U.S. v. Velasco, (10th Cir. 2003)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 02-2189

v.

(D. New Mexico)

MARIANO VELASCO,



Defendant-Appellant.

(D.C. No. CR-01-1723-BB)

ORDER AND JUDGMENT
name="txt*">(*)

Before EBEL, HENRY,

and HARTZ, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties' request for a decision on the briefs without

oral argument. See Fed. R. App. P. 34(f). The case therefore is ordered

submitted without oral argument.

A federal grand jury charged Mariano Velasco with two counts: (1)

possession with intent to distribute 100 kilograms or more of marijuana, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2, and (2)

conspiracy to possess with intent to distribute 100 kilograms or more of

marijuana, in violation of 21 U.S.C. §§ 841(a)(1); (b)(1)(B), and 846. Mr.

Velasco entered a conditional guilty plea, reserving the right to appeal the district

court's denial of his suppression motion. The district court sentenced Mr.

Velasco to concurrent terms of sixty months' imprisonment, followed by four

years' supervised release. Mr. Velasco appeals the district court's denial of his

suppression motion. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I. FACTUAL BACKGROUND

At 10:50 a.m. on September 24, 2001, Mr. Velasco, accompanied by

Hector Rios-Gutierrez, entered the United States Border Patrol checkpoint on

Highway 54 south of Alamogordo. The check point is approximately 65 miles

from the United States­Mexico border. Mr. Velasco was driving a Ford

Excursion.

Mr. Velasco told Border Patrol Agent Domnic Bowcutt that he was a

citizen of the United States. Agent Bowcutt inquired as to Mr. Rios's

citizenship, and Mr. Rios handed Agent Bowcutt an I-94 permit. Agent Bowcutt

then asked for a passport or border crossing card from Mr. Rios, who explained,

in Spanish, that he had been robbed and had lost everything.

Agent Bowcutt reviewed the I-94 permit and believed it to be fraudulent.

He then inquired about the travelers' itinerary, and Mr. Rios replied that they

were going to visit an ailing aunt in Alamogordo. After Agent Bowcutt asked

about Mr. Rios's aunt's address, Mr. Rios responded that he did not know the

address, adding that they were meeting her at a gas station. Mr. Velasco

explained that he was just giving Mr. Rios a ride to meet his aunt.

Agent Bowcutt was suspicious about the story and requested that the two

wait in the "secondary" inspection area while he made some inquiries. Another

agent checked the validity of Mr. Rios's I-94 card, and learned that Mr. Rios had

actually been issued an I-586 border crossing card, and that Mr. Rios was beyond

the 25 miles boundary authorized by that card.

Agent Bowcutt returned the I-94 card to Mr. Rios and asked about the

ownership of the vehicle. Mr. Velasco handed him a receipt for the purchase of

the car. Agent Bowcutt testified that he noticed Mr. Velasco's hand trembling

and explained that he thought it somewhat suspicious to have a receipt rather

than an insurance card and registration.

During this time, another agent checked the undercarriage of the car, and

he noted that the gas tank appeared to have been altered. Agent Bowcutt asked

Mr. Velasco if the agents could perform a canine inspection, and Mr. Velasco

agreed, exiting the vehicle as requested by the agent. The canine sniff resulted in

a positive alert to the undercarriage near the gas tank. The agents removed the

gas tank and discovered marijuana inside it.

After the grand jury returned the indictment, Mr. Velasco moved to

suppress the marijuana discovered by the border patrol agents. The district court

concluded that there was ample evidence to support Mr. Velasco's detention and

denied his motion to suppress.

II. DISCUSSION

On appeal, Mr. Velasco argues that the border patrol agents lacked

reasonable suspicion to justify referring him to the secondary inspection area and

detaining him there. He maintains that Agent Bowcutt's concerns about Mr.

Rios's identity and citizenship established only reasonable suspicion of Mr. Rios.

A. Standard of Review

"In reviewing a denial of a motion to suppress, the trial court's findings of

fact must be accepted by this court unless clearly erroneous." United States v.

Preciado, 966 F.2d 596, 597 (10th Cir. 1992) (internal quotation marks and

citation omitted). Further, "we view the evidence in the light most favorable to

the government and [to] the district court's findings." United States v. Anderson,

114 F.3d 1059, 1063 (10th Cir. 1997). However, the district court's

determinations of reasonable suspicion and probable cause are reviewed de novo

on appeal. Ornelas v. United States, 517 U.S. 690 , 699 (1996).

B. Analysis

1. Initial Detention

"During a routine fixed-checkpoint stop, border patrol agents may question

individuals in the absence of individualized suspicion about their citizenship and

immigration status and request documentation." United States v. Massie, 65 F.3d

843, 847-48 (10th Cir. 1995). Furthermore, "[a]gents may briefly question

individuals concerning such things as vehicle ownership, cargo, destination, and

travel plans, as long as such questions are reasonably related to the agent's duty

to prevent the unauthorized entry of individuals into this country and to prevent

the smuggling of contraband." Id. at 848 (citation and quotations omitted).

Thus, the first stage of the encounter must remain brief, unintrusive, and must

"not exceed the scope of a permissible routine checkpoint stop." Id. at 849.

Applying these standards, we conclude that the "brief stop" at the highway

roadblock was a "reasonable intrusion into the lives of [Mr. Velasco and Mr.

Rios]." United States v. Galindo-Gonzales, 142 F.3d 1217, 1221 (10th Cir.

1998); see also United States v. Morales-Zamora, 914 F.2d 200, 202-03 (10th

Cir. 1990) (citing cases). Agent Bowcutt's initial questioning concerned

citizenship, immigrations status, and travel plans. His follow-up question about

Mr. Rios's aunt's address was a reasonable attempt to obtain information relevant

to these matters.

