Page 28 - TPA Journal January February 2023

the person’s decision to cross our sisted of questioning by CBP agents, a search of
national boundary. Tenorio’s vehicle, a canine sniff of his vehicle and
person, a weapons frisk, and an eventual request
“Non-routine” border searches, on that Tenorio lift his leg. These ordinary investiga-
the other hand, are more intrusive tive measures are, individually and collectively, a
and require a particularized reason- far cry from “cavity searches, strip searches, . . . x-
able suspicion before a search can rays” and other “objectively intrusive searches”
be conducted. Non-routine search- that “invade the ‘privacy and dignity of the indi-
es include body cavity searches, vidual.’” Tenorio’s detention did not exceed the
strip searches, and x-rays. These bounds of routine border searches and therefore
types of objectively intrusive did not require reasonable suspicion.
searches would likely cause any
person significant embarrassment, Finally, we do not address the constitutionality of
and invade the privacy and dignity the search of Tenorio’s cell phones. The district
of the individual. court made a finding, which Tenorio does not dis-
pute on appeal, that Agent Conner did not use any
Here, Tenorio first argues that the canine sniff of information from the phone search before or dur-
his person required reasonable suspicion. It did ing his interview with Tenorio. And the parties’
not. The record indicates that the dog sniffed stipulation of facts for Tenorio’s trial includes no
around Tenorio’s vehicle and person and gave a evidence from the cell-phone search. Accordingly,
positive alert to Tenorio’s boot. As the court in there is no evidence to be suppressed.
Kelly explained, “a canine sniff, even one involv- The district court did not err in denying Tenorio’s
ing some bodily contact, is no more intrusive than suppression motion. Tenorio’s conviction and sen-
a frisk or a pat-down, both of which clearly quali- tence are AFFIRMED.
fy as routine border searches.” The canine sniff
here was a routine border search and therefore did U.S. v. Tenorio, No. 21-50989, 5 th Cir., 2022.
not require individualized suspicion. Tenorio’s ****************************************
first argument lacks merit. *********************************

Tenorio’s second argument fails for similar rea-
sons. He contends that his detention was unconsti-
tutionally prolonged and amounted to a nonrou- ELEMENTS, EVIDENCE SUFFICIENCY
tine border search, requiring reasonable suspicion. – tampering with evidence.
But the length and circumstances of Tenorio’s
detention were consistent with a routine border Sholomo David, Appellant, was indicted for
search. The secondary search lasted approximate- felony tampering with physical evidence, a third-
ly ten minutes and Tenorio’s second argument degree felony. The State’s theories were that
fails for similar reasons. He contends that his Appellant “altered,” “concealed,” or “destroyed”
detention was unconstitutionally prolonged and marijuana when he dumped it into a toilet contain-
amounted to a nonroutine border search, requiring ing water and human waste during a police raid of
reasonable suspicion. But the length and circum- the motel room he was in. The jury convicted
stances of Tenorio’s detention were consistent Appellant and sentenced him to 30 years’ confine-
with a routine border search. The secondary ment as a habitual offender. Appellant appealed
search lasted approximately ten minutes and con- and argued among other things that the evidence is

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