American Judges Association


Date of this Version

July 2005


Published in Court Review: The Journal of the American Judges Association, 42:2 (2005), pp. 28-37. Copyright © 2005 National Center for State Courts. Used by permission. Online at


Recently, the Ninth Circuit Court of Appeals decided the government can destroy personal property during a search at the border without restraint or probable cause. The Ninth Circuit’s holding in United States v. Cortez-Rocha represents a dangerous precedent not only for border searches, but for the reasonableness standard embedded in the Fourth Amendment. However, this power should not eliminate all Fourth Amendment protections against unreasonable searches. Although the federal government may have the ability to conduct searches without probable cause at the border, that power does not allow federal agents to destroy personal property when agents can open a container with minimal damage and when no exigent circumstances exist.

On February 16, 2003, Julio Cortez-Rocha (Cortez) attempted to enter the United States from Mexico. During the routine border questioning, customs agents became suspicious of Cortez and sent him to a secondary inspection area. During the search, the agents slashed open his spare tire, found several bricks of marijuana, and arrested Cortez.

The Ninth Circuit determined that a destructive search of personal property at the border was reasonable under the Fourth Amendment even though the agents could have disassembled or opened the container without destroying it. The decision in Cortez-Rocha raises troubling questions about citizens’ rights, the status of the Fourth Amendment at the border, and the applicability of the exclusionary rule to border searches.

Constitutional protections are being restricted by the courts in the name of justice and national security. Although the government has a reasonable interest in regulating what crosses its borders, individuals do not lose constitutional protections at the border, and courts should affirm the substantial protections against unreasonable searches and seizures. The Ninth Circuit should have encouraged government agents to conduct their investigations within the boundaries set by United States v. Flores-Montano, rather than further weighting the balancing test in favor of the government. Suppressing the marijuana in the Cortez-Rocha case would not have prevented agents from inspecting containers crossing the border. Rather, the Ninth Circuit should have held that the destruction of a container, absent an additional justification, is particularly offensive and makes the search unreasonable. Instead of determining whether the trial judge correctly admitted the evidence, the Ninth Circuit held that the complete destruction of a person’s property was not offensive, thereby further reducing an individual’s protection against unreasonable searches and seizures.

There is no justification for protecting searches that completely destroy an object, regardless of the object’s value, when there are nondestructive methods for opening it. Agents have a lower threshold to meet to justify searches at the border and the scope of those searches is nearly unlimited. However, the border search does not eliminate the restraint agents must use when conducting the search. Allowing federal customs agents to destroy personal property when they can open the container with minimal damage and common tools eliminates all Fourth Amendment protections at the border.

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