                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                 No. 04-50497
                Plaintiff-Appellee,
               v.                           D.C. No.
                                          CR-02-00536-IEG
MANUEL FLORES-MONTANO,
                                             OPINION
             Defendant-Appellant.
                                      
       Appeal from the United States District Court
          for the Southern District of California
       Irma E. Gonzalez, District Judge, Presiding

                  Argued and Submitted
           June 10, 2005—Pasadena, California

                 Filed September 14, 2005

     Before: Betty B. Fletcher, Pamela Ann Rymer, and
            Raymond C. Fisher, Circuit Judges.

                    Per Curiam Opinion




                           13241
             UNITED STATES v. FLORES-MONTANO         13243


                       COUNSEL

Benjamin L. Coleman, Esquire, San Diego California, for the
appellant.

Mark R. Rehe, Assistant United States Attorney, San Diego,
California, for the appellee.
13244            UNITED STATES v. FLORES-MONTANO
                              OPINION

PER CURIAM:

   Appellant Manuel Flores-Montano appeals from the denial
of his motion to suppress evidence and the resulting
conditional-plea conviction for “illegal importation of mer-
chandise” after border inspectors found thirty-seven kilo-
grams of marijuana in the gas tank of his vehicle during a
search of Flores-Montano’s vehicle as he was at the border
attempting to enter the country. Flores-Montano contends that
inspectors unlawfully searched his gas tank in violation of 19
U.S.C. § 482, which he contends requires some “subjective”
or “good faith” suspicion prior to conducting a search. We
hold that 19 U.S.C. § 1581(a), not § 482, authorizes and gov-
erns vehicle searches at the border. Because § 1581(a) con-
tains no suspicion requirement, we affirm the conviction.

                                    I.

   On February 12, 2002, appellant Manuel Flores-Montano
drove a Ford Taurus station wagon to the United States border
at the Otay Mesa Port of Entry in Southern California. The
border inspector noticed that Flores-Montano avoided eye
contact during routine questioning, and that his hand was
shaking when he produced identification. The inspector then
tapped on the vehicle’s gas tank and noted that it sounded
solid. A narcotics-sniffing canine was then summoned, and
the dog alerted on the vehicle.1 At that point, Flores-Montano
was escorted to the security office and his vehicle was taken
to secondary inspection.
  1
   Just as in the original proceedings, the government does not rely on
these facts — the observed nervousness, the solid sound of the gas tank,
and the canine sniff — that tend to support a reasonable suspicion to
believe that Flores-Montano was involved in criminal activity. Rather, the
government contends that no suspicion is needed to remove a gas tank,
even if it causes minor damage to the tank such as small dents, scratches,
and removal of the adhesive “bondo.”
              UNITED STATES v. FLORES-MONTANO            13245
   Within twenty to thirty minutes, a mechanic arrived and
removed the gas tank. The car was raised in the air on a lift,
and the mechanic loosened bolts and straps on the undercar-
riage of the car and removed some hoses and electrical con-
nections so that the gas tank could then be lowered. This
procedure took approximately ten to fifteen minutes. Once the
tank had been removed, the inspector hammered off some
adhesive “bondo” that had been applied over an access plate.
The access plate was then removed, and thirty-seven kilo-
grams of marijuana were found wrapped in cellophane and
tape. The removal of the adhesive “bondo” and access plate
took another ten to fifteen minutes. None of the procedures
caused any significant damage to the gas tank or vehicle; the
government concedes that the tank might have been scratched
or slightly dented, but asserts that all vehicle components
could have been replaced without any perceptible damage.

   Flores-Montano was originally charged with narcotics
importation. When the government expressly declined to rely
on the dog sniff and other facts to justify its search, Flores-
Montano moved to suppress the evidence as having been
seized during a search unsupported by reasonable suspicion in
violation of the Fourth Amendment. The district court granted
the motion and suppressed the evidence. On appeal we
affirmed the suppression. The Supreme Court reversed, hold-
ing that no suspicion was required to perform a gas tank
search at the border. United States v. Flores-Montano, 541
U.S. 149 (2004).

