United States v. Flores-Montano - Oral Argument

Argument of Lisa Schiavo Blatt

Chief Justice Rehnquist: We'll hear argument now in 02-1794, the United States v. Manuel Flores-Montano.

Ms. Blatt.

Mr. Blatt: Thank you, Mr. Chief Justice, and may it please the Court:

Customs officials have the responsibility to protect the Nation's borders against the entry of dangerous or unwanted items.

Consistent with that fundamental and sovereign necessity, customs officials have historically had the power to open containers and conduct a thorough search of items without a warrant, probable cause, or any particularized suspicion.

Justice O'Connor: Well, now in this case, I suppose the Government did have reasonable suspicion.

Mr. Blatt: That's correct, but we did not rely on it and the evidence was suppressed on... based on the Ninth Circuit's rule that a gas tank cannot be removed and opened without reasonable suspicion.

Justice Breyer: Can you make us, i.e., I'm not saying this pejoratively, but can this Court be required to decide what might be a hypothetical question, it seems to me, the dog barked and therefore they had grounds for thinking their were drugs in the gas tank, and he kicked the gas tank and it was hollow, and no one disputes those facts.

But you want to decide... us to decide this case, as does the other side, as if those facts didn't exist.

It sounds to me like a hypothetical question, almost in the direction of an advisory opinion.

What would we have decided if those facts didn't exist?

But they do.

So how does that work?

Mr. Blatt: Well, I don't think it's an advisory opinion in that the evidence has been suppressed.

But, Justice Breyer, let me directly answer your question on why the case is here.

In 2002, the Ninth Circuit held that the Constitution is violated if customs officials remove and open a gas tank without reasonable suspicion, and in that case there was reasonable suspicion, making the case very difficult to challenge.

The Government legitimately wanted to challenge the case in a... in a... in a case where the officers actions could not be subject to a potential Bivens liability for violating the clearly established law of the Ninth Circuit.

At the same time, customs officials viewed the Ninth Circuit's decision as posing an immediate and present danger to their ability to protect the border, and they thought it imperative to try to challenge a... bring up a case that challenged that rule as soon as possible.

So two weeks after the Ninth Circuit's decision was decided, respondent drove across... drove across the border with a gas tank full of 80 pounds of marijuana, and the Government, we think legitimately, told the district court, and there was no secret at any time in this case, including at the petition stage, that we were not going to put on evidence that there was reasonable suspicion, even though the dog alerting and the solid-sounding tap of the gas tank, we could have established or presumably could have established that that was reasonable suspicion.

And both the district court and the Ninth Circuit summarily affirmed the... suppressed it and then affirmed the suppression, because there was not reasonable suspicion, and that's why this case is here.

The customs officials see this case as a threat to their ability to deter and detect smuggling at a container that is relatively large and that is commonly used... in fact, it is the most common container used along the Mexican border--

Justice Ginsburg: Can we go back to your--

Mr. Blatt: --to conceal contraband.

Justice Ginsburg: --You gave a Bivens justification for what is extraordinary.

I mean, it's not a violation of article 3 for us to decide it on your basis, but still, this Court deals with concrete cases with actual facts and not with abstract questions.

So is it... is it your notion... is it correct that what the Ninth Circuit says becomes clearly established law so that an officer would genuinely be... be subject to Bivens liability when this Court hasn't addressed the question?

Mr. Blatt: No, but we didn't want to have to tell the men and women who were in charge of enforcing the border that they should be subject to a potential suit, at least being named in their personal capacity in a lawsuit.

It seemed more appropriate from our perspective to try to bring a case as soon as possible where we think we could have proven reasonable suspicion, but it squarely fit within the Ninth Circuit's rule that reasonable suspicion was required.

Justice Kennedy: I suppose you could also say it's a question of resources.

The Government does not want to have to put on witnesses, get officers up from the border, have them sit in court, go through the motion to suppress, so that you have a very real interest simply in expediting trial procedures by taking the course you did.

I don't know if that helps you on this article 3 problem or--

Mr. Blatt: It... it helps to explain why we thought there was a paramount interest in getting the case as soon as possible.

We didn't want to divert resources away from the border into having to prove our reasonable suspicion.

In fact, there's already been serious fallout in terms of trying to prove reasonable suspicion when we search gas tanks, because the Ninth Circuit has said that all of our discovery on how we train our dogs has to be produced, and this is extremely sensitive information.

Justice Breyer: --This is a... I wasn't doubting the Government's motive here.

I think you have excellent motive, though maybe Bivens, maybe it was a little overconcerned about the Bivens, maybe it wasn't.

But what I'm interested in is the law.

That is, this isn't the first case where this has happened, not necessarily involving the Government, and I'm not sure how the law's supposed to work.

Parties come in and they say, we would like you to decide this issue.

I'm sure they would.

But in order to get to that issue, we have to assume out of the case certain facts that everyone agrees are there.

Mr. Blatt: Well, that--

Justice Breyer: Have you ever looked this up?

Are there any... have you come across this kind of a problem?

Mr. Blatt: --I think it's... it's clearly an... as Justice Ginsburg said, it's not an article 3 problem.

Let me say, Justice Breyer, there's no finding that there was reasonable suspicion, nor do we put on any evidence that would have permitted that.

Justice Breyer: No, all there is, is there happens to be, I think, in the record, undisputed facts that the dog barked and that they kicked the gas tank and it was hollow.

Justice O'Connor: Well, I... wait a minute--

Justice Breyer: --Anyway--

Justice O'Connor: --I think the kick of the gas tank or the tapping showed it was full, not hollow.

Justice Breyer: Full, whatever, whatever, whatever--

Justice O'Connor: --Am I right?

Mr. Blatt: Yes, it was--

Justice Breyer: Showed... showed whatever it wasn't supposed to show.

Justice O'Connor: Exactly.

And I think the dog doesn't bark, he just alerts.

Is that right?

Justice Breyer: All right.

Mr. Blatt: --That's right.

But let me just say as a--

Justice O'Connor: I know we have an agreement on that.

Mr. Blatt: --as a prudential matter--

Justice Scalia: Are we sure that there was reasonable suspicion?

Mr. Blatt: --No, there's no--

Justice Scalia: Or is it just possible that there was... that there reasonable suspicion?

Mr. Blatt: --There's no finding, Justice Scalia.

It is our position that we could have put on proof that this constituted reasonable suspicion by putting the dog's handler on and the agent explaining what a... what a solid-sounding tap means.

We didn't do that, so there's no finding, but let me just say--

Justice O'Connor: But the Ninth Circuit would require evidence of the training of the particular dog and so forth?

Mr. Blatt: --Well, at least that the defense is titled to discovery on that so that the... the handler.

But let me just say, Justice Breyer, as a prudential matter, I think that that is a legitimate concern at the petition stage when we petitioned, and there was no secret that we intentionally brought this case for the purpose of having it reviewed.

But the case has been briefed, there's no question about standing, and we think it's appropriate to reach the issue.

