per se.” Maj. op. at 1006-07 n. 1. That significant force tends to make a search non-routine is clear from our discussion in Okafor, in which we addressed whether making an incision into a nylon bag constituted a non-routine search. See 285 F.3d at 846. We focused exclusively on the use of force and the extensiveness of the resulting damage. Id. Although we did not decide whether the search was non-routine, because reasonable suspicion existed to make the incision and because the record did not reveal the size of the incision or whether the bag was permanently damaged, id., we in no way suggested that we would need some other factor besides extensive force to find that the search was non-routine.

If force and resulting damage alone were insufficient to render a search non-routine, then customs inspectors at the border could completely destroy personal property without any justification. This cannot be the rule. Instead, force, when coupled with extensive damage or alteration, should be enough to make a search non-routine.

Here, although Bravo’s toolbox was not completely destroyed, the extent of the damage to the toolbox strongly suggests that the search was non-routine. The inspectors destroyed the access plate and damaged the area around it, which was on the bottom third of one side of the toolbox. *1014We do not know whether the customs inspectors ever restored Bravo’s toolbox to its original condition, although it is unlikely, based on Inspector Tijerina’s testimony that the access plate could not be restored with adhesive. As the majority explains, we need not decide whether the search was non-routine because it was justified by reasonable suspicion.

B. Whether Bravo Was Arrested When He Was Handcuffed

The majority errs by holding that Bravo’s detention did not become an arrest and therefore did not require probable cause. Bravo’s detention evolved into an arrest because the customs inspectors had no particularized justification for increasing the intrusiveness of the stop by handcuffing him.

We look to the principles set forth in Terr^-stop cases to guide our determination of when a detention at the border becomes an arrest.1 See Montoya de Hernandez, 473 U.S. at 542-44, 105 S.Ct. 3304. In determining under the totality of the circumstances whether a temporary detention has become an arrest, the Terry-stop eases generally involve two inquiries. The majority discusses only the first of these, in which we examine whether a reasonable innocent person would feel free to leave after brief questioning. If a reasonable person would not feel free to leave under the circumstances, then the detention becomes an arrest. The majority ignores the second, despite our case law and that of every other circuit.2 Under the second inquiry, we assess the intrusiveness of the measures used and whether such measures were reasonable under the circumstances. E.g., United States v. Rousseau, 257 F.3d 925, 929 (9th Cir.2001); Washington v. Lambert, 98 F.3d 1181, 1186 (9th Cir.1996). An intrusive detention that exceeds “a brief stop, interrogation and, under proper circumstances, a brief check for weapons” becomes an arrest if there is no justification for the restraint used. Miles, 247 F.3d at 1012 (quoting United States v. Robertson, 833 F.2d 777, 780 (9th Cir.1987)); United States v. Ricardo D., 912 F.2d 337, 341-42 (9th Cir.1990) (holding that a juvenile suspect was arrested when several officers confronted him and then detained him in a patrol car, because the suspect had not attempted to flee and did not pose any danger to the officers). To *1015conclude otherwise would be inconsistent with the “narrow scope of the Terry exception” and would in effect circumvent the probable cause requirement. See id. at 340 (citing Dunaway v. New York, 442 U.S. 200, 213, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979)). If a temporary detention evolves into an arrest, seized evidence is excludable in criminal proceedings unless the arrest is justified by probable cause. Washington, 98 F.3d at 1186.

The First Circuit’s decision in United States v. Acosta-Colon, 157 F.3d 9 (1st Cir.1998), illustrates how the detention/arrest inquiry has been applied to facts similar to those in this case, although the events at issue in that case did not take place at the border. In Acosta-Colon, dogs alerted to the possible presence of drugs in four suitcases checked on a domestic airline flight, and customs inspectors stopped several individuals, including Acosta-Colon, who they thought were associated with the bags before they boarded the flight. The inspectors informed the suspects that they were being taken to a “ ‘customs enclosure area’ pending investigation of some suspicious baggage.” Id. at 12. The inspectors did not ask any questions or conduct a pat-down search. The inspectors handcuffed the suspects and took them to the secure customs area, which took six to eight minutes. Once they reached their destination, the inspectors patted the suspects down, and, after finding no weapons, removed the handcuffs. The suspects were detained for approximately thirty minutes and missed their flight.

The First Circuit acknowledged that there is a reasonable person standard in determining when a detention becomes an arrest, but explained that when a detention “has one or two arrest-like features but otherwise is arguably consistent with a Terry stop,” it is difficult to assess how the detention would reasonably be perceived. Id. at 15. Under such circumstances, “the analysis must revert to an examination of whether the particular arrest-like measures implemented can nevertheless be reconciled with the limited nature of a Terry-type stop.” Id.