   On remand to the district court, Flores-Montano again
moved to suppress, arguing that the search was one involving
“destructive force,” which must be supported by a reasonable
suspicion of unlawful activity. The district court denied the
motion, and Flores-Montano again entered a conditional
guilty plea and appealed the denial of the suppression motion.
In the present appeal, Flores-Montano abandons his Constitu-
tional “destructive force” argument, and advances for the first
time that 19 U.S.C. § 482 requires that border inspectors have
13246           UNITED STATES v. FLORES-MONTANO
some “subjective” or “good faith” suspicion of wrongdoing in
order to carry out a search that is at least minimally damaging.
We have jurisdiction over this appeal pursuant to 28 U.S.C.
§ 1291, and we affirm.

                                  II.

   [1] As an initial matter, the government argues that Flores-
Montano’s statutory claim for relief has been waived, as it
was never raised before the district court. While issues not
raised to the district court normally are deemed waived, we
have recognized three narrow exceptions to this general rule.
United States v. Robertson, 52 F.3d 789, 791 (9th Cir. 1994).
Specifically, we may review newly presented issues:

      [I]f (1) there are “exceptional circumstances” why
      the issue was not raised in the trial court, (2) the new
      issue arises while the appeal is pending because of
      a change in the law, or (3) the issue presented is
      purely one of law and the opposing party will suffer
      no prejudice as a result of the failure to raise the
      issue in the trial court. Further exception may be
      made when plain error has occurred and an injustice
      might otherwise result.

Id. (quoting United States v. Flores-Payon, 942 F.2d 556, 558
(9th Cir. 1991) (internal quotations omitted)).

   [2] This case falls squarely within the third exception. We
conclude that the “the issue presented is purely one of law and
the [government] will suffer no prejudice as a result of the
failure to raise the issue in the trial court.”2 Id. (internal quota-
  2
   Appellant argues that his newly-presented statutory basis for arguing
that the gas tank search was unlawful constitutes a new argument, not a
new claim, and that arguments are not deemed waived. See United States
v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004) (holding that a
new argument as to why prior conviction was not an aggravated felony for
                 UNITED STATES v. FLORES-MONTANO                   13247
tions omitted). We therefore exercise our discretion to review
Flores-Montano’s assertion that there is a federal statutory
requirement that border agents have some modicum of suspi-
cion before conducting a minimally destructive search.

                                   III.

  Flores-Montano argues that both 19 U.S.C. § 482 and 19
U.S.C. § 1581(a) govern border searches, and that § 482
requires a border inspector to have some “subjective” or
“good faith” suspicion in order to conduct a destructive
search, even where the damage to property is minimal.

  [3] Section 482 reads in full:

     Search of vehicle and persons.

     (a) Any of the officers or persons authorized to
     board or search vessels may stop, search, and exam-
     ine, as well without as within their respective dis-
     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 intro-
     duced into the United States in any manner contrary

deportation purposes was not waived when argued for first time on
appeal). We decline to reach this issue, and need not determine whether
Flores-Montano raises a new claim or merely a new argument. We like-
wise do not address the government’s argument that under Federal Rule
of Criminal Procedure 12(b)(3)(C), new grounds for suppression are
waived if not raised in a suppression motion “before trial.” See United
States v. Murillo, 288 F.3d 1126, 1135 (9th Cir. 2002) (holding that
ground for suppression not included in pre-trial motion to suppress was
waived); United States v. Wright, 215 F.3d 1020, 1026 (9th Cir. 2000)
(“failure to bring a timely suppression motion constitutes a waiver of the
issue”); United States v. Restrepo-Rua, 815 F.2d 1327, 1329 (9th Cir.
1987) (per curiam) (“Just as a failure to file a timely motion to suppress
evidence constitutes a waiver, so too does a failure to raise a particular
ground in support of a motion to suppress.”).
13248         UNITED STATES v. FLORES-MONTANO
    to law, whether by the person in possession or
    charge, or by, 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 merchan-
    dise 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.

    (b) Any officer or employee of the United States
    conducting a search of a person pursuant to subsec-
    tion (a) of this section shall not be held liable for any
    civil damages as a result of such search if the officer
    or employee performed the search in good faith and
    used reasonable means while effectuating such
    search.

19 U.S.C. § 482 (emphasis added). Section 1581(a) reads:

    Boarding vessels.

    (a) Customs officers.

    Any officer of the customs may at any time go on
    board of any vessel or vehicle at any place in the
    United States or within the customs waters or, as he
    may be authorized, within a customs-enforcement
    area established under the Anti-Smuggling Act [19
    U.S.C.A. § 1701 et seq.], or at any other authorized
    place, without as well as within his district, and
    examine the manifest and other documents and
                 UNITED STATES v. FLORES-MONTANO                    13249
      papers and examine, inspect, and search the vessel or
      vehicle and every part thereof and any person, trunk,
      package, or cargo on board, and to this end may hail
      and stop such vessel or vehicle, and use all necessary
      force to compel compliance.

