DUNN (G. W.), J.* I dissent.
I
I respectfully dissent from the view of the majority for two reasons: First, the evidence adduced at the trial was not sufficient to establish that the search in this case took place at a border location or at its functional equivalent. Inasmuch as the prosecution did not meet its burden of proving this necessary prerequisite, the search was subject to the stringent Fourth Amendment requirement to obtain a search warrant prior to any search. Second, the dog was used to conduct an indiscriminate, exploratory search, which is invalid even at a border site.
Border searches were exempted from probable cause requirements by the First Congress of the United States,1 and such searches are justified [26]by the interest in national self-protection. (Carroll v. United States (1925) 267 U.S. 132 [69 L.Ed. 543, 45 S.Ct. 280, 39 A.L.R. 790] (dictum); United States v. Ramsey (1977) 431 U.S. 606 [52 L.Ed.2d 617, 97 S.Ct. 1972] (dictum).) It is well settled, however, that border searches must take place at a border or at “the functional equivalent” thereof. (Almeida-Sanchez v. United States (1973) 413 U.S. 266, 273 [37 L.Ed.2d 596, 603, 93 S.Ct. 2535]; United States v. Ivey (5th Cir. 1977) 546 F.2d 139.) The test to determine whether a location meets the status of functional equivalency was developed as a result of a series of automobile searches at locations away from a border. Such searches constituted a substantial invasion of privacy and to protect that privacy from government arbitrariness the courts developed the functional equivalency standard.2 In order to justify the validity of the warrantless search conducted in this case, it was incumbent upon the prosecution to present evidence sufficient to establish that the search site was a border location or its functional equivalent. Mere proximity of the site to the border does not alone, it must be emphasized, justify a search in the absence of probable cause. (United States v. Storm (5th Cir. 1973) 480 F.2d 701, 705.) The protections of the Fourth Amendment may not be relaxed in a geographical area merely because some nexus with the border has been established. (United States v. Bowman (5th Cir. 1974) 502 F.2d 1215; United States v. Thompson (5th Cir. 1973) 475 F.2d 1359; People v. Duncan (1974) 40 Cal.App.3d 940 [115 Cal.Rptr. 699].)
Three general characteristics determine whether or not a location qualifies for functional equivalency status: (1) the proximity of the checkpoint to the border; (2) the permanent nature of the checkpoint; and (3) its hours of operation. (United States v. Hart (5th Cir. 1975) 506 F.2d 887, 896; United States v. Calvillo (5th Cir. 1976) 537 F.2d 158.) It is clear then, that the functional equivalency label is not one that may be arbitrarily bestowed. See United States v. Calvillo, supra, at page 160; Almeida-Sanchez v. United States, supra, 413 U.S. 266, at page 269 [37 L.Ed.2d 596 at pages 600-601].
A thorough perusal of the transcript of the trial proceedings in the case at hand reveals no evidence from which one can reasonably conclude that the Pasha car lot constituted a part of the border area or, in [27]the alternative, the functional equivalent of a border. The testimony on this issue, such as it is, was supplied by three witnesses one of whom was the customs inspector, LaFata. The dialogue between Officer LaFata, the Defense Attorney Williams and the prosecutor is illuminating on the issue of the lack of information as to the official status of the Pasha car lot:
“Q. Officer LaFata, as an inspector for the U.S. Customs Department, you are familiar with the Pasha Company lot, are you not?
“A. Yes.
“Q. Specifically Pier J, Berth 244, I believe it was?
“A. Yes.
“Q. That lot is private property, is it not sir?
“A. Yes, it is.
“Q. It is not quarantined property for U.S. Customs, is it?—(objections on the record)—
“A. To the best of my knowledge, no.
“Q. By Mr. Williams: There is no designation, to the best of your knowledge, as concerning that particular piece of property being isolated and under the control and jurisdiction of U.S. Customs, is it?— (objections on the record)—
“By Prosecutor Friedenberg: I would object to the form of the question as vague and uncertain, whether he means designation posted or designation within the records of the customs office.
“The Court: All right sustained.
“Q. By Mr. Williams: Officer LaFata, is there any postings contained around the property which designate it as isolated U.S. Customs property?
“A. On that particular property, none that I have seen, no.
[28]“Q. Officer LaFata,. have you been notified by any of your superiors or any other personnel in the customs department that that’s—specific property is designated as a quarantine zone for the U.S. Customs?
“A. I am not sure I know what you mean by ‘quarantine zone.’ I think that is what is confusing me.
