United States of America, Plaintiff-appellee, v. Porfirio De La Mora, Defendant-appellant, 959 F.2d 242 (9th Cir. 1992)

Before HUG and PREGERSON, Circuit Judges, and PECKHAM,^*  District Judge.

MEMORANDUM^** 

Porfirio de la Mora timely appeals his conviction from one count of possession with intent to distribute approximately 250 grams of heroin, a violation of 21 U.S.C. § 841(a) (1), and a second count of importing heroin, a violation of 21 U.S.C. § 952(a). De la Mora contends that the district court committed reversible error by denying his motion to suppress evidence obtained from a search of his shoes conducted upon his entry into this country at Los Angeles International Airport ("LAX"). We review de novo the legality of a search and seizure and review the district court's underlying findings of fact for clear error. United States v. Linn, 880 F.2d 209, 214 (9th Cir. 1989).

De la Mora asks this court to adopt three arguments addressed and rejected by the district court. First, he argues that the inspection of defendant's shoes by United States Customs Inspectors went beyond a "routine" border inspection which need not be premised upon any degree of suspicion. Second, de la Mora contends that the Customs Inspectors lacked the "reasonable suspicion" required to justify a search which involves greater intrusion than does a "routine" border search. Finally, de la Mora argues that assuming that the search was premised on a sufficient degree of suspicion, the Customs Inspectors employed unreasonable search methods.¹ 

The search in question occurred at LAX, the functional equivalent of a border, upon defendant's attempt to enter this country. Border searches "have been considered to be 'reasonable' by the single fact that the person or item in question had entered into our country from outside." United States v. Ramsey, 431 U.S. 606, 619 (1977). Thus, " [r]outine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant." United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985) (citations omitted).

The threshold question for this court, then, centers on the character of the search of de la Mora's shoes: if routine, then the Customs Inspectors need not have possessed reasonable suspicion to ask him to remove his shoes for the purposes of a search and seizure. In this Circuit the test to determine whether a border search was routine turns on the degree of intrusion into a border entrant's legitimate expectations of privacy. United States v. Quintero-Castro, 705 F.2d 1099, 1100 (9th Cir. 1983). More concretely, routine searches are defined as those which do not pose a "serious invasion of privacy" and which do not embarrass or offend the average person. United States v. Chase, 503 F.2d 571, 573-74 (9th Cir. 1974), cert. denied, 420 U.S. 948 (1984).² 

In applying this standard to the personal effects of a border entrant, the Ninth Circuit has held that a routine search of persons and effects includes inspection of pockets, purses, wallets, luggage and overcoats. Quintero-Castro, 705 F.2d at 1100. In fact, shoes in the Ninth Circuit do not generate a privacy interest of any greater magnitude than do the articles listed above. United States v. Chase, 503 F.2d 571, 573-74 (9th Cir. 1974), cert. denied, 420 U.S. 948 (1984). In Chase, the Ninth Circuit addressed and rejected an argument almost identical to de la Mora's argument. Finding that removal of defendant's boots did not constitute a strip search which required "real suspicion," the court reasoned that " [w]e simply cannot say that the mere removal of a boot is the type of 'serious invasion of privacy' which the real suspicion standard, applicable to strip searches, was designed to limit." 503 F.2d at 573-74.³ 

In the instant case, de la Mora sought to cross our national borders and Customs Inspectors asked no more of him than "the mere removal of a boot." Further, the search was conducted in a private room separated from public scrutiny and did not involve any physical contact between the Customs Inspectors and de la Mora.⁴  Thus, we hold that the search in question was routine and, therefore, constitutional.⁵ 

Finally, de la Mora claims that the Customs Inspectors employed unreasonable means to search his shoes. More specifically, de la Mora contends that it was unreasonable to submit his shoes to an X-ray device and to penetrate them with a knife because less intrusive, alternate means were available to the Inspectors. This argument is unpersuasive in light of the Supreme Court's holding that the availability of less intrusive means "does not, in itself, render the search unreasonable." Montoya de Hernandez, 473 U.S. 531, 542 (1985).⁶  Furthermore, the Customs Inspector commenced his inspection by flexing the shoes and by weighing the shoes in his hands. These preliminary measures revealed unusual stiffness and heaviness which laid a foundation for the Inspector's subsequent and reasonable decision to employ the knife to discover the source of the stiffness and heaviness.

For these reasons, the district court did not err in deciding that the search of de la Mora's shoes was constitutional.

AFFIRMED.