William H. Rehnquist: We'll hear argument now in 02-1794, the United States v. Manuel Flores-Montano. Ms. Blatt.
Lisa Schiavo 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.
Sandra Day O'Connor: Well, now in this case, I suppose the Government did have reasonable suspicion.
Lisa Schiavo 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.
Stephen G. 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?
Lisa Schiavo 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--
Ruth Bader Ginsburg: Can we go back to your--
Lisa Schiavo Blatt: --to conceal contraband.
Ruth Bader 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?
Lisa Schiavo 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.
Anthony M. 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--
Lisa Schiavo 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.
Stephen G. 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.
Lisa Schiavo Blatt: Well, that--
Stephen G. Breyer: Have you ever looked this up? Are there any... have you come across this kind of a problem?
Lisa Schiavo 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.
Stephen G. 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.
Sandra Day O'Connor: Well, I... wait a minute--
Stephen G. Breyer: --Anyway--
Sandra Day O'Connor: --I think the kick of the gas tank or the tapping showed it was full, not hollow.
Stephen G. Breyer: Full, whatever, whatever, whatever--
Sandra Day O'Connor: --Am I right?
Lisa Schiavo Blatt: Yes, it was--
Stephen G. Breyer: Showed... showed whatever it wasn't supposed to show.
Sandra Day O'Connor: Exactly. And I think the dog doesn't bark, he just alerts. Is that right?
Stephen G. Breyer: All right.
Lisa Schiavo Blatt: --That's right. But let me just say as a--
Sandra Day O'Connor: I know we have an agreement on that.
Lisa Schiavo Blatt: --as a prudential matter--
Antonin Scalia: Are we sure that there was reasonable suspicion?
Lisa Schiavo Blatt: --No, there's no--
Antonin Scalia: Or is it just possible that there was... that there reasonable suspicion?
Lisa Schiavo 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--
Sandra Day O'Connor: But the Ninth Circuit would require evidence of the training of the particular dog and so forth?
Lisa Schiavo 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--
Sandra Day 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?
Lisa Schiavo 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--
Sandra Day O'Connor: How much time does it take?
Lisa Schiavo Blatt: --Well, in this case, once the--
Sandra Day O'Connor: To take it off and put it back?
Lisa Schiavo 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--
Anthony M. 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?
Lisa Schiavo Blatt: --No, it's 20--
Anthony M. Kennedy: What's... the 25 percent is a percentage of what?
Lisa Schiavo Blatt: --Twenty-five percent of narcotics seizures in terms of amount of seizures along land borders. That doesn't include seaports--
Anthony M. Kennedy: Oh, 25 percent in terms of quantity?
Lisa Schiavo 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.
Anthony M. Kennedy: But included in that base is seizures from the person where somebody has it in their pocket and so forth?
Lisa Schiavo Blatt: Yes, that's correct, but--
William H. Rehnquist: Well, the gas tank here had 80 pounds in it, didn't it?
Lisa Schiavo 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.
Steven F. 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?
Lisa Schiavo 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--
Steven F. 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.
Lisa Schiavo Blatt: --Well, that may be, Your Honor, but this doesn't involve claim of damage and--
Steven F. 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--
Lisa Schiavo 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--
Sandra Day O'Connor: --You mean to repair it or to replace it?
Lisa Schiavo Blatt: --Well, you're right. You could have... you could have--
Sandra Day O'Connor: When you say $100, to reconnect it, it's about $100?
Lisa Schiavo Blatt: --That's right. You would... no, the item itself probably costs under $200, but you would have labor costs.
Sandra Day O'Connor: Well, that's not true. I recently had to get one, and it's expensive, I can tell you.
Speaker: [Laughter]
Lisa Schiavo 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--
David H. 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?
Lisa Schiavo Blatt: --That's right. And property is--
David H. 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?
Lisa Schiavo 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--
David H. Souter: No, but the customs isn't going to pay for it.
Lisa Schiavo Blatt: --Customs is not going to pay for that.
Antonin Scalia: But this would happen in a--
Lisa Schiavo Blatt: But--
Antonin Scalia: --reasonable search too, wouldn't it?
Lisa Schiavo Blatt: --Excuse me?
Antonin 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?
