FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 04-50497 Plaintiff-Appellee,

D.C. No.

v.  CR-02-00536-IEG

MANUEL FLORES-MONTANO,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of California

Irma E. Gonzalez, District Judge, Presiding

Argued and Submitted

June 10, 2005—Pasadena, California

Filed September 14, 2005

Before: Betty B. Fletcher, Pamela Ann Rymer, and

Raymond C. Fisher, Circuit Judges.

Per Curiam Opinion

13241
COUNSEL

Benjamin L. Coleman, Esquire, San Diego California, for the

appellant. 

Mark R. Rehe, Assistant United States Attorney, San Diego,

California, for the appellee. 

UNITED STATES v. FLORES-MONTANO 13243
OPINION

PER CURIAM: 

Appellant Manuel Flores-Montano appeals from the denial

of his motion to suppress evidence and the resulting

conditional-plea conviction for “illegal importation of merchandise” after border inspectors found thirty-seven kilograms of marijuana in the gas tank of his vehicle during a

search of Flores-Montano’s vehicle as he was at the border

attempting to enter the country. Flores-Montano contends that

inspectors unlawfully searched his gas tank in violation of 19

U.S.C. § 482, which he contends requires some “subjective”

or “good faith” suspicion prior to conducting a search. We

hold that 19 U.S.C. § 1581(a), not § 482, authorizes and governs vehicle searches at the border. Because § 1581(a) contains no suspicion requirement, we affirm the conviction.

I.

On February 12, 2002, appellant Manuel Flores-Montano

drove a Ford Taurus station wagon to the United States border

at the Otay Mesa Port of Entry in Southern California. The

border inspector noticed that Flores-Montano avoided eye

contact during routine questioning, and that his hand was

shaking when he produced identification. The inspector then

tapped on the vehicle’s gas tank and noted that it sounded

solid. A narcotics-sniffing canine was then summoned, and

the dog alerted on the vehicle.1 At that point, Flores-Montano

was escorted to the security office and his vehicle was taken

to secondary inspection. 

1

Just as in the original proceedings, the government does not rely on

these facts — the observed nervousness, the solid sound of the gas tank,

and the canine sniff — that tend to support a reasonable suspicion to

believe that Flores-Montano was involved in criminal activity. Rather, the

government contends that no suspicion is needed to remove a gas tank,

even if it causes minor damage to the tank such as small dents, scratches,

and removal of the adhesive “bondo.” 

13244 UNITED STATES v. FLORES-MONTANO
Within twenty to thirty minutes, a mechanic arrived and

removed the gas tank. The car was raised in the air on a lift,

and the mechanic loosened bolts and straps on the undercarriage of the car and removed some hoses and electrical connections so that the gas tank could then be lowered. This

procedure took approximately ten to fifteen minutes. Once the

tank had been removed, the inspector hammered off some

adhesive “bondo” that had been applied over an access plate.

The access plate was then removed, and thirty-seven kilograms of marijuana were found wrapped in cellophane and

tape. The removal of the adhesive “bondo” and access plate

took another ten to fifteen minutes. None of the procedures

caused any significant damage to the gas tank or vehicle; the

government concedes that the tank might have been scratched

or slightly dented, but asserts that all vehicle components

could have been replaced without any perceptible damage. 

Flores-Montano was originally charged with narcotics

importation. When the government expressly declined to rely

on the dog sniff and other facts to justify its search, FloresMontano moved to suppress the evidence as having been

seized during a search unsupported by reasonable suspicion in

violation of the Fourth Amendment. The district court granted

the motion and suppressed the evidence. On appeal we

affirmed the suppression. The Supreme Court reversed, holding that no suspicion was required to perform a gas tank

search at the border. United States v. Flores-Montano, 541

U.S. 149 (2004). 

On remand to the district court, Flores-Montano again

moved to suppress, arguing that the search was one involving

“destructive force,” which must be supported by a reasonable

suspicion of unlawful activity. The district court denied the

motion, and Flores-Montano again entered a conditional

guilty plea and appealed the denial of the suppression motion.

In the present appeal, Flores-Montano abandons his Constitutional “destructive force” argument, and advances for the first

time that 19 U.S.C. § 482 requires that border inspectors have

UNITED STATES v. FLORES-MONTANO 13245
some “subjective” or “good faith” suspicion of wrongdoing in

order to carry out a search that is at least minimally damaging.

We have jurisdiction over this appeal pursuant to 28 U.S.C.

