CA1: racial profiling at border is cool

US v. Barrow, No. 04-2722.  Dude was stopping coming into the country.  The court describes just how fishy the guy looked, and eventually customs agents found cocaine in bottles inside a duty-free box that, unlike most duty free boxes was old and broken.  The District Court denied a motion to suppress the liquor bottles, and denied a request for an evidentiary hearing and he was convicted.  “Barrow does not contend that the testing of the contents of the liquor bottles was non-routine. He merely argues that the search was unreasonable but cites no case law in support of this proposition.”  The court does not address whether the testing was actually conducted in his presence, because, they figure it doesn’t matter. 

As to the evidentiary hearing, Barrow had argued that he was stopped initially because of his race.  But the court says that since initial stops at the border can be made for any reason or no reason at all, that the 14th amendment’s application to the 4th doesn’t matter, so even if the agents were lying about the reasons for stopping him, it doesn’t matter.  Essentially this means that racial profiling at the borders is like totally cool!  (I think the anti-racial profiling-crowd could do a better job of explaining this distinction: that most racial profiling arguments only kick in based on the protections afforded by the 4th.  For this reason, it made perfect sense when the administration declared that it would not racially profile, except in cases where it thinks that the 4th amendment doesn’t apply at all. See "Racial Profiling Fact Sheet" p. 6.)

For other holdings relating to sentencing, chains of custody, and cops who testify sort-of-as-experts, keep reading.

He also objects to the last-minute filing of notice of intent to use prior convictions.  The court concludes that this is cool, because “We have previously upheld the filing and service of an information the day before trial, and we similarly find no error here. United States v. Cartagena-Carrasquillo, 70 F.3d 706, 715 (1st Cir. 1995).”

The court rejects an argument that chain of custody indicates that the bottles were tainted.  In fact, by the time of trial, the bottles were broken.  But, the court holds that since they were broken after the contents was tested, it doesn’t matter.

An ICE agent testified at trial regarding international shipment of drugs.  Rather than attack this on FRE 702 grounds, he attacks it on FRE 403, as lacking foundation and being overly prejudicial.  It is rejected, since, guess what, this subject is usual in criminal cases, and since it wasn’t specific to the defendant, it couldn’t have done much harm.

A Booker remand is denied, because he couldn’t explain how he would do any better.

A cumulative error remand is denied, for obvious reasons.  A bunch of other issues are waived.