If federal judges don't like the Justice Department's litigation strategy, should they say so in their opinions? And what kinds of criticisms of DOJ litigation strategy are persuasive? These questions have arisen in an interesting line of Fourth Amendment border search cases.

  First, some background. In recent years, the Justice Department, the Ninth Circuit, and the Supreme Court have been involved in a bit of a tug-of-war over the rules that should govern invasive car searches at the Mexico border. The source of the problem is that drug smugglers have been thinking up more and more creative ways to smuggle drugs across the border inside cars and trucks. Specifically, smugglers often remove parts of a car or truck and put in fake parts that are actually stuffed with drugs. Border agents then need to actually dissassemble the vehicles to find the drugs. Border agents typically select the cars they want to investigate by using trained dogs; the combination of a drug-sniffing dog and a nervous driver may be enough to persuade the border patrol agents that it is worth their time and effort to focus on a particular car.

  The question is, what Fourth Amendment rules should border agents have to follow to disassemble parts of a car at the border? Before the Supreme Court's decision in United States v. Flores-Montano, 541 U.S. 149 (2004), the Ninth Circuit (and a few other circuits, I think) had created a rather complex framework in which some types of steps taken to search and disassemble cars at the border were deemed "non-routine," requiring reasonable suspicion, while other types of steps were considered routine and required no suspicion. The goal was to require reasonable suspicion before the border patrol could take particularly invasive steps.

  The Supreme Court rejected this approach in Flores-Montano, a case involving the disassembly of a gas tank. The unanimous decision of the Court construed "the Government's authority to conduct suspicionless inspections at the border" much more broadly than had the Ninth Circuit, and ruled that it could disassemble a gas tank without reasonable suspicion. In his decision, Chief Justice Rehnquist specifically criticized the Ninth Circuit for creating a doctrinal test that required reasonable suspicion for car searches at the border:

  The Court of Appeals took the term "routine," fashioned a new balancing test, and extended it to searches of vehicles. But the reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person--dignity and privacy interests of the person being searched--simply do not carry over to vehicles. Complex balancing tests to determine what is a "routine" search of a vehicle, as opposed to a more "intrusive" search of a person, have no place in border searches of vehicles.

  What difference does it make whether the police can take such steps with reasonable suspicion versus at any time, you may be wondering, given that the government ususally isn't going to bother to disassemble a car without some kind of individualized suspicion? My understanding is that the practical answer is the evidentiary hurdle. If the border agents need to establish reasonable suspicion, they need to document the suspicion and be able to prove it at a hearing in court. When the government's cause is based largely on a dog sniff, the government needs to establish the reliability of that particular dog in each case. If the agents do not need to establish reasonable suspicion, then the issue is one of law and there is no need for a factual inquiry or evidentiary hearing.

  All of this brings us to the latest round in the dispute, the Ninth Circuit's Sept 14th opinion in United States v. Chaudry. In Chaudry, a dog alerted to the presence of narcotics inside a pickup truck at the border. Border agents drilled a small hole in the bed of the pickup trick, revealing that it was a false truck bed stuffed with marijuana. The court recognized that the facts of the case fell within the principle of Flores-Montano, and ruled that the search was constitutional.

  The interesting part of the case is a special concurrence by Judge Betty Fletcher, as well as a shorter concurrence along somewhat similar lines by Judge Fisher. Judge Fletcher's concurrence had rather sharp words about the government's argument that the case was a simple application of Flores-Montano. According to Judge Fletcher, the government was engaging in "game-playing" by requiring the Ninth Circuit to apply the Supreme Court's precedent in Flores-Montano. If I understand Judge Fletcher's position correctly, the Justice Department deserved criticism for asking the Ninth Circuit to apply binding Supreme Court precedent rather than a line of overruled Ninth Circuit cases. The Justice Department probably could have followed the overruled Ninth Circuit cases without jeopardizing its convictions, Judge Fletcher reasoned; as a practical matter, agents were unlikely to go to the trouble of drilling into a pickup truck or dissambling a gas tank unless they already have reasonable suspicion. By refusing to put forward evidence of reasonable suspicion, permitting the Ninth Circuit to rely on its line of cases rather than the Supreme Court's opinion in Flores-Montano, the government had engaged in "game playing."

  Judge Fletcher offered two specific grounds for objecting to the government's strategy. Here's the first:

[S]uch appeals are essentially a request for an advisory opinion, as the dispute over whether or not a particular search may be conducted in the absence of any suspicion is an entirely fictional construct. Suspicion existed in each case, and in my view, review of cases at the appellate level is a waste of judicial resources. The only possible purposes are the government's desire to push the envelope to its limits: to find out just how much destruction it can do without any suspicion, and to avoid proving it uses reliable dogs.

  Am I mistaken, or is this a rather odd argument? The government hadn't filed the appeal, and its winning argument asked the Ninth Circuit to apply a Supreme Court precedent that obviated the need for an evidentiary hearing. This preserved judicial resources at the trial level (no need for a hearing), and presumably made no difference at the appellate level (in that the defendant would have appealed the question of reasonable suspicion rather than the application of Flores-Montano). The fact that Judge Fletcher apparently wanted to approve the government's conduct on a different theory than the government wanted doesn't mean that the government is asking for an "advisory opinion."

  Here is Judge Fletcher's second argument:

  [B]ecause there is ample suspicion in each case, it is difficult for judges to consider the issue cleanly on an unencumbered record. Evidence of probable criminal activity, especially evidence of narcotics detector dog alerts, cannot help but color judges' views of the facts. We inevitably think "harmless error." I must admit that I take comfort in knowing that the border agents in these cases did not rip apart the defendants' cars on a whim. However, were I to decide a case where there is truly no suspicion, and where five or ten exploratory holes are drilled in the exterior walls of a vehicle, I might reach a different result.

  Again, this seems like a puzzling argument. I certainly appreciate Judge Fletcher's candor: If she resolves these cases based on whether she personally feels comfortable with the government's conduct, then I suppose there is nothing wrong with her saying so. And it may explain her objection to the government's argument, too; the government's approach makes it difficult for a judge to translate his or her instincts about what is comfortable into a Fourth Amendment test. The difficulty is that the Supreme Court's unanimous opinion in Flores-Montano seems to foreclose such a free-ranging inquiry. Am I mistaken, or is Judge Fletcher criticizing the government for making it hard to conduct an inquiry that the Supreme Court has instructed lower court judges not to follow?

  Perhaps we would be better off in a world of Judge Fletcher's Fourth Amendment, rather than the Supreme Court's opinion in Flores-Montano. So to be clear, I don't have specific criticism of her substantive approach. But am I right that Judge Fletcher's criticism of the government's litigation strategy is rather weak in light of the Supreme Court's decision? Or am I missing something? Perhaps I am misunderstanding the government's strategy, and perhaps I am misreading Flores-Montano or Judge Fletcher's concurrence? If so, please post a comment and I would be happy to post a correction.