Lisa Schiavo Blatt: Well, that... that's absolutely true, but--
David H. Souter: Right, and you would also--
Antonin Scalia: --And that would... and that would not render what was otherwise a reasonable search unreasonable, would it?
Lisa Schiavo Blatt: --It would depend. As long... assuming they're acting reasonably in carrying out the search, it's still reasonable and--
Antonin 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?
Lisa Schiavo Blatt: --That's correct.
David H. Souter: And the reason--
Antonin Scalia: --So why should it do it here?
Lisa Schiavo Blatt: There have been thousands of disassemblies at the border--
David H. 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?
Lisa Schiavo 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.
Ruth Bader 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?
Lisa Schiavo 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.
Ruth Bader 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?
Lisa Schiavo 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.
Ruth Bader 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?
Lisa Schiavo 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.
Sandra Day 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?
Lisa Schiavo Blatt: It's... it's--
Sandra Day 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?
Lisa Schiavo 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.
Sandra Day 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?
Lisa Schiavo 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--
William H. Rehnquist: Have any of the other circuits followed the Ninth Circuit's... other circuits have that... which have land borders?
Lisa Schiavo 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.
Anthony M. 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?
Lisa Schiavo 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.
Stephen G. Breyer: But you don't know of the 8,000 what percent were without any suspicion?
Lisa Schiavo Blatt: No, but there's never been any kind of requirement. I... I think we can--
Stephen G. Breyer: All right. So--
Lisa Schiavo 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--
Stephen G. Breyer: --Yeah, I see.
Lisa Schiavo Blatt: --this Court's definition I think is unclear.
Stephen G. 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?
Lisa Schiavo Blatt: No, well--
Stephen G. Breyer: Or are there internal administrative checks that would be a kind of substitute for a judicial check?
Lisa Schiavo Blatt: --There are extensive training of customs officials--
Stephen G. Breyer: But what does it say--
Lisa Schiavo 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.
Ruth Bader Ginsburg: --When--
Lisa Schiavo Blatt: They also can consult with a supervisor if they have a question about whether a search should actually be done.
Stephen G. 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?
Lisa Schiavo Blatt: Well, his--
Stephen G. Breyer: I'm looking for some way of--
Lisa Schiavo Blatt: --supervisor would be aware of the search, but with a 85 to 90 percent success rate, that possibility seems rather remote.
Stephen G. 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.
Lisa Schiavo 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.
Antonin 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.
Lisa Schiavo 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.
Ruth Bader Ginsburg: Does that mean, for example, that you could rip out all the upholstery because you can hide drugs inside the upholstery?
Lisa Schiavo 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.
Ruth Bader 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?
Lisa Schiavo 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.
Ruth Bader 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?
Lisa Schiavo 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--
Steven F. 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?
Lisa Schiavo Blatt: --Well--
Steven F. Hubachek: Because I don't suppose you have a seamstress who sews up the seat right away.
Lisa Schiavo 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.
Steven F. Hubachek: But suppose it's something that cannot be repaired.
Lisa Schiavo Blatt: Let's--
Steven F. Hubachek: You have to cut up a seat... a seat cushion. What... what do you do?
Lisa Schiavo 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--
Steven F. Hubachek: I see.
Lisa Schiavo 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.
William H. Rehnquist: Very well, Ms. Blatt. Mr. Hubachek. Am I pronouncing your name correctly?
Steven F. 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.
William H. 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.
Steven F. 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.
Sandra Day 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?
Steven F. Hubachek: A ship could be searched thoroughly without reasonable suspicion. I... but--
Sandra Day O'Connor: But a land vehicle coming from, for example, Mexico at the land border crossing cannot be?
Steven F. Hubachek: --Well, I... the distinction that I would draw would be the point--
Sandra Day O'Connor: What is the difference?
Steven F. Hubachek: --of disassembly. I don't think that you can disassemble conveyances that come to the border.
Sandra Day O'Connor: You think that if the ship came in that the gas tank could be removed and examined for presence of illegal goods?
Steven F. 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--
Sandra Day 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.
Steven F. Hubachek: --And I certainly would--
Sandra Day O'Connor: And... and what are we supposed to do about that?
Steven F. 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--
Sandra Day 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.
Steven F. 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--
William H. 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?
