Court decision restricts vehicle drilling

By Staff -- Logistics Management, 4/1/1999

A recent decision by the U.S. Court of Appeals for the Fifth Circuit in Dallas won't stop the U.S. Customs Service from drilling into motor carrier equipment and cargo to detect drugs, but it is expected to limit the circumstances in which agents can perform the procedure.

In overturning the original conviction in United States v. Rivas, the appeals court suppressed evidence obtained when a customs inspector who did not have a warrant drilled holes in an auto-transport trailer and found cocaine. The judges said the federal government was unable to show that the agent had a "reasonable suspicion" that illegal drugs were hidden inside the trailer. Without "reasonable suspicion" or the stronger "probable cause," they added, federal agents may not conduct anything beyond a "routine border search" without a warrant.

Because the appeals court judges also ruled that the drilling of cargo and equipment was not a "routine search," they thereby disallowed evidence obtained by drilling without a warrant.

U.S. Customs may appeal the latest Rivas decision. In a position statement circulated to agency personnel, customs officials state that the agency disagrees with the judges' definition of "routine search" and "reasonable suspicion."

The likely result of the appeals court ruling is that customs agents will have to obtain a warrant before drilling equipment and cargo or at least document their reasons for doing so, says James Giermanski, Regents Professor at Texas A&M International University in Laredo, Texas. Until now, he reports, customs agents have not obtained warrants or documented their drilling activities, and some shippers and carriers have accused the agency of conducting purely random drillings.

The court decision also opens another avenue for shippers and carriers whose tort claims against U.S. Customs have been rejected to pursue reimbursement for damage to equipment and cargo. "Companies that filed tort claims have another leg up to go back to [the U.S.] Treasury and say that the search was done without probable cause," says Tom Wade, president of the Laredo Transportation Association.

Under tort claims procedures, Wade explains, the claimant can only request reimbursement for the cost of manufacturing a replacement for the damaged merchandise. His hope is that filing suit over a wrongful search might allow shippers and carriers to claim reimbursement for other costs incurred, such as lost sales, disruption of production lines, and duplicate transportation, forwarding, and customs clearance costs for replacement merchandise.

For shippers, carriers, importers, and consumers, the aim is not to interfere with U.S. Customs' drug-interdiction efforts, but simply to prevent unnecessary damage and to obtain reimbursement for losses caused by customs' actions. "Nobody wants to do anything that detracts from the war on drugs," Wade emphasizes. "But ... the U.S. consumer can't afford to have U.S. Customs arbitrarily poking holes in everything."