“Q. All right. Has anybody in U.S. Customs designated the Pasha Company lot as property that is under the exclusive jurisdiction of U.S. Customs?
“A. As far as exclusive jurisdiction, I don’t know. We have—we have a section in customs that’s called cargo security, and when companies apply to have imported cargo sit there, their lots have to be approved, fencing, supposedly guard or some sort of security system that would allow them—I believe they have to post some sort of bond also when they apply for this thing. Now, if there is what you mean by customs jurisdiction, yes. I agree that it has been an approved lot for customs jurisdiction, yes. I agree that it has been an approved lot for customs jurisdiction for the importation of these cars.
“Q. It has been an approved lot?
“A. To the best of my knowledge, yes. I am not that cargo security officer, so I don’t know.”
The testimony of Customs Patrol Officer Cleveland on the issue of the status of the Pasha car terminal was equally unenlightening:
“Q. Pasha Company lot, are you familiar with that area?
“A. Yes, I am.
“Q. Have you ever been called upon to go over there and conduct searches?
“A. Called upon. We do them routinely.
“Q. Through the Pasha Company lot?
“A. Yes.
[29]“Q. Is that private property?
“A. Yes, it is.
“Q. Is it quarantined?
“A. It is a bonded area. It is a customs security area. It is under the auspices of customs.
“Q. What do you mean by that?
“A. It exists as a terminal with the graces of customs. Okay. It is—they have to comply with customs regulations and, you know, be available to customs, you know, for customs security reasons.”
This specific testimony and other similar testimony is insufficient in my view to establish the Pasha Company lot as a part of the border point of entry. In fact, a “terminal” which exists “with the graces of customs” would more likely appear to fall into the “functional equivalent of a border” status. But, in that event, the evidence falls short in that there is nothing to establish either the permanency of the location as an established checkpoint or its hours of operation.
It seems clear that these sparse facts supplied by the prosecution on the issue of the legal status of the Pasha lot are insufficient to carry its burden of proof that the search and seizure complained of herein occurred at a border location or at a location which is the functional equivalent of the border. The car lot is strategically or reasonably a good site for customs search purposes, however, on the basis of the present record, the search at this location cannot in my judgment be insulated from the probable cause requirement of the Fourth Amendment. (See United States v. Storm, supra, 480 F.2d 701, 705; United States v. Ortiz, supra, 422 U.S. 891; United States v. Alvarez-Gonzalez, supra, 542 F.2d 226; United States v. Calvillo, supra, 537 F.2d 158; Almeida-Sanchez v. United States, supra, 413 U.S. 266, 273 [37 L.Ed.2d 596, 602-603]; United States v. Martinez (5th Cir. 1976) 526 F.2d 954; United States v. Brignoni-Ponce (1975) 422 U.S. 873 [45 L.Ed.2d 607, 95 S.Ct. 2574].)
Although it is true that the nation’s perimeters are expandable for purposes of a border search whether under the auspices of the customs [30]authority or the immigration authority, it is incumbent upon the prosecution to prove, rather than leave to inference, that the area in which a search occurs, meets border status criteria. (See Marsh v. United States (5th Cir. 1965) 344 F.2d 317, 325; and United States v. McDaniel (5th Cir. 1972) 463 F.2d 129, 133, cert. den. 413 U.S. 919 [37 L.Ed.2d 1041, 93 S.Ct. 3046].) Were it otherwise, searches on less than reasonable cause would be permissible at any location within close proximity to any national frontier.
II
Although it is generally recognized that the borders are elastic and the right to search at the border is almost unfettered, the Fourth Amendment requirement of reasonableness is not emasculated. (See United States v. Yee Ngee How (N.D.Cal. 1952) 105 F.Supp. 517, 519.) Although for border searches we may “stretch the usual Fourth Amendment standard of probable cause,” United States v. McDaniel, supra, 463 F.2d 129, 133; cert. den. 413 U.S. 919, by requiring that warrantless searches be based upon “reasonable” rather than “probable” cause, customs officers may not engage in promiscuous searches. The facts adduced in this case establish that a prohibited promiscuous search occurred.