Steven F. 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--
Sandra Day O'Connor: Is it not done along the Texas border?
Steven F. Hubachek: --I'm sure it is done, but there just hasn't been a case that has arisen.
Sandra Day O'Connor: But there hasn't been a reported case where it was challenged?
Steven F. 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.
David H. 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.
Steven F. Hubachek: Yeah, yes, that's correct.
David H. 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?
Steven F. 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--
David H. 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.
Steven F. Hubachek: --Well--
David H. Souter: So... so what is the... the property concern?
Steven F. 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--
Antonin 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?
Speaker: [Laughter]
Steven F. Hubachek: --No, I'm sure that it's not, and certainly you'd have to--
Stephen G. Breyer: Is that... is that the only kind of... I mean, I take it you concede there's no privacy interest here?
Steven F. Hubachek: --Well, I--
Stephen G. Breyer: And... is that right?
Steven F. Hubachek: --It... it certainly is... is not a tremendous privacy interest.
David H. Souter: Well, is there any?
Stephen G. 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?
Steven F. 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--
Sandra Day 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--
Steven F. Hubachek: --But--
Sandra Day O'Connor: --but not willing to let the customs service do the same thing?
Steven F. 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.
William H. Rehnquist: Well, how... how often does that happen that an innocent person has his gas tank person random... randomly disassembled?
Steven F. 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.
Anthony M. 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.
Steven F. 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.
Antonin 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?
Steven F. 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--
Sandra Day 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.
Steven F. 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--
Antonin 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.
Steven F. 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.
William H. 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?
Steven F. 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--
Ruth Bader 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.
Steven F. 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.
Antonin 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--
Steven F. Hubachek: Well, I... don't think that it's--
Antonin 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?
Steven F. Hubachek: --I think when it involves disassembly of property and--
Antonin 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?
Steven F. 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--
Antonin Scalia: What if the bottle's sealed? I mean, you know, it's... it's... it's a sealed bottle?
Steven F. Hubachek: --I... I guess--
Antonin Scalia: You have to break the seal.
Steven F. Hubachek: --That could result, I mean, that may be necessary--
Antonin Scalia: That can't be done?
Steven F. Hubachek: --That may... it may be situations where that shouldn't be done without--
Stephen G. Breyer: Suppose it's the same as a... suppose there's a terrorism problem and--
Antonin Scalia: --Wow.
Stephen G. 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?
Steven F. Hubachek: --If we're talking about a specific threat, where there is, you know, a specific--
Stephen G. 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?
Steven F. 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.
Stephen G. Breyer: All right, so in your view, suspicionless searches of trucks, whether for bombs, anthrax, weapons, or drugs all stand or fall together?
Steven F. 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--
Stephen G. Breyer: That's a different question. My question was, do they stand or fall together?
Steven F. Hubachek: --Right. I... I think that the... that our case is stronger than your hypothetical.
William H. 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.
Steven F. 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--
William H. Rehnquist: But... but you just can't transplant a case involving a car on a highway inland to the border.
Steven F. 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.
Antonin Scalia: What... what do you do about United States v. Ross when... when you're urging your... your... your disassembly point?
Steven F. Hubachek: Well--
Antonin 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.
Steven F. Hubachek: --Well, I... I think that--
Antonin Scalia: Now, why isn't that applicable here?
Steven F. 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--
Antonin 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.
Steven F. Hubachek: --Well, they can look into it with all of the... the various abilities that they have. If they have--
Antonin Scalia: They can't open it.
Steven F. Hubachek: --If they have reasonable--
Antonin Scalia: They can't... they can't open it.
Steven F. Hubachek: --If they have reasonable suspicion, they can.
Antonin Scalia: No, but without reasonable suspicion. I'm--
Steven F. 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.
David H. 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?
Steven F. Hubachek: Yes, they can, and that would be consistent with the 1790 statute, which said that you could open up the packages.
David H. 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?
Steven F. 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--
David H. Souter: Well--
Steven F. Hubachek: --to disassemble--
Antonin 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?
Steven F. 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--
David H. 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?
Steven F. 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--
David H. 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?
Steven F. Hubachek: --Right, yeah.
David H. 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?
Steven F. 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--
David H. Souter: So it depends on my intention?