Twenty-five percent of all drug seizures along the Mexican border are hidden in gas tanks, that we've not only found marijuana, cocain, heroin, currency, methamphetamine, there have weapons and ammunition--

Justice O'Connor: Does it matter how... how much you have to take apart of a car to make a search?

Does that enter into the ultimate resolution in the Government's view or do we look at how easy it is to remove a gas tank and look at it?

Does that matter?

Mr. Blatt: --Well, it might matter, but it certainly doesn't matter where the... the compartment or container in question is designed to be removed and put back together by mechanics.

A gas tank removal is something that can be done within a reasonable time and that--

Justice O'Connor: How much time does it take?

Mr. Blatt: --Well, in this case, once the--

Justice O'Connor: To take it off and put it back?

Mr. Blatt: --Well, in this case it took under a half an hour, but, Justice O'Connor, I want to stress that in other cases, depending on the type of car, it might take an hour or two hours, and the last thing we want is our customs official to be on a Fourth Amendment stopwatch and telling the mechanic to rush.

So they need--

Justice Kennedy: On the 25 percent figure, you say 25 percent of all seizures from vehicles?

Does that include 25 percent of seizures where you search the person or?

Mr. Blatt: --No, it's 20--

Justice Kennedy: What's... the 25 percent is a percentage of what?

Mr. Blatt: --Twenty-five percent of narcotics seizures in terms of amount of seizures along land borders.

That doesn't include seaports--

Justice Kennedy: Oh, 25 percent in terms of quantity?

Mr. Blatt: --In terms of number of seizures.

It doesn't necessarily mean how much volume, but it's a lot, given that the gas tank is one of the largest containers.

Justice Kennedy: But included in that base is seizures from the person where somebody has it in their pocket and so forth?

Mr. Blatt: Yes, that's correct, but--

Argument of Steven F. Hubachek

Chief Justice Rehnquist: Well, the gas tank here had 80 pounds in it, didn't it?

Mr. Blatt: --Eighty pounds of marijuana with five gallons of gas, and that's an enormous amount, and this could have been another... another... other dangerous items, it doesn't have to be just marijuana.

And they have seen it all.

At the same time, someone does not store personal effects in their gas tank.

It's just a repository for fuel.

And this involved far less of an intrusion on privacy interest than the type of searches that can happen and do happen at the border, such as the traveler's baggage and the passenger compartments in the vehicle.

Mr. Hubachek: May I ask of you if the Government has procedures in place for the cases in which inadvertently they damage the car or... or maybe the thing might blow up on some occasion or something like that?

What... what's remedy does the citizen or the maybe an alien or the citizen have in that situation?

Rebuttal of Lisa Schiavo Blatt

Mr. Blatt: Any time there's damage to any types of property at the border, the person is handed a claims form, which is processed through customs, first under the Federal Tort Claims Act.

Now, there's an exemption for claims arising out of the tension of properties by customs under 28 U.S.C. 2680(c), but assuming that happens, customs can pay, and does pay, up to $1,000 under the Small Claims Act, under 31 U.S.C. 3723.

And Justice Stevens, there's another statute, a customs-specific statute, 19 U.S.C. 1630, that would permit customs to pay up to $50,000, but the restriction is for... it has to be for non-commercial properties, so that would be personal property that customs damage.

So there's--

Rebuttal of Steven F. Hubachek

Mr. Hubachek: I would think there are a lot of cases, repair bills are getting pretty expensive now, where $1,000 wouldn't cover it, the damage to a car.

Rebuttal of Lisa Schiavo Blatt

Mr. Blatt: --Well, that may be, Your Honor, but this doesn't involve claim of damage and--

Rebuttal of Steven F. Hubachek

Mr. Hubachek: No, I just... but it's... it's sort of in the background as we're asking whether it's reasonable in the... in the... in an ultimate sense, and I just... that's one of the things that I'm concerned about is--

Rebuttal of Lisa Schiavo Blatt

Mr. Blatt: --Well, sure, a gas tank is about $100, $200 item, and it's conceivable that any search can result in damage.

Now, respondent has never claimed--

Justice O'Connor: --You mean to repair it or to replace it?

Mr. Blatt: --Well, you're right.

You could have... you could have--

Justice O'Connor: When you say $100, to reconnect it, it's about $100?

Mr. Blatt: --That's right.

You would... no, the item itself probably costs under $200, but you would have labor costs.

Justice O'Connor: Well, that's not true.

I recently had to get one, and it's expensive, I can tell you.

Unknown Speaker: [Laughter]

Mr. Blatt: Well, depending on the car, the ones I've seen have been under $200, but you would have associated labor costs and maybe other parts.

But the basic point is that this is a container, it's a paradigmatic type of item that can be opened by the... at the border without any particularized suspicion.

And--

Justice Souter: Ms.... Ms. Blatt, may I just go back before you go on with your argument to follow up on Justice Stevens' question?

You spoke of the $50,000 limit as being for damage or, I guess, destruction of non-commercial property.

Does... does the non-commercial mean, as I would assume it would mean, that a truck or lorry that is driven as a... as a carrier would not be covered, damage to that would not be covered by the $50,000 coverage?

Mr. Blatt: --That's right.

And property is--

Justice Souter: So if the... if the... if the truck, I mean, if the commercial truck catches fire as a result because there's a spark in the gas tank and everything goes up in flames, in effect there's no redress?

Mr. Blatt: --Well, I don't know too many commercial importers that don't have insurance that would cover damage by customs, but the important thing is--

Justice Souter: No, but the customs isn't going to pay for it.

Mr. Blatt: --Customs is not going to pay for that.

Justice Scalia: But this would happen in a--

Mr. Blatt: But--

Justice Scalia: --reasonable search too, wouldn't it?

Mr. Blatt: --Excuse me?

Justice Scalia: I'm... this would happen in a search where there is probable cause as well, it could happen, couldn't it?

When there's... when there's reasonable suspicion, the same thing could happen, couldn't it?

And you also wouldn't have to pay for the truck?

Mr. Blatt: Well, that... that's absolutely true, but--

Justice Souter: Right, and you would also--

Justice Scalia: --And that would... and that would not render what was otherwise a reasonable search unreasonable, would it?

Mr. Blatt: --It would depend.

As long... assuming they're acting reasonably in carrying out the search, it's still reasonable and--

Justice Scalia: The mere fact that there's no compensation for actual damage, accidental damage to... to the truck would not render the reasonable search unreasonable if there were suspicion, right?

Mr. Blatt: --That's correct.

Justice Souter: And the reason--

Justice Scalia: --So why should it do it here?

Mr. Blatt: There have been thousands of disassemblies at the border--

Justice Souter: But isn't... isn't the point that in... in the... in the hypothetical that Justice Scalia puts, with the probable cause, we start with the assumption that the offices are in there acting reasonably.

The question in this case is posed by Justice Stevens' question.

Would the potential for damage... is it reasonable to go in there in the first place without probable cause?

So that is a different issue, isn't it?

