Wednesday, April 29, 2015

The Border Search, Heroin and the Sony Playstation

After Jorge L. Molina-Gomez was indicted for “possession with intent to distribute one kilogram or more of heroin, in violation of 21 U.S. Code § 841(a)(1) & (b)(1)(A)(i)”, he filed a motion to suppress the heroin.  U.S. v. Molina-Gomez, 781 F.3d 13 (U.S. Court of Appeals for the 1st Circuit 2015).
The Court of Appeals began its opinion by explaining how the prosecution arose:
On August 6, 2012, at approximately 11:00 p.m., Molina arrived at the Luis Muñoz Marín International Airport in San Juan, Puerto Rico, via Panama, after a five-day trip to Colombia. This was the third time in four months in which Molina had taken a short trip to Colombia, a known source of illegal narcotics. As a result, the [Customs and Border Protection (“CBP”)] computer system flagged Molina for questioning.

Upon deplaning, Molina was referred to secondary inspection, where he claimed one carry-on bag, one computer case holding an ACER laptop computer, and one small bag containing a Sony Playstation. The carry-on bag contained personal belongings, three cell phones, and a Western Union money gram in the amount of one million Colombian pesos (approximately $560) sent to Molina at the Hotel Galaxy the day after he arrived in Colombia by a Colombian man named Rodolfo Trochez Sardí.

In response to the CBP officers' questions, Molina explained he traveled to Cartagena, Colombia, for four days to visit a friend, `Camilo,’ whom he met through another friend named Cynthia. He stated that he purchased his ticket for $500 on the COPA Airlines website using a credit card, but that he did not have the credit card with him. Molina told the CBP officers that while in Colombia he stayed at the Hotel Galaxy and did not leave his hotel room, but rather just ate and played games on his Playstation.
U.S. v. Molina-Gomez, supra.
The Court of Appeals goes on to explain that his
answers raised the CBP officers' suspicions, and further questioning and investigation revealed problems with Molina's story. For example, Molina did not know either Camilo or Cynthia's last name. And, contrary to his assertion, Molina did not purchase his plane ticket online via credit card, but rather it was purchased in cash at a Cali, Colombia travel agency. Indeed, all three of Molina's Colombian trips were booked with cash through this travel agency.

Molina was then escorted to a small (approximately ten-foot-by-ten-foot), windowless room containing one desk where he was patted down and subjected to further secondary questioning. He was in this room for approximately two hours and was asked about his trip to Colombia, his intentions upon reentry, and drug trafficking generally. The record is unclear as to what specifically the CBP officers asked and what Molina's responses were. He did, however, tell the officers that he had to work the following morning at 8:00 a.m., and he denied any involvement in drug trafficking.

While this questioning was ongoing, other CBP officers were inspecting Molina's belongings. They X-rayed his laptop, Playstation, and three cell phones and saw no contraband. They also confirmed that the electronics were all operational, but noted that while the laptop turned on, it contained no data despite being an older model.

A review of the three cell phones showed text messages from Camilo, Sardí, and numerous unidentified others. These text messages involved money transactions totaling approximately $8,000 and referenced money Molina had already received and money he would receive once he arrived in New York. The phones also revealed a confirmed plane ticket from San Juan to New York for 9:35 the following morning, contradicting Molina's statement to CBP officers that he would be working in San Juan at 8:00 a.m.
U.S. v. Molina-Gomez, supra. The opinion then explains that
[g]iven all of these red flags, the officers suspected Molina was smuggling narcotics. Because the pat-down yielded no results and the X-ray of Molina's electronics came back negative, the officers were concerned that Molina was carrying drugs internally.

They explained the situation to Molina, and he voluntarily consented to a medical exam. At around 1:45 a.m., Molina was taken, in shackles, to San Gerardo Hospital. An X-ray exam was inconclusive, so a CT scan was performed and his bowel-movements were monitored. These tests confirmed that there were no foreign objects inside Molina's body. Later that day, at around 6:00 p.m., he was released from the hospital and transported back to the airport.

