Unpublished Disposition, 924 F.2d 1064 (9th Cir. 1989)

MEMORANDUM^* 

Somsak Tangjitnopakun, defendant/appellant ("Somsak"), appeals the district court's adverse ruling on his motion to suppress evidence. He claims that a search by customs officials violated the Fourth Amendment.

FACTS

On February 15, 1989, a 17" X 17" X 8" package, weighing 20 pounds, addressed to "Somsak Tangjitnopakun" in Glendale, California and mailed from Singapore, arrived at the United States Customs Service's Airmail Facility in San Francisco. ER at 3.

A customs mail technician opened the package and found three clocks with large faces made of what appeared to be mother of pearl. ER at 3. Suspecting the clocks might contain contraband, he drilled a hole in the back of one. However, he found nothing. ER at 3. Still suspicious, he showed the clocks to a customs service seizing officer. The seizing officer also became suspicious because (1) the Drug Enforcement Administration ("DEA") had recently been alerted that Singapore was a known source of heroin, (2) Somsak's name was similar to that of a suspected drug smuggler, (3) the package was addressed to Los Angeles and, from October 1988 until April 1989, fourteen of sixteen seizures of heroin came from parcels addressed to the Los Angeles area, (4) the clocks had a "cheap look" suggesting they were not valuable, and (5) the clocks felt unnaturally heavy. ER at 4, 5.

Deciding that the hole drilled by the technician was too close to the edge and not deep enough to probe for contraband, the seizing officer instructed the technician to drill another hole. ER at 4. The drilling revealed a white powdery substance, later determined to be heroin. ER at 4.

PROCEDURAL HISTORY

On March 10, 1989, a grand jury for the Central District of California returned a two-count indictment against Somsak charging him with possession with intent to distribute 1,136.1 grams of heroin, and attempted possession with intent to distribute 2,254.2 grams of heroin. ER at 1, 2. Somsak entered pleas of not guilty during arraignment on March 20, 1989.

On April 7, 1989, Somsak filed his motion to suppress evidence challenging the customs officials' search of the package and clocks. The court denied the motion following an evidentiary hearing on May 1, 1989. The court found:

[T]he drilling under the circumstances and based upon the suspicion that the agent had doesn't rise to the level where it really outrages me. And I think cases have permitted the opening or the destruction of packages in a way that seems more offensive to me than simply drilling a small hole in the back of the clock.

Thereafter, on June 12, 1989, Somsak pleaded guilty to count one of the indictment, reserving the right to appeal the denial of his motion. Somsak was sentenced to ten years imprisonment to be followed by five years supervised release. ER at 24. He is currently serving this sentence.

STANDARD OF REVIEW

Whether the government has conducted a legal border search is subject to de novo review. United States v. Whiting, 781 F.2d 692, 695 (9th Cir. 1986); United States v. Nates, 831 F.2d 860, 862 (9th Cir. 1987)

DISCUSSION

Somsak contends that the "least intrusive means" rule must be applied to border searches. Somsak argues that a requirement of reasonableness must be satisfied in every search and this focuses on the manner in which the search is conducted.

Border searches do not fail because there may be less intrusive means of searching. First, the Fourth Amendment does not contain a general "least intrusive means requirement." See, e.g., Colorado v. Bertine, 479 U.S. 367, 375 (1986) ("even if less intrusive means existed of protecting some particular types of property, it would be unreasonable to expect police officers in the everyday course of business to make fine and subtle distinctions in deciding which containers or items may be searched and which must be sealed as a unit.")

Contrary to Somsak's argument, the Supreme Court has never suggested that there is a flat least intrusive means requirement in certain Fourth Amendment cases and not in others. The Court has indicated that the availability of less intrusive means remains one factor to be considered among others. It is true that in Florida v. Royer, 460 U.S. 491, 500 (1982), the Supreme Court considered the least intrusive means requirement:

This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify and dispel the officer's suspicion ...

However, other cases have focused on different factors. For example, the Court has considered (1) the duration of a search and seizure, e.g., Segura v. United States, 468 U.S. 796, 812 (1984), (2) the probability that criminal activity was present, e.g., Michigan v. Summers, 452 U.S. 692, 702-703 (1981), (3) the seriousness of the crime, e.g., Graham v. Conner, 109 S. Ct. 1865, 1872 (1989), (4) the reliability of the procedure in determining whether a crime was involved, e.g., Winston v. Lee, 470 U.S. 753 (1985), and (5) the number of persons searched and seized, e.g., Steagald v. United States, 451 U.S. 204, 215 (1981). Thus, it appears that the factors the court considers cannot be determined mathematically or mechanically as Somsak suggests.

In determining whether the government complied with the reasonableness requirement of the Fourth Amendment, the Court uses a balancing test, weighing the severity of the intrusion against the government interest. See, e.g. Skinner v. Railway Labor Executives Ass'n, 109 S. Ct. 1402, 1414 (1989) ("the permissibility of a particular practice 'is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.' ") quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979); Camara v. Municipal Court, 387 U.S. 523, 536-37 (1967).

Furthermore, it appears several Supreme Court decisions specifically regarding border searches have declined to employ a least intrusive means requirement. In United States v. Martinez-Fuerte, the Court upheld routine searches and detentions of vehicles and passengers at checkpoints without warrants or individualized suspicion. United States v. Alfonso 759 F2d 728, 733-34 (9th Cir. 1985). The Court rejected the Ninth Circuit's holding that less intrusive means could promote the checkpoints' purpose of curbing illegal entry into the United States. United States v. Martinez-Fuerte, 428 U.S. 543, 556 n. 12, (1976), rev'g 514 F.2d 308, 318-19 (9th Cir. 1975). In rejecting the least intrusive means requirement, the Court stated that, "the logic of such elaborate less-restrictive-alternative argument could raise insuperable barriers to the exercise of virtually all search-and-seizure powers." Martinez-Fuerte, 428 U.S. at 557 n. 12.

In United States v. Montoya de Hernandez, the Court held that the detention of a traveler at the border is justified at inception if customs agents reasonably suspect the traveler is smuggling contraband. United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985). The Court summarily dismissed the least intrusive alternatives argument stating, " [a] court should not indulge in unrealistic second guessing. A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished." Montoya de Hernandez, 473 U.S. at 542.

In the alternative, Somsak argues that the government was required to establish reasonable suspicion to justify a search of the clocks.

To justify a search on the basis of reasonable suspicion, "an official must be aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the package contains illegal material." United States v. Most, 789 F.2d 1411, 1415 (9th Cir. 1986). See also United States v. Nates, 831 F.2d 860, 863 (9th Cir. 1987).

The government points to several facts indicating customs agents had reasonable suspicion: (1) the clocks were mailed from Singapore, a known heroin source, (2) Somsak's name was similar to that of a suspected smuggler, (3) the package was going to Los Angeles, where a majority of packages containing heroin had been mailed in the previous year, (4) the package felt abnormally heavy, and (5) the clocks looked cheap. ER at 3-4.

We agree that the postal authorities had ample basis to make the exploration they performed in this case.

AFFIRMED.