The search and seizure of which appellant complains occurred as a result of the olfactory prowess of a canine named Humphrey. Humphrey, on December 26, 1978, was taken by James McCauley, who was employed as a detector dog handler by the United States Customs Service to the Pasha car lot on Pier J in Long Beach, California. Humphrey had been trained to use his keen sense of smell to detect the odor of marijuana and hashish. The Pasha lot is a location near the Long Beach port at which cars imported into the United States are stored. It is privately owned property secured by a chain link fence. Without a search warrant and without any specific reason to suspect the presence of any drug contraband, Mr. McCauley had Humphrey sniff each of the 66 cars in the compound for the purpose of detecting any drug contraband present. At the 66th car, a 1970 Maserati, Humphrey “alerted” by scratching and biting at the underside of the car. Mr. McCauley immediately contacted Customs Inspector Officer Joe LaFata.
The two men and Humphrey again approached the Maserati and Humphrey again alerted. Officer LaFata at this point drilled one or two [31]one-eighth-inch holes into the frame of the car. Thereafter, he conducted a field test on a brown substance which adhered to the drill, obtaining a “positive” result for the substance tetrahydrocannibinol, which is ordinarily present in marijuana and hashish. The ampoule used to conduct the test was discarded. The vehicle was then transported to the public stores area of the Terminal Island Customs House, where the interior of the car was searched and, subsequently, a floor plate was removed from beneath the rear seat and eight pounds of hashish was exposed in a compartment.
No search warrant was ever issued or applied for. Defendant’s motion to suppress the evidence procured was denied.
These facts reveal that not one, but three searches occurred without the prior procurement of a search warrant. First, the olfactory excursion of Humphrey did, in my view, constitute a search which was exploratory in nature. In accord is People v. Evans (1977) 65 Cal.App.3d 924 [134 Cal.Rptr. 436], a case factually similar to the instant case. Federal agents in the Evans case, acting without antecedent information that marijuana was at a miniwarehouse location and without a search warrant used detector dogs to sniff out the location of marijuana. The court held that: “. . .such a search with canines conducted without some preknowledge or reasonably strong suspicion that contraband is to be found in a particular location is a constitutionally impermissible invasion of the suspects’ reasonable expectations of privacy and consequently a violation of the Fourth Amendment.” (At p. 933.) Similarly in People v. Williams (1975) 51 Cal.App.3d 346 [124 Cal.Rptr. 253], the court held that the "activities of two sheriffs at an airline terminal constituted an unreasonable, exploratory search. Acting without a search warrant and without notice or knowledge of the possible presence of narcotics the two sheriffs had the detector dog, Bourbon, sniff miscellaneous baggage at the baggage staging area where they had no permission to be. When the dog gave an alert indicating to them the presence of marijuana, they opened the baggage and then identified and arrested the owner. The court did not make clear, however, whether the impermissible conduct was the sniffing rather than the warrantless intrusion into the baggage without reasonable cause other than Bourbon.
The case of United States v. Solis (9th Cir. 1976) 536 F.2d 880, in which the court held that the use of detector dogs constituted a reasonable search is clearly distinguishable from the instant case. In Solis, [32]government agents used detector dogs Blue and Baron to sniff the air around the trailer. However, the officers were directed to this specific trailer by information to the effect that a white semitrailer with a white paper license plate parked at a specific gas station contained marijuana. The holding of the Court of Appeal that the use of the dogs in this situation was reasonable articulated recognition that the investigation was not indiscriminate but solely directed toward particular contraband. (At p. 882.) United States v. Bronstein (2d Cir. 1975) 521 F.2d 459, 461-463, cert. den. 424 U.S. 918, [47 L.Ed.2d 324, 96 S.Ct. 1121], United States v. Venema (10th Cir. 1977) 563 F.2d 1003, 1005, 1007, and United States v. Fulero (D.C. Cir. 1974) 498 F.2d 748, 749, likewise, were cases in which law enforcement officers acted upon specific prior information and concentrated upon a specific objective suspected of containing contraband. They were not exploratory searches as in the instant case.
The majority opinion relies in part upon the authority of United States v. Race (1st Cir. 1976) 529 F.2d 12, inasmuch as it was, unlike Bronstein, Venema and Fulero, a port of entry case. In Race, an expert dog handler using a detector dog made an exploratory search of 300 crates at the American Airlines warehouse located at Logan Airport. Subsequent to the dog’s alert at two crates, the agent inserted a knife into one of the crates and detected the odor of marijuana on the knife blade. The consignee of the crates, having identified himself, was approached regarding consent to search the crates, which he was held to have given. The search after consent uncoverd marijuana. The appellate court in Race specifically did not decide if the use of the knife was a prohibited search. "... Even assuming that [agent] Murphy violated the fourth amendment by inserting the knife into one of the crates, a question we do not decide, we do not think exclusion of the marijuana in the crates would be warranted.” (Italics added) (At p. 15.) The court reasoned that the search of the crates after consent was given by the consignee was not an exploitation of the original inspection and the consent “purged the primary taint” prohibited by Wong Sun v. United States (1963) 371 U.S. 471 [9 L.Ed.2d 441, 83 S.Ct. 407].
