Metropolitan News-Enterprise


Tuesday, July 9, 2002


Page 1


Brief Handcuffing at Border Does Not Require Probable Cause—Court


By ROBERT GREENE, Staff Writer


U.S. agents may briefly handcuff a person entering the nation at the border without probable cause to believe that he committed a crime or that searching him without first cuffing him would be dangerous, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

In a pair of rulings that also broaden the definition of “routine” border searches, the court ruled that the practice of customs inspectors to handcuff people they consider suspicious does not convert a brief detention for  questioning and inspection into an arrest.

That means Ricardo A. Bravo’s confession to drug smuggling at a Calexico border security office, where he was taken in handcuffs by an inspector, could be used against him.

Because he was in cuffs for only the 30-40-yard walk from his car to the security office, the court said, and because he was told the cuffs would soon be taken off and that he could leave if nothing was found in his truck, there was no arrest and no need to show good cause or read Bravo his Miranda warnings.

Bravo was told that the handcuffs were to secure his own safety, as  well as the officer’s.

“Taken together, the circumstances of Bravo’s detention would lead a reasonable innocent person to believe that he would be free to go once the search was over and he answered any questions,” Judge Diarmuid F. O’Scannlain wrote for the three-judge panel.

Other Circumstances

O’Scannlain also noted that a drug detection dog had “alerted” to Bravo’s truck, an agent suspected a hidden compartment in his toolbox, the border was only a short 20-yard dash away, and two agents had been shot in “similar” circumstances several years ago.

In dissent, Judge Richard A. Paez said none of those factors provided any justification for handcuffing Bravo, since there was no indication that he might try to escape or harm any of the officers.

Deputy Federal Public Defender Benjamin Coleman, who argued for both Bravo and Juan Arthur Zaragoza, the defendant in the companion case, said the majority misapplied what has long been greater leeway in the law for detentions at the border.

No Weapons

He noted that Coleman was “frisked” before he was handcuffed, so agents already knew he had no weapons.

Coleman said there was even less need to handcuff someone for safety at a border station, where there are dozens of armed government officers, than on a lonely road inside the country where a single police officer stops a car full of people for speeding. Police officers in that situation have no legal right to handcuff anyone without suspicion of wrongdoing.

“In order to handcuff somebody in the interior of the country you need to have a good reason to do so,” Coleman said. “The standard should be no different at the border.”

Coleman, who said he planned to petition the court for rehearing, said the ruling could open the door to handcuffing passengers without good cause as they disembark from international flights at the airport while they are being questioned and their luggage is inspected.

U.S. Attorney Patrick K. O’Toole of the Southern District of California, who argued the government’s case and hailed the decisions, cautioned against reading the opinions to mean “that the sky is falling.”

“In this case the person was temporarily handcuffed only from point A to point B,” O’Toole said. “It was for a short period of time. Once they got to the secondary office they took the handcuffs off. The person being detained is specifically told what’s going on. There is some indication of possible criminal activity. That’s an important part of the case.”

O’Toole declined to speculate on the impact on airport detentions.

“This case was decided with the factual backdrop of the true border with ports of entry here in California,” O’Toole said. “I’m not aware of any temporary handcuffing being done at an international airport. We’ll have to wait and see whether this issue ever arises in that context.”

Both cases involve U.S. customs inspectors, who are part of the Treasury Department. They are distinct from the Border Patrol, which is part of the Immigration and Naturalization Service, an agency of the Justice Department.

Bravo was driving a Chevrolet Silverado when he stopped for “primary” inspection at the Calexico West port of entry on Sept. 23, 2000. A customs inspector who questioned him later testified that he thought Bravo was being “overly-friendly” in answering questions, so he called for an INS canine unit.

The dog “alerted” to a toolbox in Bravo’s truck, so another inspector opened it and found what he suspected was a false bottom.

Bravo was then told to get out of his truck, and was frisked, handcuffed, and walked to a security office where the cuffs were removed.

Meanwhile, an inspector hammered at the toolbox, damaging it, but discovering in the process 50 kilograms of marijuana. Bravo was then arrested and read his rights, and he made his confession.

Unlike in other cases in which damage to personal effects showed a border search was not “routine” and could not be conducted without reasonable suspicion, O’Scannlain said, in this case there was nothing about the damage to the toolbox that would make Bravo think he was at grave risk.

The cases are U.S. v. Bravo, 01-50159, and U.S. v. Zaragoza,  01-50320.


Copyright 2002, Metropolitan News Company