Steven F. Hubachek: --Well, I think what--
David H. Souter: I intend the crate to be opened, but when I buy a gas tank I don't intend it to be opened?
Steven F. Hubachek: --Right. I think that that's... that's... if there's--
David H. Souter: But that's not the expectation of privacy test.
Steven F. Hubachek: --No, I think it's... it's the property--
David H. Souter: So this is a new test, I take it?
Steven F. 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.
David H. 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?
Steven F. 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--
Ruth Bader 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?
Steven F. 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.
Anthony M. 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.
Steven F. 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--
Anthony M. Kennedy: Well, that works the other way around as well.
Steven F. 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--
Antonin 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.
Steven F. Hubachek: --That's correct.
Antonin 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.
Steven F. 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.
Ruth Bader 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.
Steven F. 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.
Ruth Bader 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.
Steven F. 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.
William H. Rehnquist: Thank you, Mr. Hubachek. Ms. Blatt, you have three minutes remaining.
Lisa Schiavo 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.
Anthony M. Kennedy: Are those public documents?
Lisa Schiavo 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.
Antonin Scalia: Is it public that such a thing exists? Is there--
Lisa Schiavo Blatt: I've just made it public. [Laughter]
Antonin 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.
Speaker: [Laughter]
Lisa Schiavo Blatt: I... I'd have to go--
Antonin Scalia: Okay.
Lisa Schiavo Blatt: --on the Internet or something like that, Justice Scalia.
Steven F. Hubachek: I don't want to cut you off if you had something else to say.
Antonin Scalia: No, that was--
Steven F. 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?
Lisa Schiavo 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.
William H. Rehnquist: Thank you, Ms. Blatt. The case is submitted.


Crampton Harris: -- proper, furthermore familiar with the practices of the Board -- for me in response to the suggestion by Mr. Justice Brenan, that the Board has respected an election conducted under a state agency and declined to hold the Board election within a year thereafter, a fundamental fallacy.
William J. Brennan, Jr.: (Inaudible)
Crampton Harris: We can give you that exact case within 24 hours. I don't have it.
Felix Frankfurter: May I -- may I ask you exactly what -- is it that the Board has ordered such a non-board election?
Crampton Harris: No. They have respected one that -- was held and it was brought to their attention. I don't think they ordered such an election, but there is nothing in the law or to prevent them from doing it.
Felix Frankfurter: Well, that's -- that's rather important to me. Would it -- would an order -- will an order requiring or conditioning or would an order finding an unfair labor practice which is not in controversy here, I figured, I mean, before, I figured.
Crampton Harris: No -- no unfair -- no controversy about an unfair labor practice by the employer.
Felix Frankfurter: There is no -- would -- would an order by the Board in order to rectify and correct and prevent the recurrence of the continuing influence affect an unfair labor practice by requesting that some, a state agency make an election, would that be all right?
Crampton Harris: Well, it's wholly unnecessary.
Felix Frankfurter: But I -- and that is the question. Suppose they did it, like in a -- I often see the Government are doing this that I think are unnecessary.
Crampton Harris: Well, the -- the answer is found here, Mr. Justice Frankfurter. Before you ever get to that, their fallacy is in supposing that because District 50 elected not to file the affidavits and the financial reports that the Board cannot conduct an election. The Board can conduct an election. District 50 didn't raise this question. We didn't commit an unfair labor practice. If we had committed an unfair labor practice as a part of logic, you might say that District 50 raised the question.
Felix Frankfurter: No, but the Board found what -- what this unfair labor practice means, you correct me if I'm wrong, is that the employer in violation of the Act exercised, intruded into, it interfered with, dominated for its purpose the action of the employee. And in order to see it that that influence, that illicit influence is dissipated, the Board has a right to recommend or formulate certain measures. And one of the measures that they suggest is that there be some independent, some antiseptic mode of determining what the real will of the employees is, isn't that right?Isn't that what it gets down here?
Crampton Harris: I can't accept one -- one statement that you make if the employer in this case dominated.
Felix Frankfurter: Well, I -- we -- I'm --
Crampton Harris: He -- he intruded --
Felix Frankfurter: Well --
Crampton Harris: -- on the --
Felix Frankfurter: He did something the law forbad.
Crampton Harris: Yes.
Felix Frankfurter: All right.
