D.Ariz.: If law requires “an articulable suspicion or ‘a minimal showing of suspicion’… of criminal activity” for a secondary inspection, Customs had it

While the law is not clear, it appears that “an articulable suspicion or ‘a minimal showing of suspicion’… of criminal activity” is required to send a motorist at a border crossing for a secondary inspection. The officers had it here. United States v. Lewis, 2011 U.S. Dist. LEXIS 75689 (D. Ariz. July 12, 2011):

Although the law is not completely developed on this point, it appears that if a referral to a second inspection area is solely for drug-related concerns, the government must show “an articulable suspicion or ‘a minimal showing of suspicion’… of criminal activity.” United States v. Taylor, 934 F.2d 218, 221 (9th Cir. 1991) (quoting United States v. Couch, 688 F.2d 599, 604 (9th Cir. 1982)). An articulable suspicion is not equivalent to the reasonable suspicion standard. See Taylor, 934 F.2d at 221. It is a considerably lower standard. Whereas nervousness may create an articulable suspicion and be sufficient to justify referral to a secondary inspection area, nervousness alone would be insufficient to create reasonable suspicion. Id.

The search here could be justified by agreement to a probation search as a condition of release or probable cause for the search warrant in this case. The court goes with the latter. State v. Hansen, 151 Idaho 342, 256 P.3d 750 (2011).*