- The Washington Times - Tuesday, March 30, 2004

U.S. border inspectors can disassemble and search a vehicle’s gas tank for drugs or other contraband that might be hidden without violating the owner’s constitutional privacy rights, the Supreme Court said yesterday.

The unanimous decision, based on the high court’s ruling that the government has a “paramount interest” in protecting its borders, was described as a victory for the Justice Department, which had argued in support of the searches as a way to capture drug smugglers and would-be terrorists.

The court said border inspectors could conduct random searches even if they did not have specific information a gas tank contained contraband, because the United States, as sovereign, had the “inherent authority to protect, and a paramount interest in protecting, its territorial integrity.”

“The government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border,” wrote Chief Justice William H. Rehnquist. “Time and again, we have stated that searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact they occur at the border.”

The ruling overturned a 9th U.S. Circuit Court of Appeals decision in San Francisco that the searches violated constitutional guarantees against unreasonable search and seizure. That ruling involved the 2002 indictment of Manuel Flores-Montano, arrested when 80 pounds of marijuana were found in his gas tank after entering California from Mexico.

Chief Justice Rehnquist noted that in the past five years, there have been 18,788 vehicle drug seizures at Southern California ports of entry, and that 4,619 of those seizures were made from gas tanks — about 25 percent. In addition, he said, instances of people smuggled in and around gas tank compartments were discovered at the ports of entry of San Ysidro and Otay Mesa in California “at a rate averaging 1 approximately every 10 days.”

“We have long recognized that automobiles seeking entry into this country may be searched,” he wrote in the seven-page opinion, adding that while the border inspectors were justified in disassembling the tanks because of the potential for drug trafficking or other crimes, they had to put them back together if nothing was found.

U.S. Customs and Border Protection (CBP) Commissioner Robert C. Bonner called the decision “a forceful and reasoned affirmation” of the agency’s border search authority, which he described as “a cornerstone of our nation’s ability to prevent terrorists and terrorist weapons from entering this country.”

“Now, more than ever before in our history, the need to secure our borders is basic to the safety of the United States,” Mr. Bonner said. “The Supreme Court’s strong opinion reaffirms the broad legal authority we need to accomplish our mission.”

After his indictment, Mr. Flores-Montano filed a motion in court to suppress the marijuana found in the gas tank, discovered at the Otay Mesa port of entry on the California border with Mexico.

A Customs Service inspector said Mr. Flores-Montano avoided eye contact and his hands shook when he was asked for his passport. The inspector also said the gas tank sounded solid when he tapped it with a screwdriver and a customs drug-sniffing dog signaled that the vehicle contained narcotics.

The inspector said a mechanic removed the tank, where the inspector discovered the marijuana.

Justice Department Solicitor General Theodore Olson told the appeals court its ruling had created “an appreciable risk of encouraging terrorists to use gas tanks as a means to avoid the detection of explosives or other hazardous substances crossing the country’s borders.”

Mr. Olson said the need to protect the border outweighed the “modest intrusion” of an individual’s privacy rights.

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