IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-10302

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS RIVAS;

DOUGLAS IBARRA,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Texas, Dallas

October 2, 1998

Before DUHÉ, BENAVIDES, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

This case is before us on appeal from defendants’ convictions in the district court of one count

each of conspiracy to possess with the intent to distribute and possession with intent to distribute, in

excess of 5 kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. For the following

reasons we REVERSE in part and AFFIRM in part.

BACKGROUND

On September 4, 1995, Carlos Rivas applied to enter the United States at the Los Indios Port

of Entry at Brownsville, Texas. Rivas was the driver and sole occupant of a 1977 Kenworth truck

towing an ostensibly empty auto-transport trailer. He told Customs officials that he was going to San

Antonio to purchase used automobiles for resale in El Salvador. During the processing of Rivas for

entry into the country, Customs inspectors drilled into the frame of the trailer and discovered a white

powder which field-tested positive for cocaine.2

Surveillance was established on Rivas and his vehicle, and over the ensuing several days, Rivas

traveled to Dallas. Rivas met with Douglas Ibarra at the Deluxe Inn in Irving, Texas, on September

8, 1995. Rivas and Ibarra each removed luggage from their vehicles and placed t he luggage into

room 218 of the motel. They then drove their vehicles to a small commercial building in a fenced-off

lot in Dallas. Rivas left his tractor-trailer parked there and departed in a rental car. Ibarra departed

in his car. Customs agents arrested both men, and they obtained a search warrant to search t he

tractor-trailer. The agents used an acetylene torch to remove 40 one-kilogram bricks of cocaine from

the frame of the trailer.

Rivas and Ibarra were indicted and charged w it h one count of conspiracy to possess with

intent to distribute in excess of 5 kilograms of cocaine and with one count of possession with intent

to distribute in excess of 5 kilograms of cocaine. Rivas filed a motion to suppress evidence based on

Customs officials’ warrantless search of his truck at the border. The district court entered an order

ruling that the init

ial search of the truck at the border stop was legal but stating that it needed more

information before it could rule on the subsequent search of the truck in Dallas that resulted in the

discovery of 40 kilograms of cocaine. The court scheduled a hearing, however, nothing in the record

indicates that the hearing ever occurred or that any supplemental pleadings on the issue were ever

filed. The record reflects that, immediately prior to selecting a jury, counsel for Rivas stated that she

wanted to preserve Rivas’ right to appeal the district court’s ruling that the border search was legal.

The court assured counsel that she had done so.

After a three-day trial, the jury found Rivas and Ibarra guilty as charged. The court sentenced

Rivas to 188 months’ imprisonment and Ibarra to 170 months’ imprisonment. Each t imely filed his

notice of appeal.

DISCUSSION

I. Rivas’ Motion to Suppress

Rivas argues that the search of his vehicle at the port of entry violated the Fourth Amendment.

In ruling on Rivas’ motion to suppress, the district court did not conduct a suppression hearing but3

stated that “governmental officers at the international border may conduct routine stops and searches

without a warrant or probable cause.” The court concluded that “[b]ecause [Rivas] was entering the

United States, U.S. Customs o fficials were permitted to search his vehicle, without a warrant, prior

to entry.” Implicit in the court’s ruling was a determination that the Customs officials’ drilling holes

into Rivas’ vehicle amounted to a routine search.

In reviewing a district court’s ruling on a motion to suppress, we review questions of law de

novo and accept the trial court’s factual findings unless clearly erroneous. U nited States v. CarrilloMorales

, 27 F.3d 1054, 1060-61 (5th Cir. 1994) (citations omitted). As we noted above, however,

the district court did not hold a hearing on the suppression iss ue and ent ered no factual findings

regarding this issue.

“[W]arrantless s earches and seizures are unreasonable per se unless they fall within a few

narrowly defined exceptions.” United States v. Cardenas , 9 F.3d 1139, 1147 (5th Cir. 1993). The

border-search doctrine is one of those exceptions. I d. Under the border-search doctrine, government

agents may conduct a “routine search” at the international border or its functional equivalent without

probable cause, a warrant, or any suspicion to justify the search. I d. at 1147-48. “Routine searches”

are generally classified as those which do not "seriously invade a traveler's privacy." I d. at 1148 n.3.

A stop and search that is not "routine" requires a "reasonable suspicion o f wrongdoi ng to pass

constitu t ional muster." I d. (internal quotati ons and citation omitted). Reasonable suspicion of

criminal activity must be based upon "specific facts which, t aken t o gether with rational inferences

therefrom, rea so nably warrant an intrusion." I d. at 1153. Reasonable suspicion is defined as “a

particularized an d o bject ive basis for suspecting the particular person” of smuggling contraband.

United States v. Montoya de Hernandez

, 473 U.S. 531, 541 (1985) (internal quotati on and citation

omitted). In determining whether government agents possessed a reasonable suspicion that criminal

activity was occurring, we must consider "the totality of the particular circumstances." C ardenas

, 9

F.3d at 1148 (internal quotations and citation omitted).4

This Circuit has never before confronted the issue of whether drilling into the body of a

vehicle at a border checkpoint amounts to a routine or a nonroutine sea rch. However, the Fi rst

Circuit has held that drilling into a closed, metal cylinder was not a routine search because force was

used to effect the search. U nited States v. Robles

, 4 5 F.3d 1, 5 (1st Cir. 1995) (“We have little

difficult y concluding that drilling a hole into the cylinder was not a routine search.”). We agree with

this analysis and conclude that drilling into Rivas’ trailer was a nonroutine search.