Mr. Blatt: --Well, no, I think it's reasonable to search property at the border by virtue of the fact it's at the border, and given the Government's overriding interest and the person's reduced expectations.

But Justice Souter, there has been no known or reported instance of this hypothetical risk materializing at the border with respect to a customs search.

Justice Ginsburg: Ms. Blatt, you mentioned, you started to give a number, 1,000 searches, fuel tank searches, and then you gave a number earlier about how many gas tanks turned out to have contraband or something.

Do you know what percentage of those gas tanks were... was there disassembly and what percentage were done by a less intrusive means by the dog and the tapping on the fuel tank?

Mr. Blatt: Well, all gas tank seizures, which there have been thousands, have to be done by removal and disassembly of the tank.

There are, you could call them searches, because that's what they are, of gas tanks that don't involve removal and disassembly, if you use sophisticated equipment such as density busters and X-rays.

But all these seizures that are occurring at the border, in order to get to the drugs, you have to unscrew the bolts that are holding the tank to the undercarriage of the vehicle and remove the tank and open it up.

Justice Ginsburg: Is the practice then to just go straight to that procedure and skip the dog and the tapping, or do they go through the whole thing?

Mr. Blatt: Well, they have dogs at all the major ports of entry, but the dogs don't always alert, so I wouldn't say it's necessarily skipping, but the dog may not alert.

They also at some of the facilities have what are known as fiber optic scopes, which are extremely sophisticated and effective equipment.

Unfortunately, 75 percent or higher of all tanks have, in the filler tube, have an anti-siphoning valve that blocks the entry of the scope into the tank, but they will try that if they have it.

It's not always available.

It's an extremely expensive piece of equipment.

It costs $160,000 per unit.

But if they have that, presumably they try that first, and if it's blocked, then they put the car up on a lift and unscrew the metal bolts that are holding them that... to the metal straps that are holding the tank and they'll remove the tank.

And then from there on it's pretty straightforward on how to open up the tank.

Justice Ginsburg: But if we... if you prevail in this case and they don't have to do that, they can just say it's good enough to go right to the disassembly and we don't have to bother with dogs and maintaining dogs and anything else?

Mr. Blatt: Yeah, that's right.

Our position is where the procedure imposes only a modest intrusion on interests protected by the Fourth Amendment, the officers don't have to exhaust every least intrusive method.

Justice O'Connor: Obviously that would be the result if we were to support the Government's view here, and I think we're interested in knowing how often people's gas tanks would be disassembled if the Government's view prevails here.

How many times percentage-wise would people crossing a land border expect to have their gas tank removed if the Government prevails here?

Mr. Blatt: It's... it's--

Justice O'Connor: I mean, let's say 1,000 cars cross the border point in an hour.

What percentage of those will have their gas tanks removed?

Mr. Blatt: --Not very many, Justice O'Connor.

Let me give you these statistics.

There have been 120 million vehicles that passed through this country's borders last year, and over the last four years, four years, there have been 8,000 gas tank disassemblies.

Justice O'Connor: Yeah, but you didn't have this rule established that you didn't need reasonable suspicion.

What we're asking you to speculate on is if the Government prevails and we say, fine, you can take the gas tank off, you don't have to have any degree of reasonable suspicion.

Then how many will there be?

Mr. Blatt: Exactly the same.

It has always been the rule up until the Ninth Circuit that we could take apart a gas tank without reasonable suspicion.

Customs officials--

Chief Justice Rehnquist: Have any of the other circuits followed the Ninth Circuit's... other circuits have that... which have land borders?

Mr. Blatt: --No, no, they've always been able to take apart a gas tank on something less than reasonable suspicion.

But Justice O'Connor, it is true that as a practical matter customs does not take the time or energy to take... to call the mechanic, pay for the mechanic to take apart the gas tank unless their suspicions are focused on the gas tank, and it will usually be because of the dog alerts, or the more common situation is it... that they're just not sure whether that gas tank has been altered.

Maybe a bolt looks different from another bolt or it looks like it's been unscrewed, and it may be the person had their gas tank worked on, but they're just not sure, they have some concern about the person's travel plan story and so they... they want to go ahead and make sure the gas tank's not containing contraband.

Justice Kennedy: Suppose... suppose you prevail.

Are there any regulations or... or procedures under which you'll keep statistics and data, so that say over... suppose you prevail, then over the next five years we can... we can look back and see that there have been 10,000 searches and contraband has been discovered only 5 percent of the time or something?

Mr. Blatt: Yes, they keep statistics on seizures on narcotics and what are known as positive and negative seizures.

And in the last four years of the 8,000 gas tank seizures that have happened, 85 to 90 percent of those have been what are known as positive hits or there's been a presence of contraband, and so 10 to 15 percent of those have been so-called negative searches where the tank is reassembled and the motorist sent on their way, and I... we would expect that those statistics to continue, that they have limited resources and they conduct a search when they think it's appropriate and necessary.

Justice Breyer: But you don't know of the 8,000 what percent were without any suspicion?

Mr. Blatt: No, but there's never been any kind of requirement.

I... I think we can--

Justice Breyer: All right.

So--

Mr. Blatt: --confidently say their suspicions were focused on the gas tank, whether or not that that would have convinced a court that it was reasonable under--

Justice Breyer: --Yeah, I see.

Mr. Blatt: --this Court's definition I think is unclear.

Justice Breyer: Are there any rules or administrative procedures in the customs that would say... that would apply in respect to suspicionless searches of gas tanks?

For example, random searches, do it once a month or here's... we have a random program or we check up to see how it's going or... are there... are... is it just each customs agent for himself when... if you win, is it each customs agent for himself with no check whatsoever?

Mr. Blatt: No, well--

Justice Breyer: Or are there internal administrative checks that would be a kind of substitute for a judicial check?

Mr. Blatt: --There are extensive training of customs officials--

Justice Breyer: But what does it say--

Mr. Blatt: --about how to go about searching a car, where to look, where... where smugglers typically hide their drugs, and what type of evidence they may leave behind, and that's what the agent is looking for.

The agents are also trained though, Justice Breyer, to rely on their experience and intuition and hunches, and over time border officials gather extensive experience about what they're looking for.

Justice Ginsburg: --When--

Mr. Blatt: They also can consult with a supervisor if they have a question about whether a search should actually be done.

Justice Breyer: --So, for example, you have a customs agent whose experience leads him to believe that parents with small children are more likely to be smuggling heroin.

Now, this would be an odd customs agent.

Is there anything in the system that would discover that this is the person who's doing all the suspicionless checks and something's gone wrong here, so there's... do you see what I'm looking for?

Mr. Blatt: Well, his--

Justice Breyer: I'm looking for some way of--

Mr. Blatt: --supervisor would be aware of the search, but with a 85 to 90 percent success rate, that possibility seems rather remote.

Justice Breyer: --But then you have the suspicion searches in that 85 percent.