Upon returning to the airport, Molina was released by CBP and allowed to enter the United States. He was given all of his belongings except for the laptop and Playstation, which were detained for further examination by the CBP Forensics Laboratory because a dog-sniff `showed interest’ in the laptop. Molina was given a pamphlet explaining the electronic-device detention process and whom to contact to inquire about the property.
U.S. v. Molina-Gomez, supra.
The next day, August 8,
the laptop and Playstation were received by the CBP Forensic Lab. The detention ticket indicated that the detention was for `data extraction’ but this was in error, as the electronics were detained in order to be searched for hidden contraband. Indeed, no data extraction was ever conducted. Beginning on August 11, Molina started calling the CBP to inquire about the status of his electronics and when they would be returned. On August 24, a CBP forensic chemist disassembled the electronics and found black bags hidden inside sophisticated compartments of both the laptop and Playstation. The bags' contents tested positive for heroin -- 511 grams in the laptop and 1.05 kilograms in the Playstation.
U.S. v. Molina-Gomez, supra.
Then, on August 28,
CBP, in coordination with ICE, called Molina to inform him that his electronics could be picked up at the airport. When Molina arrived later that day, he was arrested by ICE agents. The agents read Molina his rights, which Molina subsequently waived. He confirmed that he owned both the laptop and the Playstation, that he took them to Colombia and intended to return with them, that he had planned to travel to New York the morning after he returned to Puerto Rico but never did so, and that his trip to Colombia and New York were paid for by Sardí.
U.S. v. Molina-Gomez, supra.
After the U.S. District Court Judge who had the case denied his motion to suppress evidence, Molina-Gomez “entered a conditional plea pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure, and he now timely appeals the denial.” U.S. v. Molina-Gomez, supra.  Molina-Gomez argued, on appeal, that the search of his laptop and Playstation,           
which uncovered the hidden heroin, was an unreasonable search in violation of the 4th Amendment to the United States Constitution. Pursuant to the 4th Amendment,

`The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’
U.S. v. Molina-Gomez, supra (quoting U.S. Const. amendment IV).  
The Court of Appeals went on to explain that it is
well established . . . that `the 4th Amendment's balance of reasonableness is qualitatively different at the international border than in the interior’ due to the `longstanding concern for the protection of the integrity of the border.’ U.S. v. Montoya de Hernández, 473 U.S. 531 (1985). This concern is, `if anything, heightened by the veritable national crisis in law enforcement caused by smuggling of illicit narcotics.’ U.S. v. Montoya de Hernández, supra. As a result, there is a recognized `border search exception’ to the warrant requirement. See U.S. v. Ramsey, 431 U.S. 606 (1977). . . . International airports such as the Luis Muñoz Marín International Airport are the `functional equivalent’ of an international border and are thus subject to this exception. U.S. v. Robles, 45 F.3d 1 (U.S. Court of Appeals for the 1st Circuit 1995).
U.S. v. Molina-Gomez, supra.
The court explained that under the border search exception,
`[r]outine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant.’ U.S. v. Montoya de Hernández, supra. . . . These searches `are reasonable simply by virtue of the fact they occur at the border.’ U.S. v. Flores–Montano, 541 U.S. 149 (2004) (quoting U.S. v. Ramsey, supra). Non-routine searches, by contrast, require reasonable suspicion. U.S. v. Montoya de Hernández, supra. . . .

Though there is no hard-and-fast rule, and the Supreme Court has cautioned against `[c]omplex balancing tests,’ U.S. v. Flores-Montano, supra, whether a search qualifies as `routine’ or `not routine’ often depends on the `degree of invasiveness or intrusiveness associated with’ the search. U.S. v. Braks, 842 F.2d 509 (U.S. Court of Appeals for the 1st Circuit 1988) (listing numerous factors to consider). For example, searches that are `highly intrusive searches of the person,’ U.S. v. Flores–Montano, supra, such as strip searches and body cavity searches, have been deemed to be non-routine. . . .

So have searches of property that are `destructive,’ U.S. v. Flores–Montano, supra, such as drilling a hole in a metal cylinder. U.S. v. Robles, supra. By contrast, pat-downs, searching luggage inside an aircraft's cargo hold, opening bottles of liquor and testing the contents, and removing, disassembling, and reassembling a fuel tank without causing damage have all been deemed routine searches.
U.S. v. Molina-Gomez, supra.
The Court of Appeals then began its analysis of the issues in this case, noting that
Molina argues that the search of his laptop and Playstation that led to the discovery of the two heroin bags constitutes a non-routine and unreasonable search. However, he is unable to point to any specific act that is either non-routine or unreasonable.

Instead, his argument seems to be that because the initial X-ray and search of his laptop and Playstation turned up negative, and because his eighteen-hour detention at the hospital (to which he consented) showed that he was not carrying drugs internally, it was therefore unreasonable to detain his laptop and Playstation for further testing. And, even if it was reasonable to further detain the electronics initially, he contends, the detention became unreasonable during the twenty-two days they were at the CBP lab.