2. The referral to the secondary inspection area

Mr. Velasco challenges his detention at the secondary inspection area,

arguing that Agent Bowcutt's initial questions generated suspicion of only Mr.

Rios. As to this issue, the district court determined that, under the totality of the

circumstances, the border agent's observation of "suspicious circumstances . . .

justified the continued detention of both of the defendants." Aplt's App. at 26.

There is no question that "border patrol agents may question individuals

regarding suspicious circumstances, in addition to citizenship matters, when

those individuals are stopped at permanent checkpoints." Preciado, 966 F.2d at

598. "A suspicious circumstance is not equivalent to the reasonable suspicion

standard." United States v. Rascon-Ortiz, 994 F.2d 749, 753 n.6 (10th Cir. 1993)

(internal quotation marks omitted). Furthermore,

[t]he presence of a suspicious circumstance allows a

border patrol agent to ask a few additional questions

concerning the suspicion during the course of a routine

customs inspection. Since the additional questions do not

add significantly to the length or intrusiveness of the

detention, the more rigid Fourth Amendment requirements

of probable cause or reasonable suspicion are not required.

Id.

Border patrol agents are entitled to assess the facts in the light of their

experience, and, as a result, we have recognized that they "may perceive meaning

in actions that appear innocuous to the untrained observer." United States v.

Cantu, 87 F.3d 111, 1121 (citing Brown v. Texas, 443 U.S. 47, 52 & n. 2

(1979)).

Here, the district court properly concluded that Agent Bowcutt may have found

Mr. Rios's answers to his questions unsatisfactory, warranting further inquiry

regarding Mr. Rios's immigration status.

3. The continued detention and search

Next, Mr. Velasco challenges his continued detention at the secondary

inspection area. "Further detention of an individual beyond the scope of a routine

checkpoint stop must be based upon reasonable suspicion, consent, or probable

cause." Massie, 65 F.3d at 848; see also Preciado, 966 F.2d at 598

(stating that

"even [w]hen the questions asked at the primary inspection area satisfy all

concerns about a person's citizenship or immigration status, an agent may still

direct a vehicle to a secondary inspection area and further question the occupants

on the basis of reasonable suspicion that a crime has been committed").

The Supreme Court has explained that this reasonable suspicion standard

reflects a balancing of "the importance of the governmental interest at stake, the

minimal intrusion of a brief stop, and the absence of practical alternatives for

policing the border." United States v. Brignoni-Ponce, 422 U.S. 873, 881 (1975).

Reasonable suspicion may be based on "a series of acts, each of them perhaps

innocent in itself, but which taken together warranted further investigation."

United States v. Lopez-Martinez, 25 F.3d 1481, 1484 (10th Cir. 1994) (quoting

Terry v. Ohio, 392 U.S. 1, 22 (1968)). Although "the necessary level of suspicion

is considerably less than proof of wrongdoing by a preponderance of the

evidence, the Fourth Amendment requires some minimal level of objective

justification." Cantu, 87 F.3d at 1121 (10th Cir. 1996) (internal quotation

marks

omitted). The ultimate assessment of reasonable suspicion must be made in light

of the experience of the border agent and based on the totality of the

circumstances. See United States v. Gandara-Salinas, 327 F.3d 1127, 1130 (10th

Cir. 2003).

Here, the record establishes that the border patrol agents possessed

reasonable suspicion that Mr. Velasco had committed an immigration violation

and were therefore authorized to detain him at the secondary inspection area and

further question him there. In particular, Mr. Velasco's passenger (Mr. Rios) had

unquestionably violated the bounds of his border crossing permit and thus could

have been taken into custody. This, combined with (1) the possibly fraudulent I-94 permit,
href="#N_1_a" name="txt1a">(1) (2) the story about meeting the ailing aunt at

a gas station, (3) Mr.

Rios's contention that he had lost all identification because of a recent robbery;

(3) Mr. Velasco's nervousness in handing over the receipt for the purchase of the

vehicle, and (5) the presentation of a receipt for the sale of the vehicle (rather

than the vehicle's insurance and registration) justified Agent Bowcutt's decision

to continue the detention.

We are not persuaded by Mr. Velasco's contention that the border

agent's

observations supported only the detention of Mr. Rios. Unquestionably, the

suspicious behavior of a passenger is a factor that an agent may consider in

deciding whether to detain the driver. See, e.g., United States v. Kopp, 45 F.3d

1450, 1453-54 (10th Cir. 1995) (considering the behavior of a passenger in the

reasonable suspicion calculus). Moreover, we have noted above, some of Agent

Bowcutt's observations concerned Mr. Velasco himself (e.g., Mr. Velasco's

nervousness and Mr. Velasco's handing Agent Bowcutt a receipt rather than proof

of insurance and registration).

4. The canine inspection and subsequent search

Finally, Mr. Velasco also challenges the canine inspection and subsequent

search of his vehicle. He argues that "[w]hatever 'consent' [he] may have given

to these actions, it was incurably tainted by the illegal detention." Aplt's Br. at 8.

In light of our conclusion that Mr. Velasco's detention was lawful, this argument

fails. We further note that, aside from his unpersuasive challenges to his

detention, Mr. Velasco identifies no evidence in the record undermining the

validity of the consent.

III. CONCLUSION

Accordingly, we AFFIRM the district court's denial of Mr. Velasco's

motion to suppress.

Entered for the Court,

Robert H. Henry

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not binding

precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1. The district court noted that during the

course of questioning, Mr. Rios

admitted that the I-94 permit was fake.

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