I'm trying to figure out if we have each customs agent for himself to conduct whatever suspicionless searches he wants, and you have a few of the, perhaps in every organization there are a few unusual ones who cause some problems, are there any internal checks within the system, because you're going to not have a judicial check?

I wonder if there are any administrative ways.

Mr. Blatt: There may be checks where people can file complaints, I don't know.

But the same officer could be instructing that the spare tire compartment be taken apart or that a tire be taken out or that every scrap of luggage can be taken off or that the person could empty their wallets, their shoes, their purses, their clothing, and put the person to a considerable inconvenience.

But a gas tank is not a container, Your Honor, that there's some sort of heightened expectation of privacy.

It stores fuel.

Justice Scalia: So assume that if there's any de facto check, there's more likely a check on the gas tank than there is on emptying your wallet and taking your shoes off and everything else, namely the expense that it causes to the customs service in time... in terms of the time of its agents, and I suppose you have to pay these mechanics that come and do it.

Mr. Blatt: Yeah, it's about... cost runs about a cost of $90 to $140 per visit, but Justice Scalia, there are also, very consistent with your point, hundreds of cars in a lane that this inspector has to get through, and they always are concerned about moving through the legitimate traffic and legitimate trade.

They want to get people in, they want to get people past the border.

At the same time, they're extremely concerned about what's in... what people might be concealing in their vehicles, and a vehicle is an extremely large container and a gas tank is a relatively large container, and given that it is 25 percent of all drug seizures have been hidden in the gas tank, they have an essential interest in being able to not only detect it when they think it might be there, but also deter it.

It has been customs' experience over many, many years that smugglers are looking to exploit any weakness along our border security efforts, and they will readily place their drugs where they're least likely to be detected.

Justice Ginsburg: Does that mean, for example, that you could rip out all the upholstery because you can hide drugs inside the upholstery?

Mr. Blatt: Well, ripping out the upholstery would first present a question of what kind of intrusion there is on... under the Fourth Amendment or an interest protected on the Fourth Amendment, and there may be a significant deprivation of a property interest.

Now, we would probably contend that we could rip what upholstery was reasonably necessary to conduct the search.

Justice Ginsburg: I thought... I thought you would, and maybe I'm recalling your brief incorrectly, but I thought you... you made a distinction between the kind of intrusive bodily search like a strip search and said that's the only one where you would need reasonable suspicion.

All others, all that involve only property and not the person, the rule should be at the border, anything goes, no reasonable suspicion required.

Is that the position the Government is taking?

Mr. Blatt: There's a small nuanced caveat to that.

We think we can search property without suspicion and use whatever force is reasonably necessary.

At the same time, Justice Ginsburg, the Constitution still applies with respect to the property and the search has to be carried out in a reasonable manner, and if someone took a giant axe and starting whacking away at leather upholstery, that would very well constitute an unreasonable search.

But this case doesn't involve a claim of damage and respondent has never said that he was deprived of a significant possessory interest in his gas tank.

Rather, what happened, it was taken apart and it could have been easily put back together.

Justice Ginsburg: But your... your answer to my question about property is, as long as you're not wantonly destructive, you can... any... anything that's in the car as distinguished from a person?

Mr. Blatt: That's our... that would be our position, but I'm saying it also involves a very distinct factor, and that is that there's a deprivation of a significant property interest if the item is going to be obliterated or its value going to be destroyed, and that's not the contention made in this case or the type of deprivation of a privacy... of property interests you would have with a gas tank.

But sure, if you took a vase and smashed it when you could have looked in it, or let me just say if you wanted to open up the trunk--

Rebuttal of Steven F. Hubachek

Mr. Hubachek: Well, but not just on the... the... if you smash it unnecessarily, but suppose the only way to get behind the fabric in say a seat cushion or something like that is to cut it open.

It... does your policy apply to that situation too?

Rebuttal of Lisa Schiavo Blatt

Mr. Blatt: --Well--

Rebuttal of Steven F. Hubachek

Mr. Hubachek: Because I don't suppose you have a seamstress who sews up the seat right away.

Rebuttal of Lisa Schiavo Blatt

Mr. Blatt: --Right.

Well, we would look at first what the type of deprivation is, and if it's a teeny little tear that can be easily repaired, maybe there's not a significant deprivation.

Rebuttal of Steven F. Hubachek

Mr. Hubachek: But suppose it's something that cannot be repaired.

Rebuttal of Lisa Schiavo Blatt

Mr. Blatt: Let's--

Rebuttal of Steven F. Hubachek

Mr. Hubachek: You have to cut up a seat... a seat cushion.

What... what do you do?

Rebuttal of Lisa Schiavo Blatt

Mr. Blatt: --Let's suppose that there's a significant deprivation.

It would at least be reasonable for the court to look at what kinds of alternatives were available to the Government.

As a practical matter, Justice Stevens, we... customs officials have long, skinny metal probes which are like needles that they use to search upholstery, so if it's fabric you wouldn't even see it going in and out.

If it's leather, you probably are going to get a tiny hole.

Now, whether that would constitute a significant deprivation--

Rebuttal of Steven F. Hubachek

Mr. Hubachek: I see.

Rebuttal of Lisa Schiavo Blatt

Mr. Blatt: --might turn on the facts and circumstances, but these are wonderful pieces of equipment that customs officials use all the time to look inside places that are hard to see, and they use them exactly on seats.

But to be sure, Justice Stevens, customs gets complaints about upholstery.

They let a dog into a car and the dog scratches the upholstery or the agent's going in there and searching and he steps on something.

These kinds of things happen at the border and customs have to... have a job to do and they've got to use whatever force is reasonably necessary.

But I think these cases are separate because they involve some arguably significant deprivation of the owner's possessory interest in that piece of property.

If it's a leather seat and it's torn, the value's gone down.

But the Ninth Circuit applies a rule that doesn't let customs officials open up a container even where they can put it back without damaging the tank, and so we think that case is quite distinct.

Mr. Chief Justice, I'd like to reserve the balance of my time.

Rebuttal of Steven F. Hubachek

Chief Justice Rehnquist: Very well, Ms. Blatt.

Mr. Hubachek.

Am I pronouncing your name correctly?

Mr. Hubachek: Yes, Mr. Chief Justice.

Mr. Chief Justice, and may it please the Court:

The Court's decision in Montoya established that for a search other than the routine border search, reasonable suspicion was required.

Chief Justice Rehnquist: Well, Mr.... Mr. Hubachek, Montoya discussed that in the context of a search of the person.

It... it said we reserve judgment on whether a strip search of his body... it was talking about people, not gas tanks.

Mr. Hubachek: Absolutely, Mr. Chief Justice, but four courts of appeals have unanimously applied the analysis in Montoya to searches of property or effects under the Fourth Amendment.

The Ninth Circuit's decision in Molina-Tarazon is consistent with those cases in that it applied the Montoya paradigm to the search of the gas tank and the seizure of the gas tank.

Justice O'Connor: Well, would you say that a ship coming in at a port in our country from elsewhere cannot be searched thoroughly without reasonable suspicion?