The government, for its part, counters that the search qualifies as a routine border search and thus no suspicion at all -- let alone reasonable suspicion -- was necessary, but even if reasonable suspicion was necessary, that standard was satisfied.
U.S. v. Molina-Gomez, supra.
The Court of Appeals also noted that
[w]e need not categorize the search as either routine or non-routine because we agree with the government that even assuming the search was non-routine, reasonable suspicion existed to justify the search. Reasonable suspicion exists when agents `demonstrate some objective, articulable facts that justify the intrusion as to the particular person and place searched.’ U.S. v. Robles, supra (quoting U.S. v. Uricoechea-Casallas, 946 F.2d 162 (U.S. Court of Appeals for the 1st Circuit 1991); see also Montoya de Hernandez, supra (describing reasonable suspicion as a `common-sense conclusio[n] about human behavior upon which practical people, -- including government officials, are entitled to rely’) (quoting New Jersey v. T.L.O., 469 U.S. 325 (1985)).
U.S. v. Molina-Gomez, supra.
It then found that
[s]uch objective, articulable facts are present here. First, this was Molina's third trip in four months (each only for a matter of days) to Colombia, a country known for its connection to drug smuggling.

Second, Molina gave odd and suspicious answers to routine Customs questions. These answers ranged from highly dubious—(1) he could not remember the last name of either the friend he was visiting (Camilo) or the friend who introduced them (Cynthia); and (2) all he did while in Colombia was stay in the hotel and play with his Playstation—to assertions proven to be flat-out lies—(3) he claimed to have purchased his ticket online with a credit card but in actuality paid for it in cash at a travel agency; and (4) he claimed to be working in Puerto Rico the next morning but in fact had a confirmed flight to New York City.

Third, his laptop was old and operational, yet it contained no data. Finally, his phones contained text messages involving prior and future money transactions. Taken together, these facts easily give rise to a reasonable suspicion that Molina was attempting to smuggle narcotics. See U.S. v. Robles, supra (reasonable suspicion existed where a metal machine part of no commercial value was shipped `from Colombia—a known source country for narcotics’ to a residence in the United States at a cost higher than its worth, without insurance); U.S. v. Lamela, 942 F.2d 100 (U.S. Court for the 1st Circuit 1991) (finding reasonable suspicion where defendant, among other things, `was a passenger aboard an international flight originating in Colombia’ and `gave inconsistent responses to routine questions relating to the purpose of his travel’). . . .
U.S. v. Molina-Gomez, supra.
It went on to explain that the fact the
initial X-ray of the electronics and the X-ray, CT scan, and bowel monitoring of Molina came up negative in no way alters this conclusion or transforms a legitimate and proper search into an unreasonable one. `Authorities must be allowed “to graduate their response to the demands of any particular situation,”’ Montoya de Hernández, supra . . . (quoting U.S. v. Place, 462U.S. 696 (1983)), and that is precisely what the CBP officers did here. The officers had reasonable suspicion that Molina was smuggling drugs; they just did not know where the drugs were hidden. There is nothing unreasonable about the officers shifting their attention back to the electronics and giving them a more in-depth look once they were satisfied that the drugs were neither on nor in Molina's body. To the contrary, this approach is eminently reasonable when one considers that a dog-sniff conducted while Molina was at the hospital showed interest in his laptop.
U.S. v. Molina-Gomez, supra.
The Court of Appeals also pointed out that the search did not become
unreasonable during the twenty-two days the electronics were detained. The Supreme Court has `consistently rejected hard-and-fast time limits,’ instead placing an emphasis on `”common sense and ordinary human experience.”’ Montoya de Hernández, supra (quoting U.S.v. Sharpe, 470 U.S. 675 (1985)). . . . Though twenty-two days does seem lengthy, it is not unreasonable under these circumstances.
We will not second-guess the techniques used by the CBP lab and require that a faster alternative -- which could have damaged the electronics during the disassembly and reassembly process, could have put an unnecessary budgetary and workload strain on the lab, or could even have failed to detect the expertly hidden heroin -- be employed. See Montoya de Hernández, supra (`[C]ourts should not indulge in “unrealistic second-guessing,”’ . . .  ‘[T]he fact that the protection of the public might . . . have been accomplished by ‘less-intrusive’ means does not, in itself, render the search unreasonable’ (quoting U.S. v. Sharpe supra . . . .). Thus, the search of Molina's laptop and Playstation did not violate his 4th Amendment rights.
U.S. v. Molina-Gomez, supra.

For these and other reasons, it affirmed the District Court Judge’s denial of his motion to suppress the drugs found in his electronic devices. U.S. v. Molina-Gomez, supra.

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