9th Cir.: UPS’s sorting hub at Louisville KY is “functional equivalent of the border” when international package first arrived there

The Ninth Circuit held in United States v. Abbouchi, 05-50962 (9th Cir. July 13, 2007), that UPS’s Louisville KY sorting hub is the “functional equivalent of the border” when a package arrived there from outside of the country:

We have recognized that comparison of absolute time and spatial differences alone is not enough to distinguish between a search at the border’s functional equivalent and an extended border search. Rather, we also look to whether the search, as was true of Abbouchi’s package, occurred at the last practicable opportunity before its passage over the international border. Thus, in Almeida-Sanchez, the Supreme Court noted that “a search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City” would be at the functional equivalent of the border. See 413 U.S. at 273. Similarly, in Duncan, we held it would be “unreasonable” to require federal agents to wait until a suspect boards his airplane to conduct a search. See 693 F.2d at 977. Rather, it was enough that the defendant had checked his luggage, obtained his boarding pass, passed through security, and embarked on the ramp to his flight because these acts “manifest[ed] a definite commitment to leave the United States,” and the search occurred “in reasonable temporal and spatial proximity to the departure.” See id.

Stipulated facts before the court support reasonable suspicion for the initial stop of the defendant. United States v. Smith, 2007 U.S. Dist. LEXIS 50485 (N.D. Ohio July 12, 2007).*

Comment: This is a correct holding, despite the list serv stuff I’ve seen about it.

Court found exigent circumstances [not discussing that they potentially were of their own making] for a warrantless entry to prevent destruction of oxycontin when they learned that the defendant figured out most were counterfeit. Defendant officers’ motion for summary judgment granted. Lowe v. Henson, 2007 U.S. Dist. LEXIS 50563 (E.D. Tenn. July 11, 2007):

The agents were concerned that once Lowe, Jr. used the counterfeit pills, he would realize the police are on his trail and destroy the evidence, see United States v. Santana, 427 U.S. 38, 43 (1976), or that, after receiving the 200 doses of oxycontin, he would quickly “flip” the drugs for cash in order to make the next purchase from Agent Joyner. The case before the Court is not a situation where the agents could have impounded an area, such as a locker, until a warrant was obtained, see People v. Vogel, 58 Ill. App. 3d 910 (3rd Cir. 1978), or where the occupants could be observed so that evidence would not be destroyed. See Toles v. Friedman, 238 F.3d 424 (6th Cir. 2000) (Table). The plaintiffs were in possession of evidence that could be destroyed easily. Agents had to act promptly to effect an arrest and preserve the evidence.

2255 for IAC for defense counsel failing to file a motion to suppress fails where the defendant cannot show in his pleadings that the underlying claim was meritorious. Kadlec v. United States, 2007 U.S. Dist. LEXIS 50564 (E.D. Wis. July 11, 2007).*