19 U.S.C. § 1581(a). The obvious difference between the two
statutory provisions is that the former contains language that
requires an officer to have “reasonable cause to suspect” that
an item to be searched was improperly imported into the
country, while the latter contains no such language. As
recently amended, the former also shields a searching officer
from liability so long as the search was performed in “good
faith and used reasonable means.” Flores-Montano asserts that
both sections apply to border searches such as the one con-
ducted in the instant case, and that the border agents therefore
needed “reasonable cause” or a “good faith” belief that
Flores-Montano was involved in unlawful activity before
searching his vehicle. He relies on United States v. Sandoval
Vargas, 854 F.2d 1132, 1134-40 (9th Cir. 1988) (concluding
that both provisions apply to searches of vehicles at the bor-
der).

   [4] In United States v. Taghizadeh, 41 F.3d 1263 (9th Cir.
1994) (en banc), our unanimous en banc court held that 19
U.S.C. § 1582,3 rather than § 482, governs searches of “arriv-
ing baggage or mail.” Id. at 1266. In contrast, § 482 only
applies to “baggage or mail or other items which have already
‘arrived’ but which are suspected of having been imported
contrary to law.” Id. We based this conclusion on the text of
§ 482, which authorizes searches of trunks and envelopes
“wherever found,” so long as there is reasonable cause to sus-
  3
   19 U.S.C. § 1582 authorizes the Secretary of the Treasury to “prescribe
regulations for the search of persons and baggage” and provides that “all
persons coming into the United States from foreign countries shall be lia-
ble to detention and search by authorized officers or agents of the Govern-
ment under such regulations.”
13250             UNITED STATES v. FLORES-MONTANO
pect that they contain “merchandise which was imported con-
trary to law.” Id. (emphasis added). This language indicates
§ 482’s applicability to searches of items already in the inte-
rior. The distinction between the two statutes is carried over
into the regulations: § 482’s reasonable-cause-to-suspect
requirement is not incorporated into the regulations governing
customs inspections of packages entering the country. See 19
C.F.R. § 145.2.4 The en banc panel specifically overruled
DeVries v. Acree, 565 F.2d 577 (9th Cir. 1977), in favor of
the opinions of several circuits that had uniformly held that
“customs officials have unlimited discretion to search incom-
ing international packages.” 41 F.3d at 1266 (citing United
States v. Glasser, 750 F.2d 1197, 1200-05 (3d Cir. 1984);
United States v. Pringle, 576 F.2d 1114, 1116 (5th Cir. 1978);
United States v. Emery, 541 F.2d 887, 889 (1st Cir. 1976);
United States v. Odland, 502 F.2d 148, 150 (7th Cir. 1974)).

   Before Taghizadeh was decided, however, we had deter-
mined that both § 482 and § 1581 apply to searches of vehi-
cles at the border, and that § 482’s requirement of “reasonable
cause to suspect” must govern inspections conducted at the
border as well as in the interior.5 Sandoval Vargas, 854 F.2d
at 1136-38 & 1138 n.13 (citing United States v. Soto-Soto,
598 F.2d 545 (9th Cir. 1979)). We also held that § 482
requires only “subjective suspicion,” which is supplied
“whenever the person or vehicle being searched has just
entered the United States from outside.” Id. at 1139. “[T]he
  4
     The court noted, however, that 19 C.F.R. § 145.3 may provide some
additional protections to letter mail entering the country, in contrast to the
package that was at issue in that case. Taghizadeh, 41 F.3d at 1266.
   5
     In reaching this conclusion, we specifically rejected the Third Circuit’s
approach in Glasser, 750 F.2d at 1204, where the court had determined
that § 482 was a specialized provision that governs smuggled goods
already in the United States. Sandoval Vargas, 854 F.2d at 1138 n.13. In
contrast, our en banc decision in Taghizadeh cited Glasser with approval.
41 F.3d at 1266.
                 UNITED STATES v. FLORES-MONTANO                     13251
fact of entry is sufficient, in itself, to create subjective suspi-
cion within the meaning of section 482.”6 Id.