Mr. Hubachek: A ship could be searched thoroughly without reasonable suspicion.

I... but--

Justice O'Connor: But a land vehicle coming from, for example, Mexico at the land border crossing cannot be?

Mr. Hubachek: --Well, I... the distinction that I would draw would be the point--

Justice O'Connor: What is the difference?

Mr. Hubachek: --of disassembly.

I don't think that you can disassemble conveyances that come to the border.

Justice O'Connor: You think that if the ship came in that the gas tank could be removed and examined for presence of illegal goods?

Mr. Hubachek: I... I don't think that it would be reasonable to disassemble a ship either, particularly in light of all of the various methods that are available.

I don't think it's supported historically either.

You know, the initial statutes that the Solicitor General cited in the brief don't support any sort of disassembly of conveyances, the... particularly the 1790 statute.

What it talks about is allowing customs officials on board to look around, to mark items, to take records and so on and so forth, and then when items are being passed through customs, then the customs officer--

Justice O'Connor: But in today's world, the figures, the statistics are staggering about how many narcotics are brought into our country by way of the use of gas tanks.

I mean, that's an incredibly large figure.

Mr. Hubachek: --And I certainly would--

Justice O'Connor: And... and what are we supposed to do about that?

Mr. Hubachek: --Well, Justice O'Connor, I think that what we're supposed to do about it is to use the methods that are tried and true by the customs service itself.

If the customs service itself wants to move away from dismantling-type searches into searches that involve the use of the... their technology--

Justice O'Connor: Well, they have to dismantle to get into a gas tank where it... the opening will not permit the entry of a... the little looking device.

Mr. Hubachek: --Well, sometimes... maybe in the brief I was too excited by all this technology that's available, but I think that sometimes it's important to start back at the initial things.

Molina-Tarazon, for instance, the case that developed this rule, found reasonable suspicion based upon mud spatterings on the bottom of the tank.

Carreon, the Tenth Circuit decision, found reasonable suspicion in large part based upon the fact that certain bolts were shiny.

So--

Chief Justice Rehnquist: Mr. Hubachek, now you say, you give the impression that all courts of appeals have agreed with the Ninth Circuit.

Ms. Blatt gave the impression, at least to me, that the Ninth Circuit was alone on this.

What is the state of decisions, say in the Fifth Circuit, which has so much land border like the Ninth Circuit?

Mr. Hubachek: --Mr. Chief Justice, no court but the Ninth Circuit has addressed this specific issue here, the dismantling of gas tanks.

The Fifth Circuit, though, has held--

Justice O'Connor: Is it not done along the Texas border?

Mr. Hubachek: --I'm sure it is done, but there just hasn't been a case that has arisen.

Justice O'Connor: But there hasn't been a reported case where it was challenged?

Mr. Hubachek: That's correct.

But however, the Fifth Circuit has decided that intrusive searches of property are subject to the Montoya analysis and that reasonable suspicion is required in a drilling case called Rivas.

And in that case, you know, they used a drill to drill into the vehicle.

Justice Souter: Is... is it the... you... you described the search as intrusive, but as I understand it, your objection is not to the intrusion, your objection is to the disassembly.

Mr. Hubachek: Yeah, yes, that's correct.

Justice Souter: So... so the... the... I... I assume your objection rests on either or both of these grounds, either the value of the property, which is either lessened or placed at risk, or the inconvenience to the driver and passenger while the... while the intrusion or the disassembly goes on.

Which is it?

Mr. Hubachek: I would say it's both of those and I think that the... of course, the Court's Soldal decision establishes that a meaningful interference, even if there's no privacy interest at all, still implicates the Fourth Amendment.

But certainly there are issues with respect to value.

If my gas tank has been dis--

Justice Souter: All right, you know, what is the issue on value?

They'll put it back together again, there's apparently no record that... that these blow up all the time.

Mr. Hubachek: --Well--

Justice Souter: So... so what is the... the property concern?

Mr. Hubachek: --Well, I think that there a number of concerns.

Number one, do... if I resell the car, do I have to disclose that the gas... the fuel system was disassembled?

I mean, what if I have a warranty?

Does that exclude things from a repair by the warranty because it's been worked on by someone who's not authorized by Ford or whatever company owns the car?

Are there issues with emissions?

You know, this is a 1987 vehicle that we're talking about and the systems are much more complicated now.

I just read yesterday a regulation indicating if you have a.04 gap, you have to have a sensor that can determine if you have that much leakage,.04 inches, that you have to have a sensor that determines that kind of leakage.

Would it violate the terms of your lease to have some unauthorized person or some person you don't know about to go ahead and disassemble--

Justice Scalia: Your... your clients weren't worried about all that apparently.

I mean, I don't think 60 pounds of cocaine was good for the gas tank either, was it?

Unknown Speaker: [Laughter]

Mr. Hubachek: --No, I'm sure that it's not, and certainly you'd have to--

Justice Breyer: Is that... is that the only kind of... I mean, I take it you concede there's no privacy interest here?

Mr. Hubachek: --Well, I--

Justice Breyer: And... is that right?

Mr. Hubachek: --It... it certainly is... is not a tremendous privacy interest.

Justice Souter: Well, is there any?

Justice Breyer: Well, all right.

So there's no privacy interest and all there is is an interest that you don't want the Government hurting your property, which is conceivable in an interest.

But on the other hand, they say no privacy interest, conceivable the Government will hurt your property.

Every day of the week we deal with government people might hurt our property.

And on the other side, 25 percent of all the drugs that come into the United States outside... by land, come in in gas tanks, so this is an overwhelming interest for letting you do it.

After all, they search your suitcases, they search my pockets, they search every piece of luggage, they... they search anything you're bringing in, and it's not an unusual thing at a border.

So... so, how... how do you respond to this strong interest on their side and no privacy interest and very little property damage risk on the other side?

Mr. Hubachek: Well, I don't agree that there's very little property damage risk based on the... the other things that I've just mentioned.

Plus there's also the issue of the security of the individual, which was focused on in Molina-Tarazon, you know, what confidence do you have that this crucial system in your vehicle is going to be reliable when it's been taken apart--

Justice O'Connor: Well, presumably the person filling the gas tank with drugs had to disassemble the tank to put the drugs in there, so apparently willing to take that risk--

Mr. Hubachek: --But--

Justice O'Connor: --but not willing to let the customs service do the same thing?

Mr. Hubachek: --Right.

Well, people who smuggle drugs in gas tanks are willing to take a lot of risks, but the average traveler who comes to the border and is faced with the possibility of random disassembly of their gas tank is not going to be willing to take those risks.

Chief Justice Rehnquist: Well, how... how often does that happen that an innocent person has his gas tank person random... randomly disassembled?

Mr. Hubachek: Well, there's... one of the weaknesses of this record is... is that although the customs service claims that it's important for them to be able to do random disassemblies, they haven't established any sort of program under which they do random disassemblies, but there were several hundred gas tank disassemblies in which there were no drugs found.