§ 1291, and we affirm.

II.

[1] As an initial matter, the government argues that FloresMontano’s statutory claim for relief has been waived, as it

was never raised before the district court. While issues not

raised to the district court normally are deemed waived, we

have recognized three narrow exceptions to this general rule.

United States v. Robertson, 52 F.3d 789, 791 (9th Cir. 1994).

Specifically, we may review newly presented issues:

[I]f (1) there are “exceptional circumstances” why

the issue was not raised in the trial court, (2) the new

issue arises while the appeal is pending because of

a change in the law, or (3) the issue presented is

purely one of law and the opposing party will suffer

no prejudice as a result of the failure to raise the

issue in the trial court. Further exception may be

made when plain error has occurred and an injustice

might otherwise result. 

Id. (quoting United States v. Flores-Payon, 942 F.2d 556, 558

(9th Cir. 1991) (internal quotations omitted)). 

[2] This case falls squarely within the third exception. We

conclude that the “the issue presented is purely one of law and

the [government] will suffer no prejudice as a result of the

failure to raise the issue in the trial court.”

2

Id. (internal quota2Appellant argues that his newly-presented statutory basis for arguing

that the gas tank search was unlawful constitutes a new argument, not a

new claim, and that arguments are not deemed waived. See United States

v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004) (holding that a

new argument as to why prior conviction was not an aggravated felony for

13246 UNITED STATES v. FLORES-MONTANO
tions omitted). We therefore exercise our discretion to review

Flores-Montano’s assertion that there is a federal statutory

requirement that border agents have some modicum of suspicion before conducting a minimally destructive search. 

III.

Flores-Montano argues that both 19 U.S.C. § 482 and 19

U.S.C. § 1581(a) govern border searches, and that § 482

requires a border inspector to have some “subjective” or

“good faith” suspicion in order to conduct a destructive

search, even where the damage to property is minimal. 

[3] Section 482 reads in full:

Search of vehicle and persons.

(a) Any of the officers or persons authorized to

board or search vessels may stop, search, and examine, as well without as within their respective districts, any vehicle, beast, or person, on which or

whom he or they shall suspect there is merchandise

which is subject to duty, or shall have been introduced into the United States in any manner contrary

deportation purposes was not waived when argued for first time on

appeal). We decline to reach this issue, and need not determine whether

Flores-Montano raises a new claim or merely a new argument. We likewise do not address the government’s argument that under Federal Rule

of Criminal Procedure 12(b)(3)(C), new grounds for suppression are

waived if not raised in a suppression motion “before trial.” See United

States v. Murillo, 288 F.3d 1126, 1135 (9th Cir. 2002) (holding that

ground for suppression not included in pre-trial motion to suppress was

waived); United States v. Wright, 215 F.3d 1020, 1026 (9th Cir. 2000)

(“failure to bring a timely suppression motion constitutes a waiver of the

issue”); United States v. Restrepo-Rua, 815 F.2d 1327, 1329 (9th Cir.

1987) (per curiam) (“Just as a failure to file a timely motion to suppress

evidence constitutes a waiver, so too does a failure to raise a particular

ground in support of a motion to suppress.”). 

UNITED STATES v. FLORES-MONTANO 13247
to law, whether by the person in possession or

charge, or by, in, or upon such vehicle or beast, or

otherwise, and to search any trunk or envelope,

wherever found, in which he may have a reasonable

cause to suspect there is merchandise which was

imported contrary to law; and if any such officer or

other person so authorized shall find any merchandise on or about any such vehicle, beast, or person,

or in any such trunk or envelope, which he shall

have reasonable cause to believe is subject to duty,

or to have been unlawfully introduced into the

United States, whether by the person in possession

or charge, or by, in, or upon such vehicle, beast, or

otherwise, he shall seize and secure the same for

trial. 

(b) Any officer or employee of the United States

conducting a search of a person pursuant to subsection (a) of this section shall not be held liable for any

civil damages as a result of such search if the officer

or employee performed the search in good faith and

used reasonable means while effectuating such

search. 

19 U.S.C. § 482 (emphasis added). Section 1581(a) reads: 

Boarding vessels.

(a) Customs officers.