Crampton Harris: We don't dispute that.
Felix Frankfurter: All right.
Crampton Harris: We couldn't dispute --
Felix Frankfurter: Well, if it's something the law forbad in order to dissipate, in order to render completely nugatory the continuing force or influence of that illegality, the Board uses its head towards that to measure. That -- the problem was offered in here, when as the evil influence or the illicit influence, I am not using evil in any condemnatory moral sense. I am talking about something the law forbids. And the Board says, "We want to get the free willing of the employee." Now, they're certainly entitled to do that, aren't they? They say, in order to be sure that that illicit influence doesn't persist, we -- we are called upon, we have the power to devise ways and means to judge that that's -- there is such a dissipation. Now, you suggest, unless I misunderstand you, that that could be done from some state agency.
Crampton Harris: I stood -- I stated not -- I don't suggest that the Board call in a state agency to hold an election.
Felix Frankfurter: No, but --
Crampton Harris: I -- that would be absurd because they can hold it themselves and run a segment, trust themselves, doesn't -- does to anybody else.
William J. Brennan, Jr.: Do you mean by that, Mr. Harris perhaps this, the necessity for a compliance in a certification proceeding usually arises from the fact that District 50 or the union that wants the election and to be certified invokes the processes of the Board to obtain the certification. But that in this instance, it's not important whether the union is or is not certified. It may nevertheless accomplish its objective of discovering the freewill of the employee by itself conducting an election without the end result of a certification.
Crampton Harris: Absolutely. That is our position exactly, Mr. Justice Brennan. The certification is merely the handing a diploma to a man who has already completed his work for his law degree or his college degree.
Felix Frankfurter: And why would it have that power if you say, "could have"? What's the basis of --
Crampton Harris: (Voice Overlap) --
Felix Frankfurter: -- of holding an election, would Mr. Lewis really like to have the Board go in and hold elections in -- in -- among his locals, when he refused to have any trouble with the Board?Would he like that?
Crampton Harris: Well, I can't say what Mr. Lewis would like --
Felix Frankfurter: Well, I just wonder whether --
Crampton Harris: -- because I have never discussed it with him.
Felix Frankfurter: No. But that's a rhetorical question.
Crampton Harris: And with the colossal brain that he has, I don't think I can read his mind, at least not enough to be willing to state to this Court what he thinks.
Felix Frankfurter: Well, I -- (Inaudible) to imply what we all know he's not friendly to the Board, is he?
Crampton Harris: He's not what?
Felix Frankfurter: Friendly to the Board and he wants to do business about it.
Crampton Harris: Well, I -- I don't -- when men get into jobs of such great magnitude, like the members of this Court, it isn't a question of friendship. It isn't any personal animosity towards the members of the Board. It's a question of broad national policy of rights which we have under the law as passed by Congress and they don't acknowledge them and we on proper occasions, try to bring a new question to this Court so that this Court can decide it, in this particular case while the Board brought it to you. We chose two cases, one in the Fourth Circuit and one in the District of Columbia Circuit. In the Fourth Circuit, it's an unfair labor practice of premature recognition while there's a question concerning representation pending. In this one, you're familiar with the unfair labor practice. The Fourth Circuit in that case, Mr. Chief -- the Chief Judge Parker made this remark. He said, "Well, the men who -- the unions that have complied are not here, what difference was made to them? Was it to require certification?" They would have to prove that they had a majority. The Board can make us prove it and the court below said the only thing under the Board ruling. They didn't use that phrase. They said, "If they do conduct an election, District 50 will not be on the ballot." It's been done. You held an election in which the men vote whether they want teamsters or no union. And we're not on it. And we explained to the men, vote no union then nobody is certified. Now, in this case, the Board can't rest on the room while District 50 raised a question and we can't conduct an election because we didn't raise the question. In order to raise the question, we would have to file a charge and, "Oy, we've been gifted an unfair labor practice." You might logically say, "Well, you called that question to come up, but we're merely exercising rights that were given us by the Congress in a carefully studied piece of legislation and the amounts in that law, what the public policy was." And there is no doubt about the public policy to guarantee full freedom of designation to the man in full freedom of choice of representatives. And when the men have that right for this Board to say, "We would go contrary to the public policy of Congress." These men down here want District 50. Perhaps, they want Mr. John L. Lewis on account of his reputation for strength and for administering his welfare fund for the benefit of the minor. We want him and to say that you can never get the union of your choice. In my mind, that is administrative amendment of an Act of Congress. Now, it won't bring any pressure, Mr. Justice Frankfurter on the -- the unions that it qualified, if I'm correct, because they've already complied the five affidavits and the certificate is something if they get automatically if they demonstrate their majority in the election.