Justice Kennedy: Well, we were told that 15 percent or 20 percent of the time nothing is found, 80 or 85 percent something is.

That... that's my understanding of the Government's submission.

Mr. Hubachek: Right.

And I think that that supports the notion that when they act upon suspicion and their experiences, we've heard detail this morning that they can be effective.

That doesn't mean though that it's essential to have the ability randomly to disassemble based upon those suspicions.

Justice Scalia: They're not talking about randomly.

They're... they're talking about... I... I think... I think Ms. Blatt said hunches.

I mean, there, you know, there... there are just some intuitions that agents get that may not rise to the level of what a court may acknowledge is an articulable suspicion, and they shouldn't... they shouldn't have to worry about whether they have to prove that or not.

I... do you really think they're going to do it when... when there's no reason whatever to do it?

Mr. Hubachek: Well, that... that's the problem with absolute discretion.

Any... any officer across the United States can make the rules for that particular day.

But I think that it's important to bear in mind that these hunches have, you know, there are many--

Justice O'Connor: But we're talking about border searches with customs officials who are trained and they have limited budgets.

Why do they want to pay the cost of having a mechanic disassemble an engine unless they have a good reason for doing it?

I mean, it's inconceivable to me that they try to run up the number just to run up the number.

It's too expensive.

They don't have that kind of money.

Mr. Hubachek: --Well, I think that any seizures that the Court has required there actually be founded suspicion are troublesome for the officers.

I mean, if they pull people over randomly, that's time that's taken away from other activities that they could be undertaking, so there's always a natural disinclination to do that.

But that doesn't change the fact that this Court has repeatedly in--

Justice Scalia: But... but not as easily observed and not as easily recorded by supervisors.

I mean, it seems to me if you have an agent who repeatedly has a... cars backing up at the... at the gate that... that he's controlling, and who repeatedly comes up empty on... on gas tank searches, that fellow's not going to be there very long.

I mean, it, it's easy to observe somebody who's abusing the system, it seems to me.

Mr. Hubachek: --Well, again, I think that it's important though that officers not be able to act arbitrarily across the United States.

It's not... it's not necessarily going to be limited to one officer so that we'll always be able to weed them out.

Chief Justice Rehnquist: In... in your answer to Justice Souter's question a few minutes ago, you said that not only was the property interest important, but the inconvenience was a... was a factor, and I don't know that we've ever said much about that that would... would support it.

Certainly there's going to be some inconvenience any time you cross a border, and this thing, if it takes half an hour, is that really a Fourth Amendment factor?

Mr. Hubachek: Well, I... I think it's a factor, but I don't think it's as important as the other factors we've talked about, the potential diminution in value, the lack of security upon the... the individual who's driving away in a vehicle that's been altered by unknown individuals, and the fact that, you know, that--

Justice Ginsburg: When you... when you... once you... you... the... the trunk is fair game, any luggage is fair game, fancy Gucci shoes might be fair game, it seems to me that the fuel tank, if we're looking at it from the point of view of the... the... how much damage there might be or the cost, is... is a lesser thing than personal items, and also that the privacy interest is much stronger in what we already say can be done without suspicion.

Mr. Hubachek: --I... I agree that the suspicion... that the privacy interest in the gas tank is not as high as the other items that you've mentioned.

However, it still is true that when you put your Gucci shoes on, you're planning to take them off, so if an officer takes them off to look at them, that's not a problem.

If they open up your luggage, your luggage is expected to be opened, and in fact, 1461 requires that you furnish an opportunity to open up that luggage.

But no one expects that their gas tank when they buy a new car to a tremendous expense that they put their family in, no one expects that that part of their vehicle is going to be open like they know that their luggage is.

Justice Scalia: One other question is whether it is unreasonable to... to require them to expect it if they're running their car back and forth across the border?

I mean--

Mr. Hubachek: Well, I... don't think that it's--

Justice Scalia: --What... why is it wrong?

What... what test do you... do you urge as to... as to when... when a search by border agents cannot be done?

What... what is the criteria?

Mr. Hubachek: --I think when it involves disassembly of property and--

Justice Scalia: Anything that involves disassembly.

So... so what about taking the cap off of a... off of a bottle that's there.

Is that... is that disassembly?

Mr. Hubachek: --Well, I think the cap off the bottle is similar to the luggage.

You would just open up the cap and that... that's what's expected to happen, but no one--

Justice Scalia: What if the bottle's sealed?

I mean, you know, it's... it's... it's a sealed bottle?

Mr. Hubachek: --I... I guess--

Justice Scalia: You have to break the seal.

Mr. Hubachek: --That could result, I mean, that may be necessary--

Justice Scalia: That can't be done?

Mr. Hubachek: --That may... it may be situations where that shouldn't be done without--

Justice Breyer: Suppose it's the same as a... suppose there's a terrorism problem and--

Justice Scalia: --Wow.

Justice Breyer: --they say that we want to search every fifteenth truck that comes in, there might be anthrax or bombs or whatever and we want to give the agents the power to look thoroughly into these big trucks even without suspicion.

Now were you saying the Fourth Amendment would stop that?

Mr. Hubachek: --If we're talking about a specific threat, where there is, you know, a specific--

Justice Breyer: No, no, non-specific threat, it's the present situation.

The Government simply says, we're worried about our borders, they're not secure, and we want to look at the trucks, that we want the... the customs agents to be able to look at trucks that are coming in.

They may have dangerous items on... in... on board, and we want them to look whenever they want.

It's at the border, just like your purse, just like your valise, just like your bag.

Now, what... what's your view of... is your case the same, different, or what do you think of that case?

Mr. Hubachek: --I... I think... I don't think that... that suspicionless searches under those circumstances would be reasonable because there's not been any showing that random searches or disassemblies of gas tanks would be at all effective.

In Delaware v. Prouse, this Court disapproved the process of pulling over people randomly to check registrations, both because it was not demonstrated to be effective, but also because it was not demonstrated to have any sort of deterrent effect.

Justice Breyer: All right, so in your view, suspicionless searches of trucks, whether for bombs, anthrax, weapons, or drugs all stand or fall together?

Mr. Hubachek: Well, I think that... I think that there... at least with the every 15 cars, there would be more of a deterrent because then they would know that every fifteenth car is being searched, but there is no program in place now, there was nothing offered below, in fact, there was no evidence offered below--

Justice Breyer: That's a different question.

My question was, do they stand or fall together?

Mr. Hubachek: --Right.

I... I think that the... that our case is stronger than your hypothetical.

Chief Justice Rehnquist: Delaware against Prouse had nothing to do with the border.

I mean, that was on a highway... inland highway in Delaware.

The Fourth Amendment has always been much relaxed at the border.

Mr. Hubachek: No, I... I agree with that, Mr. Chief Justice, but my point from Delaware v. Prouse is that in... in examining a random program, the Court looked to two things.

It looked to whether or not it was demonstrated to be effective.

It's not demonstrated to be effective here.