Applying that test, the court held that the lack of particularized suspicion for the restraint used converted Acosta Colon’s detention into an arrest. See id. at 21. The court explained that handcuffs — “one of the most recognizable indicia of a traditional arrest” — do not always convert a stop into an arrest. Id. at 18. Law enforcement cannot, however, routinely handcuff individuals. Id. at 18-19. Instead, law enforcement

must be able to point to some specific fact or circumstance that could have supported a reasonable belief that the use of such restraints was necessary to carry out the legitimate purposes of the stop without exposing law enforcement officers, the public, or the suspect himself to an undue risk of harm.

Id. at 19. In the court’s view, permitting handcuffing of Acosta-Colon would have sanctioned the use of handcuffs in every investigatory stop based on a suspicion of drug trafficking, a step the court was not prepared to take. Id.3

As in Acosta-Colon, handcuffing is the key factor to consider here. We have said that “handcuffing substantially aggravates the intrusiveness of an otherwise routine investigatory detention and is not part of a typical Terry stop.” Washington, 98 F.3d *1016at 1188 (quoting United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir.1982)); see also Robinson v. Solano County, 278 F.3d 1007, 1015 (9th Cir.2002) (en banc) (“In cases involving investigatory or Terry stops, we have consistently applied the principle that drawing weapons and using-handcuffs or other restraints is unreasonable in many situations.”); United States v. Miles, 247 F.3d 1009, 1012 (9th Cir.2001) (“Under ordinary circumstances, drawing-weapons and using handcuffs are not part of a Terry stop.”). In light of the fact that handcuffing goes beyond the level of intrusion warranted for a Terry stop, and “is a substantial factor in determining whether an individual has been arrested,” maj. op. at 1010, the majority should not have sanctioned its use here without determining whether it was reasonable under the circumstances of this case.4 See Washington, 98 F.3d at 1188-90.

We tolerate a certain amount of restraint, including the use of handcuffs, during a detention, without finding that there has been an arrest, if there is some particularized justification. For example, we have held that intrusive measures are permissible during a detention if there is a risk of flight, a risk that the suspect may be dangerous to law enforcement or to others, or a violent crime has just occurred or may soon occur. See, e.g., Washington, 98 F.3d at 1189 & nn. 12-16; United States v. Buffington, 815. F.2d 1292, 1300 (9th Cir.1987).

None of these justifications, however, exists here. Bravo exhibited no sign of nervousness or any other indication that he might attempt to escape, nor did he present any danger. His waist area was frisked before he was handcuffed, and no weapons were found. See Washington, 98 F.3d at 1190 (“[Tjhere was no specific information indicating that either [suspect] was armed.”). Nothing in the record indicates that Bravo was belligerent or uncooperative. See id. Instead, as Inspector Tijerina testified, Bravo was “very friendly, overly friendly, towards [him].” Nor was there any evidence that there had been a violent crime or that Bravo was about to commit such a crime. See id. Although Inspector Tijerina testified that he and Bravo were approximately 15 to 20 yards 'from Mexico and there was nothing to prevent someone from running back to Mexico, and that he was “aware of a situation where two other border patrol inspec*1017tors had been shot at th[at] very same port of entry by somebody that was being walked to secondary who was not handcuffed,” these generalized concerns were insufficient to show any particularized concern about Bravo.

Nor would a suspicion that Bravo was involved in drug trafficking have justified handcuffing him. In United States v. Del Vizo, 918 F.2d 821 (9th Cir.1990), after suspecting that the defendant had been involved in a drug transaction, police officers ordered the defendant out of his van at gunpoint, forced him to lie down on the street, and then handcuffed him. Id. at 823. We held that the defendant was arrested at this point. Id. at 825. We explained:

[T]he officers’ suspicion that [the defendant] may have been involved in drug trafficking did not justify the extent of restraints imposed upon [him]. There was no evidence that [the defendant] failed to comply with police orders; on the contrary, undisputed testimony in the district court indicated that [the defendant] did exactly as ordered. There was no other evidence suggesting that [the defendant] was particularly dangerous, especially once he had stepped out of the van, had been frisked and was lying on the ground.

Id. (internal citation omitted); see also United States v. Melendez-Garcia, 28 F.3d 1046, 1052-53 (10th Cir.1994)(“[T]he naked fact that drugs are suspected will not support a per se justification for use of guns and handcuffs in a Terry stop.”).

In sum, the generalized concerns articulated here were insufficient to justify the handcuffing. The majority’s holding to the contrary justifies the routine handcuffing of any individual who is escorted from a primary inspection station to a security office at the border without any particularized justification whatsoever. Not only is this inconsistent with the limited purpose of a temporary detention at the border, but it also conflicts with our precedent, which requires some particularized reason for the use of restraint during a detention.

