dissenting:
I respectfully dissent.
In United States v. Flores-Montano, the Supreme Court recently left open the question of whether and when destructive searches of property at the border might violate the Fourth Amendment. 541 U.S. 149, 124 S.Ct. 1582, 1586-87, 158 L.Ed.2d 311 (2004); United States v. Camacho, 368 F.3d 1182, 1185 (9th Cir.2004); United States v. Bennett, 363 F.3d 947, 951 (9th Cir.2004). In doing so, the Court took great pains to distinguish the circumstances presented by Flores-Montano with those involving a destructive search, and to emphasize that the search in that case was non-destructive.1 124 S.Ct. at 1586.
The majority answers this open question by holding that the government may destroy all personal property that does not affect vehicular operation at the border without any suspicion of criminal activity. I do not read Flores-Montano that broadly. The clearer implication from Flores-Montano is that there are Fourth Amendment limits to the ability of the govern-rnent to destroy property at the border. This is consistent with the Supreme Court’s view in other contexts that “ ‘[excessive or unnecessary destruction of property’ ” can render police conduct unreasonable under the Fourth Amendment.” United States v. Tueller, 349 F.3d 1239, 1245 (2003) (quoting United States v. Ramirez, 523 U.S. 65, 71, 118 S.Ct. 992, 140 L.Ed.2d 191 (1998)). It is also consistent with the Supreme Court’s oft-repeated statement that the “touchstone of the Fourth Amendment is reasonableness,” which “is measured in objective terms by examining the totality of the circumstances.” Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996).
Thus, rather than adopt a bright line rule and give the government carte blanche to search and destroy all personal property at the border that does not affect vehicular operation, I would employ the usual, common sense, totality of the circumstances balancing test to determine when a search is so destructive as to re*1102quire reasonable suspicion. In the present context, the major factors included in this analysis would be the degree of destruction, the ease with which the damage can be repaired, and the convenience, cost, and efficiency of non-destructive or less-destructive searching methods that were available at the search site.
In this case, such factors clearly demonstrate that reasonable suspicion was required to cut open Cortez-Rocha’s spare tire. Reasonable, non-destructive search methods were readily accessible. The government admits that both a drug dog and a density buster were available at the site. There was nothing preventing the inspectors from assessing the relative tire weight as typical or unusually heavy; indeed, in this case, the tire was removed from the car. In fact, the government used all three of these techniques before cutting open the tire, any of which could create the requisite reasonable suspicion. In addition, the government could have removed the tire from the rim without destroying it.
However, rather than rely upon reasonable suspicion in this case, the government instead seeks a broad rule permitting it to indiscriminately destroy the property of any person crossing the border. I would not hold, as the majority does, that in these circumstances the government may ruin the spare tire of every car that crosses the border, regardless of the resulting safety risks or cost to the motorist.2
Although the majority opinion cites Flores-Montano’s admonition against balancing tests, that admonition is against employing a routine/non-routine balancing test to border searches in general. Flores-Montano, 124 S.Ct. at 1585. A totality of the circumstances test to assess whether a search is so destructive as to require reasonable suspicion need not be employed when searches are non-destructive, see, e.g., Camacho, 368 F.3d at 1185, a rule that fully respects the fact that most property searches at the border are, by virtue of the fact that they occur at the border, reasonable. Flores-Montano, 124 S.Ct. at 1585. However, Flores-Montano contains no admonition against using a totality of the circumstances balancing test to assess reasonability when that question is squarely posed, as it is here, given a destructive property search at the border. Id. at 1587.
We cannot assess the “reasonability” of a search under the Fourth Amendment in any principled manner without some sort of balancing test, except in those particular circumstances, such as non-destructive property searches, where reasonability may be presumed. We cannot presume reasonability here, where the government seeks a rule that it may perform a search so destructive to a person’s property that the property becomes useless.