With the above cited authorities and their rationale in mind, it is clear that in the instant case the use by the United States Customs employees of the dogs to sniff the air surrounding the 1970 Maserati in order to ferret out the presence of drugs, constituted a search within the meaning of the Fourth Amendment. It is noted that a number of courts have disposed of the issue of dog sniffing activity without any serious [33]consideration of whether the use of dogs constitutes a search. (See, United States v. Race, supra, 529 F.2d 12; United States v. Fulero, supra, 498 F.2d 748; People v. Furman (1973) 30 Cal.App.3d 454 [106 Cal.Rptr. 366]; and People v. Lester (1980) 101 Cal.App.3d 613 [161 Cal.Rptr. 703].) For cases which have considered the issue and held canine sniffing is not a search, see United States v. Venema, supra, 563 F.2d 1003, United States v. Bronstein, supra, 521 F.2d 459, cert. den. 424 U.S. 918, and Doe v. Renfrow (N.D. Ind. 1979) 475 F.Supp. 1012 (involving the search of persons).
What, after all, is a search? A search has been defined as “a governmental intrusion into an area in which a person has a reasonable expectation of privacy.” (Terry v. Ohio (1968) 392 U.S. 1 [46 L.Ed.2d 659, 96 S.Ct. 612].) Indeed, the United States Supreme Court in Katz v. United States (1967) 389 U.S. 347 [19 L.Ed.2d 576, 88 S.Ct. 507], has established that the fundamental element protected by the Fourth Amendment is the reasonable expectation of privacy to which each person is entitled. (See also, Camara v. Municipal Court (1967) 387 U.S. 523, 528 [18 L.Ed.2d 930, 935, 87 S.Ct. 1727].)
In this case the customs officers utilized Humphrey as an exploratory probe in pursuit of their quest to penetrate and scrutinize an area concealed from human visual or olfactory detection. In the truest sense they were searchers. Both the dog and its handler were employed by United States customs to subject the air surrounding all of the vehicles to thorough inspection in order to detect and trace particularly identifiable molecules so as to discover, without specific prior reason to expect the presence of, certain articles of contraband.
In order that the expectations of privacy in the instant case be considered reduced to those of travelers whose baggage is subject to careful scrutiny at an airport or border port of entry, it was first essential to establish that the car lot upon which the vehicle involved herein was stored, was, in fact, a border area. Clearly, herein, without such showing that the probable cause requirements of the Fourth Amendment were relaxed, the use of the sensitive, finely trained nose of the dog was an intrusion upon the owner’s reasonable expectation of privacy and constituted the use of an “uninvited proboscis” to search, just as the use of an electronic monitoring device outside of a telephone booth was held in Katz to constitute a search by an uninvited electronic ear. (Katz v. United States, supra, 389 U.S. 347, at p. 352 [19 L.Ed.2d 576, at p. 582].)
[34]III
The second search occurred when holes were drilled in the frame of the Maserati. The majority views this act as an intrusion minimal in nature and, therefore, reasonable. The majority then postulate that the minimal intrusion of drilling holes resulting in a positive field test provided a reasonable basis upon which to conduct the more intrusive third search which followed by which the car was entered and floor plates removed. It cannot be reasonably argued that the act of drilling holes in the vehicle did not constitute a search within the contemplation of search and seizure protections of the federal and California Constitutions. (See Bielicki v. Superior Court (1962) 57 Cal.2d 602 [21 Cal.Rptr. 552, 371 P.2d 288] (uncapping a pipe to view a toilet); People v. Ruiz (1956) 146 Cal.App.2d 630 [304 P.2d 175] (drilling a hole); People v. Regalado (1964) 224 Cal.App.2d 586 [36 Cal.Rptr. 795] (boring holes in hotel doors); and Britt v. Superior Court (1962) 58 Cal.2d 469 [24 Cal.Rptr. 849, 374 P.2d 817] (vents into toilets).) How can it ever make sense that a search which is prohibited is made permissible by a “minimál intrusion” which uncovers contraband? The minimal intrusion itself constitutes an invasion of the sphere of privacy expected to be immune from such invasion.