   [5] By our decision in Taghizadeh, we clearly rejected any
notion that § 482 applies to searches conducted at the border.
41 F.3d at 1266. As the application of that statute is limited
to inspection of items that have already arrived in the country,
the governing statute is 19 U.S.C. § 1581(a), which contains
no suspicion requirement. That Taghizadeh involved inspec-
tion of incoming packages under 19 U.S.C. § 1582 is of no
consequence to our decision here. What is important is that
Taghizadeh’s rejection of § 482 as governing border searches
completely undermined the central holding in Sandoval Var-
gas.7 Relying on Taghizadeh, we hold that § 482 does not
apply to vehicle searches at the border.8 Section 1581(a) is the
  6
     It is difficult to understand how Flores-Montano could succeed even if
Sandoval Vargas were still good law. Under Sandoval Vargas, any suspi-
cion required by § 482 would have been supplied by the fact that Flores-
Montano was seeking entry into the country from the outside. To the
extent Flores-Montano relies on some distinction between “routine” and
“non-routine” border searches, we regard such a distinction severely
undermined if not completely overruled in the context of property
searches. See United States v. Flores-Montano, 541 U.S. 149, 152 (2004)
(“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.”). Nothing in the text of § 482 indicates
that the routine/non-routine analysis should be reinvigorated in the statu-
tory context, particularly when it has been so soundly rejected in the Con-
stitutional context.
   7
     We recognize that absent the abrogating effect of Taghizadeh, we
would be bound by Sandoval Vargas. One panel cannot overrule another,
but may “reject the prior opinion” where the prior opinion is irreconcilable
with “intervening higher authority.” Overstreet v. United Bhd. of Carpen-
ters and Joiners of Am., Local Union No. 1506, 409 F.3d 1199, 1205 n.8
(9th Cir. 2005). “Intervening higher authority” includes intervening en
banc decisions. Id. (citing Cerrato v. San Francisco Cmty. College Dist.,
26 F.3d 968, 972 n.15 (9th Cir. 1994)).
   8
     This holding is further supported by the Supreme Court’s own refer-
ence to § 1581(a) as “[t]he modern statute that authorized the search in
this case”. Flores-Montano, 541 U.S. at 153; see also id. at 153 n.1 (quot-
ing text of § 1581(a) in full).
13252            UNITED STATES v. FLORES-MONTANO
governing statute, and it contains no requirement that officers
have any degree of suspicion for searches of vehicles at the
border. The suspicionless search of Flores-Montano’s gas
tank did not constitute a statutory violation.9

   Finally, Flores-Montano further argues that a recent amend-
ment to § 482, enacted after our decision in Taghizadeh, dem-
onstrates that Congress intended for § 482 to apply to border
searches. See Trade Act of 2002, Pub. L. No. 107-210, § 341,
116 Stat. 933, 980. In 2002, § 482(b) was added, limiting lia-
bility of officers who conduct searches “in good faith [using]
reasonable means.” Nothing in the text of this amendment,
which refers simply to searches conducted “pursuant to sub-
section (a),” indicates that the subsection or § 482 on the
whole was to apply to border searches. Nevertheless, Flores-
Montano argues that an historical note to the amendment,
which requires posting of a racial profiling policy at all border
facilities,10 is evidence of Congress’ intent to make § 482
applicable to border searches. Nothing in the legislative his-
tory of the statute expressly indicates this intent, nor is there
any mention of our seemingly contradictory opinion in Tagh-
izadeh. We decline to infer such broad intent from a require-
ment to post a policy at border facilities, in particular where
the text of the statutory amendment itself gives no indication
of such intent. If Congress wishes § 482 to be the statute gov-
erning border searches of vehicles, it may say so unequivo-
cally. Until that time, we are bound by our precedent in
Taghizadeh.

                                   IV.

   [6] In sum, we hold that 19 U.S.C. § 1581(a) governs vehi-
  9
    We therefore need not determine whether a statutory violation would
require exclusion of the evidence seized as would normally be the case
where searches are conducted in violation of the Fourth Amendment.
   10
      See 19 U.S.C. § 482, Hist. and Stat. Notes (“Requirement to Post Pol-
icy and Procedures for Searches of Passengers”).
              UNITED STATES v. FLORES-MONTANO         13253
cle searches at the border. Because that statute contains no
requirement that an officer have suspicion of wrongdoing in
order to conduct such a search, we conclude that the search
of Flores-Montano’s gas tank did not violate the statute. We
therefore affirm the conviction.

  AFFIRMED.