And it also looked to whether or not there was going to be a deterrent effect from it, and there was no--

Chief Justice Rehnquist: But... but you just can't transplant a case involving a car on a highway inland to the border.

Mr. Hubachek: --No, I understand.

My point is... is that the empirical evidence was important in the Delaware v. Prouse case, and that's how this Court distinguished it in Sitz, which is a case that the Solicitor General cited in support of the notion that the Court shouldn't look to other alternatives.

Justice Scalia: What... what do you do about United States v. Ross when... when you're urging your... your... your disassembly point?

Mr. Hubachek: Well--

Justice Scalia: Now that... that was a case involving a border search statute, not... not the one at issue here, to be sure, but nonetheless what we said, to quote it, is certainly Congress intended custom officers to open shipping containers when necessary and not merely to examine the exterior of cartons or boxes in which smuggled goods might be concealed.

During virtually the entire history of our country, whether contraband was transported in a horse-drawn carriage, a 1921 roadster, or a modern automobile, it was been assumed that a lawful search of a vehicle would include search of any container that might include the object of the... of the search.

Mr. Hubachek: --Well, I... I think that--

Justice Scalia: Now, why isn't that applicable here?

Mr. Hubachek: --I think that it... actually, it's consistent with our position, because the statutes that Ross was talking about were the statutes from 1789 and 1790 that I was referring to earlier, and what they allowed was the customs officers to go on board the ships to mark things and to make their records and so on and so forth, and then the packages would then be opened by the customs officer, and the first Congress thought this was a very significant act, because not only did they require the customs officer to open up the packages, but they had to have two reputable witnesses, merchants outside the customs service, to observe those.

So that was a very significant event.

But nothing in those statutes allowed disassembly of vessels.

It, in fact, it did authorize--

Justice Scalia: Well, now, your... your... your position is... is... is any container, you're not just talking about gas tank, you say nothing can be disassembled.

So if I have some gizmo that is assembled and is not meant to be opened again, you say if I bring that across the border the customs agent can't look into it.

Mr. Hubachek: --Well, they can look into it with all of the... the various abilities that they have.

If they have--

Justice Scalia: They can't open it.

Mr. Hubachek: --If they have reasonable--

Justice Scalia: They can't... they can't open it.

Mr. Hubachek: --If they have reasonable suspicion, they can.

Justice Scalia: No, but without reasonable suspicion.

I'm--

Mr. Hubachek: No, I don't think they can open up the gizmo without reasonable suspicion, but they still have all of the abilities they have to bring to bear on that, all the... the experience, all of their technology, all of their ability to examine things.

Justice Souter: --I think I... I... I lost what you were saying when you started referring to the gizmo.

If... if I bring in... if I buy a valuable statue in Europe and I have it elaborately crated so it won't be hurt in transport, when it gets to New York, can they open the crate to see what's inside?

Mr. Hubachek: Yes, they can, and that would be consistent with the 1790 statute, which said that you could open up the packages.

Justice Souter: All right.

So the difference between the crate and the gas tank is, I take it, your concern that after they've put the gas tank back together, there may be some risk that it won't function or that the emissions system will be affected?

I mean, is that where you draw the line between the crate and the tank?

Mr. Hubachek: Well, I think that the... the line that I'm drawing is... is the line that was drawn by the first Congress when they said that you can open up packages and they didn't provide any additional authority on board the vessels--

Justice Souter: Well--

Mr. Hubachek: --to disassemble--

Justice Scalia: --Yeah, but you're... you're arguing a constitutional restriction here.

Your... your argument is not that Congress has not provided the authority.

Your argument is Congress can't provide the authority.

So what, it seems to me what Justice Souter is asking is, if Congress can provide the authority to uncrate the statue, what constitutional prohibition is there to uncrating the gas tank?

Mr. Hubachek: --Well, of course, in their brief, the Solicitor Generals argued that that statute is... does go along with the constitutional protection, so I think that the fact that the same Congress that passed the Fourth Amendment had this narrow view of what you can open, packages with the two witnesses there.

And they were also obligated if there was--

Justice Souter: No, but, I mean, we... we didn't have this problem in 1790 or 1799, and the question is, what is the difference in principle for constitutional purposes between opening up, disassembling my crate, and disassembling the gas tank?

And the only thing that I can think of is, based on what you've said so far, is the concern that maybe the gas tank won't work or I'll have to disclose it to a subsequent purchaser, or the emissions system will be hurt.

Do you have anything else to distinguish in principle between the... the uncrating and the opening of the tank?

Mr. Hubachek: --Well... well, yes.

There's also the notion of the... that was relied upon in Molina-Tarazon, the security of the individual who's in the vehicle, and there's also the--

Justice Souter: Well, the security is... is the... is the concern that maybe the tank won't work or... or are you saying maybe... maybe the... it'll blow up?

Is that what you mean by the security?

Mr. Hubachek: --Right, yeah.

Justice Souter: Okay.

Well, the individual, I assume, is not in the car when they take the tank out, so we're talking simply about property damage.

When they uncrate the statue, they might knock the hand off, but they can still uncrate the statue.

What... anything else in principle between the two situations?

Mr. Hubachek: Well, I think that crates are intended to be open.

If, you know, you packed it carefully and ultimately you intend to unpack it, so you intend to pack the... the crate.

I don't think it's reasonable though to disassemble a valuable piece of property that has safety implications--

Justice Souter: So it depends on my intention?

Mr. Hubachek: --Well, I think what--

Justice Souter: I intend the crate to be opened, but when I buy a gas tank I don't intend it to be opened?

Mr. Hubachek: --Right.

I think that that's... that's... if there's--

Justice Souter: But that's not the expectation of privacy test.

Mr. Hubachek: --No, I think it's... it's the property--

Justice Souter: So this is a new test, I take it?

Mr. Hubachek: --No.

Soldal establishes that even if there is no invasion of privacy, there is still a Fourth Amendment intrusion if there's a seizure of property.

This is a meaningful interference with the... your enjoyment of the possession of your property.

Justice Souter: No, but the distinction between the two cases, I take it, now is the intent of the owner of the property that is disassembled.

In the one case, the owner ultimately intends the crate to be opened up.

In the other case, he does not intend the gas tank to be opened up.

Is, is that it?

Mr. Hubachek: Well, I don't think it's a subjective test.

I think it would be... we're talking about reasonableness under the Fourth Amendment and--

Justice Ginsburg: Well, if that... it can't be that he doesn't... well, expected to be opened up.

If it's... if it's a container where things can be carried, one of the things that the Government said in its brief is that if luggage is free and then this will become the container of choice, and we know that in a very high percentage there have found drugs there.

So it is a container, we know it's been used as a container.

Why should it not be treated like any other container?

Mr. Hubachek: --Well, I think it's different from any other container because it's part of a vehicle that was never expected or intended by its designers to be taken apart in this manner.

But I would also say that there's been 15 years of history in which, you know, courts of appeals have applied Montoya to searches of property.