Accordingly, we must determine if the Customs o fficials had a reasonable level of suspicion

when they conducted their search. In the instant case, Customs officials’s suspicions appear to have

been aroused by a drug-detecting dog’s inspection of Rivas’ truck and trailer during Rivas’ entry at

the Los Indios port of entry. The dog did not alert to the presence of narcotics at any point during

this inspection. Instead, a Customs o fficial testified that the dog “cast” a couple of times. When

asked to explain in layman’s terms what casting was, he provided the following explanation:

From the points of entry that we have, the canines are assigned with the dog handlers,

our canines that are aggressive, alert, whic h means that when they detect what they

feel is the presence of narcotics in either conveyance or baggage or whatever form it

may be, the dog alerts to it aggressively scratching at it or trying to bite at it. That’s

what we term as aggressive alert.

The phrase of “casting” is in a sense the dog maybe feels not a strong alert, but

something that tem

po rarily stops him and deters his attention at that point. And

although he doesn’t pursue as aggressive aler t , he do es stop and give it minute

attention and continues with his duties by continuing his examination.

We have held that a drug-dog’s alert is sufficient to create probable cause for a search. U nited States

v. Williams

, 69 F.3d 27, 28 (5 th Cir. 1995). Our review of the case law, however, reveals t hat no

federal court has ever confronted a situation where a dog’s c ast is used to justi fy a search, nor a

situation where a “weak alert” on its own triggers a search. The government bears the ultimate

burden of proof when it searches without a warrant. U nited States v. Roch

. 5 F.3d 894, 897 (5 th Cir.

1993).

We hold that, in this case, the government has not met its burden. The government has not

provided sufficient evidence that casting should always be deemed equivalent to an alert as a matter

of law. It did not put on any expert testimony on what casting means, or what weight we should give5

it. The Customs official testified that he sought out the dog handler for his opinion as to why the dog

had cast the vehicle, but defense counsel properly objected to his answer on the ground of hearsay.

The government did not attempt to cure this lapse in its evidence by putting on the dog handler. In

fact, the only evidence the government can rely on is the lay testimony by the Customs official that

the difference between an alert and a cast is the difference between scratching and biting at an object,

and temp o rarily stopping, giving part of the object “minute attention” and continuing with the

inspection.. If anything, this evidence suggests that casting is too distantly related to an alert to create

reasonable suspicion on its own as a matter of l aw. We t hus conclude that in this case, the

government has not satisfied its burden of proving it had a reasonable suspicion when the dog’s cast

at Rivas’ vehicle. We thus grant Rivas’ motion to suppress, and exclude all evidence obtained from

the border search.

Rivas also asks that we exclude all evidence obtained as a result of the border search under

the "fruit of the poisonous tree" doctrine. S ee Wong Sun v. United States

, 371 U.S. 471, 484 (1963).

Under the "fruit of the poisonous tree" doctrine, all evidence derived fro m the exploitation of an

illegal search or seizure must be suppressed, unless the Government shows that there was a break in

the chain of events sufficient to re f ute the inference that the evidence was a product of the Fourth

Amendment violation. B rown v. Illino is

, 422 U.S. 590, 602-03 (1975). The Government made no

such showing. Therefore, the evidence obtained after the bo rder search, including the evidence

derived from the subsequent warranted search of his vehicle in Dallas, must also be suppressed.

Because all of the evidence obtained against Rivas is excluded, we REVERSE his convictions.

II. Ibarra’s Insufficiency of the Evidence Claim

Ibarra argues on appeal that the evidence was not sufficient to support his convictions. He did

not file a motion to suppress the evidence gathered during the border search. As a result, he has

waived the objection, and the evidence of the cocaine may be used against him.

Ibarra moved for a judgment of acquittal at the close of the Government’s evidence. He did

no t , however, move for a judgment of acquittal after the verdict. S ee Fed. R. Crim. P. 29(c). As6

such, review of Ibarra’s sufficiency chall enge is limited to a determination whether his conviction

results in a manifest miscarriage of justice. S ee United States v. Inocencio

, 40 F.3d 716, 724 (5th

Cir. 1994). “‘Such a miscarriage would exist o nly if the record is devoid of evidence pointing to

guilt, or

. . . because the evidence on a key element of the offense was so tenuous that a conviction

would be shocking.’” Id. (quoting United States v. Pierre

, 958 F.2d 1304, 1310 (5th Cir. 1992) (en

banc)).

This is not the case. Ibarra claims that he was in the business of buying and selling used cars

and that was why he met with Rivas at the motel and at the empty lot. However, given that the lot

in which Rivas and Ibarra met was vacant of used cars an d t hat Ibarra had recently purchased

grinders, hammers and punchers -- tools that would have been useful in removing the cocaine from

the auto transport -- a reasonable jury could have easily concluded that he was guilty.

III. Ibarra’s Ineffective-Assistance-of-Counsel Claim

Ibarra also asserts that he received ineffective assistance of counsel. “As a general rule, Sixth

Amendment claims of ineffective assistance of counsel cannot be litigated o n direct appeal, unless

they were adequately raised in the district court." U nited States v. Gibson

, 55 F.3d 173, 179 (5th Cir.

1995). If the claim is raised for the first time on appeal, the court will reach the merits of the claim

only "in rare cases where the record [allows the court] to evaluate fairly the merits of the claim."

United States v. Higdon

, 832 F.2d 312, 314 (5th Cir. 1987). Ibarra’s is not one of those rare cases.

Any ineffective-assistance claim he may wish to bring may be brought in a 28 U.S.C. § 2255 motion.

CONCLUSION

For the forgoing reasons, we REVERSE the convictions of Carlos Rivas and AFFIRM the

convictions of Douglas Ibarra.