Because there was no particularized reason to justify the intrusive restraint measures used here, I would hold that Bravo’s detention evolved into an arrest when he was handcuffed. The arrest was not justified by probable cause, because the officers had not discovered the drugs in Bravo’s car when he was arrested. Thus, Bravo’s subsequent confession should have been suppressed.5

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I cannot join the majority’s view that no particularized basis is necessary for the use of intrusive measures of restraint at the border. We permit such restraint only if it is justified by a particularized concern that the suspect poses a threat of danger, is at risk of flight, or is suspected of having been or will be involved in a violent crime. A general concern that accompanies events at the border is not sufficient.

. The majority asserts that "the Terry-stop framework is an inexact tool for use in the context of border stops and searches ... [because] officials can engage in routine searches and questioning without any suspicion whatsoever." Maj. op. at 1011-12 n. 8. Although the majority is correct that border customs agents have the right to ask routine questions without any suspicion, once an individual is detained we may use the Terry-stop cases to guide our analysis. See United States v. Montoya de Hernandez, 473 U.S. 531, 542, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985) ("The final issue in this case is whether the detention of respondent was reasonably related in scope to the circumstances which justified it initially.”); id. at 558, 105 S.Ct. 3304 (Brennan, J., dissenting) ("The Court supports its evasion of the warrant requirement ... by analogizing to the Terry line of cases authorizing brief detentions based on reasonable suspicion.").

. See United States v. Navarrete-Barron, 192 F.3d 786, 790 (8th Cir.1999); Houston v. Clark County Sheriff Deputy John Does 1-5, 174 F.3d 809, 814-15 (6th Cir.1999); United States v. Acosta-Colon, 157 F.3d 9, 18-19 (1st Cir.1998); Baker v. Monroe Township, 50 F.3d 1186, 1193 (3rd Cir.1995); United States v. Blackman, 66 F.3d 1572, 1576-77 (11th Cir.1995); United States v. Melendez-Garcia, 28 F.3d 1046, 1051-52 (10th Cir.1994); Oliveira v. Mayer, 23 F.3d 642, 645-47 (2d Cir.1994); United States v. Smith, 3 F.3d 1088, 1094 (7th Cir.1993); United States v. Sanders, 994 F.2d 200, 206 (5th Cir.1993); United States v. Nurse, 916 F.2d 20, 24-25 (D.C.Cir.1990); United States v. Perate, 719 F.2d 706, 709 (4th Cir.1983).

. The court also found that taking Acosta-Colon to an interrogation room was problematic, because it was not justified by any safety concerns particular to Acosta-Colon. See id. at 17. The fact that Acosta-Colon was not told how long he would be detained and not told that he was not under arrest was also of concern to the court. See id. at 15.

. Indeed, the majority minimizes the significance of handcuffing altogether, and understates the significance of handcuffing in United States v. Juvenile (RRA-A), 229 F.3d 737 (9th Cir.2000). As the majority explains, we held that RRA-A was arrested when she was handcuffed, not when she was frisked and detained prior to the handcuffing, and not when she was subsequently informed that she was under arrest. The majority focuses on the fact that the handcuffing occurred after drugs were discovered. Maj. op. at 1010-11. As we explained in United States v. Butler, 249 F.3d 1094 (9th Cir.2001), however, it was not the discovery of drugs, but rather the handcuffing and the long detention, that prompted us to hold that RRA-A was arrested when she was handcuffed:

It is true that the agents [in RRA-A] had found the drugs before the juvenile had been handcuffed, but the key to the case is not that the drugs had been found, but that to a reasonable person, being handcuffed to a bench for hours in a locked office is more than a temporary detention occasioned by [routine] border-crossing formalities.... To a reasonable person, being handcuffed to a bench in a locked office means that he or she is in custody.

Id. at 1100; see also id. (explaining that the fact that drugs were discovered in United States v. Doe, 219 F.3d 1009 (9th Cir.2000), was not the "key fact" in determining that the defendant was thereafter in custody; rather, the "key fact ... was that the [defendant’s] physical circumstances had changed from sitting on a bench in an office to being locked in a cell”).

. The discovery of the drugs did not constitute an intervening circumstance sufficient to remove the taint of the unlawful arrest. See Taylor v. Alabama, 457 U.S. 687, 692-93, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982) (holding that a fingerprint comparison that established probable cause did not "break the connection” between the prior illegal arrest and the subsequent confession, and thus the confession had to be suppressed); cf. United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1300 (9th Cir.1988) (explaining that we have found "a subsequent release from custody, an appearance before a magistrate, discussions with a lawyer, and subsequent convictions on unrelated charges” to be intervening circumstances sufficient to remove the taint from an illegal arrest).