If smugglers were changing their patterns in response to those decisions, this... the Tenth Circuit rendered its decision 15 years ago, the Fifth Circuit rendered its decision 5 years ago.

The Government offered no evidence below that there have been changes in smuggling patterns based upon those courts' decisions applying a reasonable suspicion standard.

Yeah, but those... those cases it didn't involve gas tanks, if I understand correctly.

That's... that's correct.

They didn't involve gas tanks, but they involved vehicles, and basically the theory was is that if smugglers--

May I... may I ask you a hypothetical?

Supposing Congress passed a statute specifically authorizing gas tank searches and providing in the statute that after the search shall be conducted, the... there will be two people on hand, one, Mr. Goodwrench, and one Mr. Value Appraiser, and they would have to give a good certificate, both of them have to give a certificate that the value of the car has not been impaired by what has been happened, and if it has, the amount of value will be reimbursed immediately by the Government to the owner.

Would that be a constitutional statute?

--Well, I think that, you know, since ultimately we're talking about reasonableness, that would address some of the objections that I've made today, but I still think--

Would it... would it cure enough of them to be constitutional is the question?

--I don't... I don't think that it would, because I still think that that's beyond what the First Congress envisioned and that's a... our best guide to what the Fourth Amendment was intended to mean.

They didn't authorize the disassembly of the ships that were coming into port.

They didn't say that, you know, if you took two ship builders on board.

What they said was, you can take apart the packages, things that are intended to be opened, but you have to have two witnesses, and if it turns out that there's nothing in there, you have to... the customs officer would have to pay--

My hypo gave you your two witnesses.

--I... I understand, Your Honor.

Justice Kennedy: If 85 percent of the people with the gas tanks that were searched have the contraband, what you're asking us to do is to protect the expectation of the other 15 percent.

I... I suppose that's the rule, but it... when the percentages get these high, it... it seems to me to put the exclusionary rule somewhat into question with reference to the border.

Suppose it was 95 percent.

Do we still have to protect the 5 percent of the people?

I mean, I guess that's the law.

Mr. Hubachek: Well, Justice Kennedy, there's no showing that adopting the rule that we're asking for would have any effect on the effect... effectiveness of the border searches.

There's no evidence offered below that, you know, the... if you deprive them of the ability to random searches that there will be even one more person who would get through.

So I think that if they--

Justice Kennedy: Well, that works the other way around as well.

Mr. Hubachek: --Well, that's true, but it would still vest the absolute discretion across the border for any customs inspector for no reason at all to disassemble valuable property.

That's inconsistent with the history of the Fourth Amendment, it's inconsistent with the Nation's earliest statutes, it's even inconsistent with section 1461, which applies directly to entries from contiguous countries, and that--

Justice Scalia: Well, for... for no reason at all they can... they can conduct searches of... of the person, right, without any suspicion?

That's okay.

Mr. Hubachek: --That's correct.

Justice Scalia: The Gucci shoes and everything else.

But somehow when you... when you reach this... this magical, what, disassembly of a vehicle, that that has some special constitutional status.

I... I find that quite implausible.

Mr. Hubachek: Well, Justice Scalia, I think that the importance is, is that it is very... we're asking for a standard that's... comports with what was adopted in 1789 and 1790, and the 1461 statute that's currently applicable talks about allowing the customs inspectors to look inside the vehicle by providing a key, not by providing a lift or providing tools, but by providing a key.

That's what's reasonable, that's what's routine, that's what's should be protected by the Fourth Amendment.

Justice Ginsburg: Do you... do you question the... the Government gave an example, I think from fiscal year 2003.

They said 300 fuel tanks were disassembled and put back along the southern border without incident, that is, no explosion and no malfunction in the vehicles for the travels.

Mr. Hubachek: I don't have any additional information about those.

I mean, I don't know if that violated those individuals' leases, whether they felt a lack of security as was discussed in the Molina-Tarazon case, whether their warranties were any way affected, they simply don't have any information.

Justice Ginsburg: But it would be a graver concern than a warranty if the vehicle might blow up after.

And... but there doesn't seem to be any evidence of that, that there's a high risk that that would occur.

Mr. Hubachek: Well, there's no risk... apparently there's no evidence of anything blowing up, but that doesn't mean that individuals' security was implicated as they drove away from the border knowing that their valuable property had been altered by unknown government functionaries.

If the Court has no further questions, I'll submit.

Rebuttal of Lisa Schiavo Blatt

Chief Justice Rehnquist: Thank you, Mr. Hubachek.

Ms. Blatt, you have three minutes remaining.

Mr. Blatt: Thank you, Mr. Chief Justice.

Justice Kennedy, you asked about the 25 percent figure, and in the appendix to the petition at 12a, that 25 percent figure relates to vehicle drug seizures, so what customs meant by seizures was from the vehicle.

That wouldn't include stuff found in someone's pockets.

Justice Breyer, you asked about how we track searches.

There's apparently a nationwide computer tracking system where customs tracks all of their searches, both positive and negative, and when there's a positive report search, it's called a seizure.

When there's a negative, it's called an incident report, and the agent is in fact required to document what his reasons were... were for conducting the search, and the supervisor must read that, and if there was a problem developing about improper use of his resources at the border, the agent would be either trained or disciplined.

Justice Kennedy: Are those public documents?

Mr. Blatt: I would doubt it.

I don't know, Justice Kennedy, but given that it includes the reasons for conducting the search, but I... I just don't know.

I know it's called the TECS, but I don't know whether that's public or not.

Justice Scalia: Is it public that such a thing exists?

Is there--

Mr. Blatt: I've just made it public.

[Laughter]

Justice Scalia: --But... but... I mean besides your word for it.

I trust you implicitly, but I'd like to be able to cite something other than you.

Unknown Speaker: [Laughter]

Mr. Blatt: I... I'd have to go--

Justice Scalia: Okay.

Mr. Blatt: --on the Internet or something like that, Justice Scalia.

Rebuttal of Steven F. Hubachek

Mr. Hubachek: I don't want to cut you off if you had something else to say.

Justice Scalia: No, that was--

Mr. Hubachek: I just want... I do think it's correct though, is it not, that what really we're asked to decide is whether you have the power to make random searches?

I know that they're costly and unlikely, but I think it... it's... it's not unlikely in today's world that you might decide you want to search every one-hundredth vehicle or ever twenty-fifth vehicle to let the world know that even if they hire Ronald Coleman they might get searched.

That is correct, isn't it?

Rebuttal of Lisa Schiavo Blatt

Mr. Blatt: --That's correct, Justice Stevens, and it's quite conceivable if the country ever went on a red alert that the commissioner of customs might say, or if there was some vague intelligence about smuggling in pick-up trucks, they might want to do very extensive searches of pick-up trucks.

Now whether they'll actually ever come to that I hope not, but yet, this... the... the border power... the power to conduct a border search is one without any particularized suspicion.

Thank you, Mr. Chief Justice.

Chief Justice Rehnquist: Thank you, Ms. Blatt.

The case is submitted.