IV
The contention that a customs agent needs no warrant and no probable cause to search at a border site or its functional equivalent is correct. The implication that a general, routine exploratory search is permissible, however, is grossly erroneous. The authority for customs seizures is found in section 482 of title 19 of the United States Code3 (United States v. Diamond (9th Cir. 1973) 471 F.2d 771, cert. den. 412 U.S. 932 [37 L.Ed.2d 161, 93 S.Ct. 2751]), and requires that customs agents must be possessed of objective facts which form a basis for a reasonable suspicion that customs laws are being violated before they may properly make a search. (United States v. Ramsey, supra, 431 U.S. 606; United States v. Diemler (5th Cir. 1974) 498 F.2d 1070; and United States v. Daly (5th Cir. 1974) 493 F.2d 395.) The reasonable suspicion must not be merely of any violation, but must be of a customs or immigration violation. (United States v. Diemler, supra; United States v. McDaniel, supra, 463 F.2d 129, 133, cert. den. 413 U.S. 919.)
[35]In summary, the searches in the instant case occurred at a location which has not been shown by evidence to qualify for border status or its functional equivalent, therefore it was necessary that the customs employees meet the standards , of reasonableness mandated by the Fourth Amendment. Unless exigent circumstances were present it was mandated that a search warrant be obtained prior to any search. (Chambers v. Maroney (1970) 399 U.S. 42 [26 L.Ed.2d 419, 90 S.Ct. 1975].) The record in this case reflects that the Maserati was on property that was fenced and not generally open to public access. The vehicle could not, therefore, have been spirited away before the customs officers could obtain a warrant. This situation is drastically different from a vehicle on a public highway and from airport situations where people and baggage . are constantly on the move.
The prerequisite of a judicial search warrant has been established to assure that a dispassionate determination is made regarding whether there is sufficient evidence to justify a search, and to define the scope of the search. Intrusions without a warrant which constitute a search such as occurred here are illegal unless they fall within certain narrowly defined exceptions. One of the exceptions includes searches made upon reasonable cause where the circumstances are such that the procurement of a search warrant would be impractical. The prosecution has made no such showing and has relied solely upon the assertion that this search fell within the border search exception to the Fourth Amendment requirements. Inasmuch as Mr. McCauley was randomly seeking to discover any contraband which may have been present and since his attention was not focused upon any particular vehicle for any specific reason, the warrantless search was unreasonable and therefore illegal. All evidence procured by the prosecution was the direct fruit of the knowledge gained by reason of that illegality and should, therefore, have been suppressed. (Wong Sun v. United States, supra, 371 U.S. 471, 484 [9 L.Ed.2d 441, 453]; People v. Edwards (1969) 71 Cal.2d 1096 [80 Cal.Rptr. 633, 458 P.2d 713].)
[36]Although we must be zealous in securing our borders against harmful importations, we must be equally zealous in protecting against harmful internal incursions upon Fourth Amendment principles. The case of Doe v. Renfrow, supra, 475 F.Supp. 1012, in which students in school were subjected to the promiscuous search of a sniffing dog walking up aisles and the nude search of a student based upon a dog’s continued alert, is graphic example of the excesses against which we must guard.
The judgment should be reversed with directions to dismiss the action.
Assigned by the Chairperson of the Judicial Council.
United States Statutes, chapter 5, 1 Statutes at Large 29, 43 (1789).
See Almeida-Sanchez v. United States, supra, 413 U.S. 266, 273 [37 L.Ed.2d 596, 602-603]; United States v. Anderson (9th Cir. 1974) 509 F.2d 724; United States v. Ortiz (1975) 422 U.S. 891 [45 L.Ed.2d 623, 95 S.Ct. 2585]; United States v. Alvarez-Gonzalez (5th Cir. 1976) 542 F.2d 226.
Section 482 provides: “Any of the officers or persons authorized to board or search vessels may stop, search, and examine, as well without as within their respective dis[35]tricts, any vehicle, beast, or person, on which or whom he or they shall suspect there is merchandise which is subject to duty, or shall have been introduced into the United States in any manner contrary to law, whether by the person in possession or charge, or bjr, in, or upon such vehicle or beast, or otherwise, and to search any trunk or envelope, wherever found, in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law; and if any such officer or other person so authorized shall find any merchandise on or about any such vehicle, beast, or person, or in any such trunk or envelope, which he shall have reasonable cause to believe is subject to duty, or to have been unlawfully introduced into the United States, whether by the person in possession or charge, or by, in, or upon such vehicle, beast, or otherwise, he shall seize and secure the same for trial.”