As the “significant factor” in determining whether a search is so destructive as to require reasonable suspicion under Flores-Montano, the majority creates a distinction between destruction of functional vehicle components and destruction of containers in the vehicle. Even if this were a fair interpretation of Flores-Montano, a spare tire is not a container but, in fact, is a functional vehicle component placed in the automobile for safety purposes; thus, the point is not well taken in the context of *1103this case. Regardless, the fact that a person’s property does not happen to be a vehicle part does not make a destructive search of that property more reasonable. The Fourth Amendment does not value vehicle parts more highly than containers of other articles of personal property. Nor does Flores-Montano suggest a distinction between functional vehicle components and other personal property. 124 S.Ct. at 1587 (“[I]t may be true that some searches of property are so destructive as to require [reasonable suspicion]”) (emphasis added). Unreasonable and irreparable destruction of a suitcase, a rare item, or an item of sentimental value is also violative of a person’s right to be secure in his or her person and property. U.S. Const. amend. IV. Yet any such destruction is permissible under the majority’s reasoning.
The majority also virtually discounts the fact that less intrusive alternatives exist to cutting open a spare tire, by stating that a least-intrusive means test would undermine the government’s inherent authority to conduct searches at the border without suspicion. But the fact that a ¿easi-intru-sive means test would be inappropriate does not indicate that the presence of inexpensive and less-destructive means of searching is completely irrelevant. I would include the presence of those means at a particular site, as well as their ease of use, in the analysis of whether it is reasonable to engage in a destructive search without suspicion.
The majority also appears to dismiss the harm engendered by destroying a spare tire, in part by citing to the fact that victims of property destruction can obtain civil damage remedies. While this remedy exists, it is irrelevant to the question whether a destructive search is of the sort that violates the Fourth Amendment. Neither Flores-Montano nor the majority opinion alter the - exclusionary rule as a remedy for Fourth Amendment violations. The Court in Flores-Montano stated that in the context of a vehicle tank dismantle search which generally poses no harm to the property, the cure for any damage that did occur would be economic:
Respondent cites not a single accident involving the vehicle or motorist in the many thousands of gas’ tank disassem-blies that have occurred at the border. A gas tank search involves a brief procedure that can be reversed without damaging the safety or operation of the vehicle. If damage to a vehicle were to occur, the motorist might be entitled to recovery.
124 S.Ct. at 1587. In other words, gas tank disassemblies do not, as a general matter, cause damage and are therefore per se reasonable at the border. Any damage caused would result from accident or negligence, not an unreasonable search in violation of the Fourth Amendment, and would therefore be properly cured by a tort.
This statement does not alter the rule that when there is a sufficiently causal relationship between property destruction and the fruits of a search, those fruits are suppressed. See United States v. Ramirez, 523 U.S. 65, at 72 n. 3, 118 S.Ct. 992, 140 L.Ed.2d 191 (1998) (“Because we conclude that there was no Fourth Amendment violation, we need not decide whether, for example, there was sufficient causal relationship between the breaking of the window and the discovery of the guns to warrant suppression of the evidence.”) (citing Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (creating the independent source doctrine as a limitation on the exclusionary rule) and Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (holding that direct and indirect evidence from unlawful searches is inadmissible)).
*1104Finally, the majority finds justification for eliminating all Fourth Amendment restrictions at the border in our nation’s recent tragedies. The times demand vigilance, of course. But our country has been through periods of great national distress before, in which we have also faced great threats at our borders. The challenge in such times is not to allow our fear to overcome our values. The best course is to confront these menaces with vigor, but without abandoning our equal adherence to the rights upon which our nation was founded. By taking a balanced, common sense approach to border searches, we both protect our nation from harm and preserve the rights that we hold dear.
In the present context, the only question is whether the Fourth Amendment places any limits on the government’s right at the border to destroy personal property that does not impair vehicular operation. I believe that it does and would apply the traditional totality of the circumstances analysis to assess whether such destructive government searches are reasonable within the meaning of the Fourth Amendment.
Therefore, I respectfully dissent.
. The Court noted that the defendant "does not, and cannot, truly contend that the procedure of removal, disassembly, and reassembly of the fuel tank in this case or any other has resulted in serious damage to, or destruction of, the property." 124 S.Ct. at 1586.
. By this statement, I do not imply any criticism of the men and women who serve their country under difficult conditions at our nation’s borders. Indeed, as I have emphasized, the officers in this case took pains to develop reasonable suspicion, as I believe they should. However, the government has chosen to take the litigating position that there are no Fourth Amendment limits to destructive searches at the border which, carried to its logical conclusion, means that there are no Fourth Amendment restrictions to border searches at all. It is that position with which I respectfully disagree.