Felix Frankfurter: But they could be complied in five minutes.
Crampton Harris: If they decompiled, that wouldn't take them out from under the Board election. What would they gain by decomplying in that particular? The -- the Board can conduct an election. They are wrong in saying they can't conduct an election.
Felix Frankfurter: I don't understand what you mean the Board in this case has could conduct an election. Just -- just spell that out, they don't extend it because the men will just -- they get on -- they wouldn't vote. They could frustrate that as a matter of cause.
Crampton Harris: Well, in any case if the men, 100%, they've refused to vote for anything anybody wants them to vote on. And so you can't correct that no matter what you do. But, if the Board conducts it and every man there votes no union, then the teamsters, say they asked for the election, they can't be certified. Suppose the Bowman Transportation, Bowman asked for the election because the teamsters say, "We want it." He asked it and the Board conducts the election. The teamsters don't get a majority and the Board does not certify the teamsters to (Inaudible) of Bowman. Then, he knows that evidently his men want District 50.
Charles E. Whittaker: Mr. Harris, may I ask you please? If yours had then a complying union, then would you concede that the Board's order was a valid order?
Crampton Harris: I would -- I don't think it's necessary. I had that question asked me by Judge (Inaudible), I believe. It is necessary for us to win this case before this Court to argue the validity there or none of that order with reference to a complying union.
Charles E. Whittaker: Now, may we go on? If the Board did have power to adopt the order that it did adopt, and it would have been valid as against a complying union, then you're limited here, are you not, to a discussion of whether or not the Court of Appeals had power to alter that order? Now, did they have? Are you going to discuss that in your argument? Did the Court of Appeals have power to rewrite the Board's order?
Crampton Harris: Yes, I'm willing to discuss that.
Charles E. Whittaker: All right.
Crampton Harris: The -- I used a wrong phrase a moment ago due to my inexperience in the detail to this labor work. The election they conduct is -- it would be -- the ballot would be, Teamsters - yes and Teamsters - no. Not "no union." If they were asking for an election where the teamsters were playing. I was wrong in saying it was both teamsters or no union. That -- excuse my inexperience. The situation in this changing world grew up when the Sections 9 (f), (g), and (h) were added to the Taft-Hartley Act. Under the old law, certification was not subject to those restrictions. Now, when the Taft-Hartley Act came in, the Board blithely went on applying the same rule. And to our mind, if we have a right to elect, to file or not to file, and I think Mr. Justice Burton and the Court made that point clear in the Arkansas Flooring case. If we have the right of election to file or not to file and if the men have a right to choose a union that has not filed, then the Board by no form of contrivance of order can take away that right from the men and that right from the union expressly conferred by the Act. Now, they talked about something incidental. In looking up incidental in Webster, the phrase meaning that it gives that is happening as a chance or underlying feature of something else, casual. It's not a prime concern. It is extremely difficult for me to see anything undesigned whereas a union that the Board knows has never filed under 9 (f), (g), and (h), nor did the determination of the international union has never survived. And they issue an order which says, "Because of the state of your mind, because you insist on your rights under the device of this order, we're going to put you out of business down here and you will never be able to represent it." And if they could do it in that instance, why, all the employer would have to do, he'd say, "I will -- I will give a little assistance to District 50." Whisper it to the other union and let them file an unfair labor charge and then I'll never have District 50 again. I don't know whether the Bowman Transportation Company wanted any union or not. Its in the -- they might have been figuring they were taking the lesser of two evils, because they haven't appeared to argue the case in the Court of Appeals and they haven't appeared here. Now, if the order of the Board was wrong, we come to the question of Mr. Justice Whittaker. Had the Board -- had the Court any power to modify the order? I know of no language more clearer than that found in Sections 10 (e) and (f) of the Act where it gives the Court of Appeals when the case is brought up to them, power to enforce or modify and of enforcing it as modified the order of the Board. Now, you can say it's all scripted or asked. There is no limitation on that power, except if there is any substantial evidence, the courts have to regard the finding of the Board. In Section 10 (e), you find and that's where a party brings it up. In that Section, they cannot raise any question. The Court cannot consider any