Any officer of the customs may at any time go on

board of any vessel or vehicle at any place in the

United States or within the customs waters or, as he

may be authorized, within a customs-enforcement

area established under the Anti-Smuggling Act [19

U.S.C.A. § 1701 et seq.], or at any other authorized

place, without as well as within his district, and

examine the manifest and other documents and

13248 UNITED STATES v. FLORES-MONTANO
papers and examine, inspect, and search the vessel or

vehicle and every part thereof and any person, trunk,

package, or cargo on board, and to this end may hail

and stop such vessel or vehicle, and use all necessary

force to compel compliance. 

19 U.S.C. § 1581(a). The obvious difference between the two

statutory provisions is that the former contains language that

requires an officer to have “reasonable cause to suspect” that

an item to be searched was improperly imported into the

country, while the latter contains no such language. As

recently amended, the former also shields a searching officer

from liability so long as the search was performed in “good

faith and used reasonable means.” Flores-Montano asserts that

both sections apply to border searches such as the one conducted in the instant case, and that the border agents therefore

needed “reasonable cause” or a “good faith” belief that

Flores-Montano was involved in unlawful activity before

searching his vehicle. He relies on United States v. Sandoval

Vargas, 854 F.2d 1132, 1134-40 (9th Cir. 1988) (concluding

that both provisions apply to searches of vehicles at the border). 

[4] In United States v. Taghizadeh, 41 F.3d 1263 (9th Cir.

1994) (en banc), our unanimous en banc court held that 19

U.S.C. § 1582,3 rather than § 482, governs searches of “arriving baggage or mail.” Id. at 1266. In contrast, § 482 only

applies to “baggage or mail or other items which have already

‘arrived’ but which are suspected of having been imported

contrary to law.” Id. We based this conclusion on the text of

§ 482, which authorizes searches of trunks and envelopes

“wherever found,” so long as there is reasonable cause to sus3

19 U.S.C. § 1582 authorizes the Secretary of the Treasury to “prescribe

regulations for the search of persons and baggage” and provides that “all

persons coming into the United States from foreign countries shall be liable to detention and search by authorized officers or agents of the Government under such regulations.” 

UNITED STATES v. FLORES-MONTANO 13249
pect that they contain “merchandise which was imported contrary to law.” Id. (emphasis added). This language indicates

§ 482’s applicability to searches of items already in the interior. The distinction between the two statutes is carried over

into the regulations: § 482’s reasonable-cause-to-suspect

requirement is not incorporated into the regulations governing

customs inspections of packages entering the country. See 19

C.F.R. § 145.2.4 The en banc panel specifically overruled

DeVries v. Acree, 565 F.2d 577 (9th Cir. 1977), in favor of

the opinions of several circuits that had uniformly held that

“customs officials have unlimited discretion to search incoming international packages.” 41 F.3d at 1266 (citing United

States v. Glasser, 750 F.2d 1197, 1200-05 (3d Cir. 1984);

United States v. Pringle, 576 F.2d 1114, 1116 (5th Cir. 1978);

United States v. Emery, 541 F.2d 887, 889 (1st Cir. 1976);

United States v. Odland, 502 F.2d 148, 150 (7th Cir. 1974)).

Before Taghizadeh was decided, however, we had determined that both § 482 and § 1581 apply to searches of vehicles at the border, and that § 482’s requirement of “reasonable

cause to suspect” must govern inspections conducted at the

border as well as in the interior.5Sandoval Vargas, 854 F.2d

at 1136-38 & 1138 n.13 (citing United States v. Soto-Soto,

598 F.2d 545 (9th Cir. 1979)). We also held that § 482

requires only “subjective suspicion,” which is supplied

“whenever the person or vehicle being searched has just

entered the United States from outside.” Id. at 1139. “[T]he

4The court noted, however, that 19 C.F.R. § 145.3 may provide some

additional protections to letter mail entering the country, in contrast to the

package that was at issue in that case. Taghizadeh, 41 F.3d at 1266. 

5

In reaching this conclusion, we specifically rejected the Third Circuit’s

approach in Glasser, 750 F.2d at 1204, where the court had determined

that § 482 was a specialized provision that governs smuggled goods

already in the United States. Sandoval Vargas, 854 F.2d at 1138 n.13. In

contrast, our en banc decision in Taghizadeh cited Glasser with approval.

41 F.3d at 1266. 

13250 UNITED STATES v. FLORES-MONTANO
fact of entry is sufficient, in itself, to create subjective suspicion within the meaning of section 482.”

6

Id.

[5] By our decision in Taghizadeh, we clearly rejected any

notion that § 482 applies to searches conducted at the border.

41 F.3d at 1266. As the application of that statute is limited

to inspection of items that have already arrived in the country,

the governing statute is 19 U.S.C. § 1581(a), which contains

no suspicion requirement. That Taghizadeh involved inspection of incoming packages under 19 U.S.C. § 1582 is of no

consequence to our decision here. What is important is that

Taghizadeh’s rejection of § 482 as governing border searches

completely undermined the central holding in Sandoval Vargas.

7

 Relying on Taghizadeh, we hold that § 482 does not

apply to vehicle searches at the border.8 Section 1581(a) is the

6

It is difficult to understand how Flores-Montano could succeed even if

Sandoval Vargas were still good law. Under Sandoval Vargas, any suspicion required by § 482 would have been supplied by the fact that FloresMontano was seeking entry into the country from the outside. To the

extent Flores-Montano relies on some distinction between “routine” and

“non-routine” border searches, we regard such a distinction severely

undermined if not completely overruled in the context of property

searches. See United States v. Flores-Montano, 541 U.S. 149, 152 (2004)

(“Complex balancing tests to determine what is a ‘routine’ search of a

vehicle, as opposed to a more ‘intrusive’ search of a person, have no place

in border searches of vehicles.”). Nothing in the text of § 482 indicates

that the routine/non-routine analysis should be reinvigorated in the statutory context, particularly when it has been so soundly rejected in the Constitutional context. 

7We recognize that absent the abrogating effect of Taghizadeh, we

would be bound by Sandoval Vargas. One panel cannot overrule another,

but may “reject the prior opinion” where the prior opinion is irreconcilable

with “intervening higher authority.” Overstreet v. United Bhd. of Carpenters and Joiners of Am., Local Union No. 1506, 409 F.3d 1199, 1205 n.8

(9th Cir. 2005). “Intervening higher authority” includes intervening en

banc decisions. Id. (citing Cerrato v. San Francisco Cmty. College Dist.,

26 F.3d 968, 972 n.15 (9th Cir. 1994)). 

8This holding is further supported by the Supreme Court’s own reference to § 1581(a) as “[t]he modern statute that authorized the search in

this case”. Flores-Montano, 541 U.S. at 153; see also id. at 153 n.1 (quoting text of § 1581(a) in full). 

UNITED STATES v. FLORES-MONTANO 13251
governing statute, and it contains no requirement that officers

have any degree of suspicion for searches of vehicles at the

border. The suspicionless search of Flores-Montano’s gas

tank did not constitute a statutory violation.9

Finally, Flores-Montano further argues that a recent amendment to § 482, enacted after our decision in Taghizadeh, demonstrates that Congress intended for § 482 to apply to border

searches. See Trade Act of 2002, Pub. L. No. 107-210, § 341,

116 Stat. 933, 980. In 2002, § 482(b) was added, limiting liability of officers who conduct searches “in good faith [using]

reasonable means.” Nothing in the text of this amendment,

which refers simply to searches conducted “pursuant to subsection (a),” indicates that the subsection or § 482 on the

whole was to apply to border searches. Nevertheless, FloresMontano argues that an historical note to the amendment,

which requires posting of a racial profiling policy at all border

facilities,10 is evidence of Congress’ intent to make § 482

applicable to border searches. Nothing in the legislative history of the statute expressly indicates this intent, nor is there

any mention of our seemingly contradictory opinion in Taghizadeh. We decline to infer such broad intent from a requirement to post a policy at border facilities, in particular where

the text of the statutory amendment itself gives no indication

of such intent. If Congress wishes § 482 to be the statute governing border searches of vehicles, it may say so unequivocally. Until that time, we are bound by our precedent in

Taghizadeh. 

IV.

[6] In sum, we hold that 19 U.S.C. § 1581(a) governs vehi9We therefore need not determine whether a statutory violation would

require exclusion of the evidence seized as would normally be the case

where searches are conducted in violation of the Fourth Amendment. 

10See 19 U.S.C. § 482, Hist. and Stat. Notes (“Requirement to Post Policy and Procedures for Searches of Passengers”). 

13252 UNITED STATES v. FLORES-MONTANO
cle searches at the border. Because that statute contains no

requirement that an officer have suspicion of wrongdoing in

order to conduct such a search, we conclude that the search

of Flores-Montano’s gas tank did not violate the statute. We

therefore affirm the conviction. 

AFFIRMED. 

UNITED STATES v. FLORES-MONTANO 13253