question. It has not been raised before the Board of the agency. Now, we will not apply it. We came into the case when we saw this order which would put us out of business and gets them and in the Bowman Tracking Company's operation. We then filed a petition to review under 10 (f) which provides that any aggrieved person can petition the Board or the Court for review. And Section 10 (d) provides that so long as the Board hasn't filed the record in a Court to ask for enforcement, any person can apply to the Board for them to modify an order. We came in that way. And the Board first thought, we will eliminate them because they didn't take exception in 20 days. The court below found that we were not a party. Also, the Board withdrew from that contention and our power under the statute and under the rules and regulations of the Board to petition them for modification was never questioned any further, the stipulation it left, the 20 days in, they had raised that, paragraph (c) was eliminated by later stipulation and by order of the Court. Now, to my mind, it seems quite clear that where it isn't on a matter of fact but on a matter of law, the courts have the power to correct the Board. They have the power to modify and to enforce as modified. In those cases that they cited under note 15, on page 32 of their brief, where you find every one of those cases, the courts did consider modification and in some, they did modify. The first time the Board named the teamster -- the charging union and we won't punish you for working with them. Then, they suggested, add or any other union and the cases put that in. Then, respondent suggested or refrained from joining, if you want to. And to put that in, the Board didn't object to it. You find that a -- then a gradual change. Now, we didn't ask the Court to modify the notice. Mr. Judge Washington said that we didn't offer a suggestion to the Board. Well, we didn't because we hadn't studied their opinion intently enough to know what to suggest. We didn't because they wouldn't welcome our suggestion. A counsel stated in the court below on argument when Judge Washington asked him that. He said, "Well, we might as well face it if they'd suggested that we would've paid any attention to it." And furthermore, it seems strange to me that if your rights have been violated, that you will forfeit a chance to raise the question unless you suggest to the violator some other way to proceed. To my mind, there is no such duty to enact rules for the Board. We told them it was wrong and when the Court asked us what we would suggest, we picked from the language of the Board's opinion, until the man has the union, has been freely chosen in an atmosphere free of the improper influence.
William J. Brennan, Jr.: Well, I would suppose, Mr. Harris on the basis of your argument that should be sufficient and the Board may not go beyond that whether the union was complying or non-complying.
Crampton Harris: Well, that is my feeling, but I don't (Voice Overlap) --
William J. Brennan, Jr.: You don't have to -- you don't have to argue that now.
Crampton Harris: I state now as I stated in the Board's Circuit. I felt that way, but I don't think I have to take on that thing, And I don't have to argue for those unions that went the other way. In our case, we have a -- a practical problem due to the facts, due to the changing world where the law is different, the situation is different. And we say that if this Court as time and again said that the Board must fashion its orders to effectuate the policy of the Act. The Act says that and you've given them flexibility and now, although they are never bound by principle to res judicata, they say, "We want stare decisis and we don't want to adapt our remedy to the actual situation in the business world." And that the case has never been up before any Court, except the Fourth Circuit and this court below, and they both agreed with this that the Court -- I mean, that the Board did not have power to write such an order. It is a new case so far as any arguments ever been made on the point so far as I can find. I haven't found any case in any court where this question has been raised. When it was raised, it's significant that both courts agree that the order is not proper or it's not appropriate. It's absolutely far on duty, intent and policy of the Act. Now then, we may -- seem to the Board to be obstreperous. Most people who fight for their rights are not well received by the people with whom they fight. But if we didn't fight for our rights, if men want -- willing to litigate for their rights, there wouldn't be any use of me standing up here. And the President wouldn't have to go over the entire bar of America to pick out nine intellectual such as yourself to decide questions that men who believe fighting for their rights is a proper practice. Now, it maybe either in that sense, we are not friendly to the Board but there isn't anything personal. I don't feel that there is any necessity for me to cast aspersions on the Board, for me to throw bricks at anybody. They made a decision with which we disagree and the court below agreed with us instead of the Board. Thank you.