2 F.3d 1485 (10th Cir. 1993), 92-2220, United States v. Maestas

Docket Nº:92-2220.
Citation:2 F.3d 1485
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Carmen Maria MAESTAS, Defendant-Appellant.
Case Date:August 06, 1993
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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2 F.3d 1485 (10th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,


Carmen Maria MAESTAS, Defendant-Appellant.

No. 92-2220.

United States Court of Appeals, Tenth Circuit

August 6, 1993

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R. Morgan Lyman, Asst. Federal Public Defender, Las Cruces, NM, for defendant/appellant.

Charles L. Barth, Asst. U.S. Atty., and Don J. Svet, U.S. Atty., Las Cruces, NM, for plaintiff/appellee.

Before SEYMOUR, ANDERSON, and EBEL, Circuit Judges. [*]

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EBEL, Circuit Judge.

The defendant-appellant, Carmen Maestas, appeals the district court's denial of her motion to suppress evidence of marijuana found in her car at a fixed Border Patrol checkpoint in New Mexico as well as certain incriminating statements she made while at the checkpoint. She contends that she was subject to a pretextual seizure when she passed through the checkpoint and that this evidence was therefore excludable as the tainted "fruit" of an illegal seizure. We hold that Maestas was not illegally seized and therefore affirm the denial of her motion to suppress.


On December 17, 1991, Bernie Velasquez, a roving Border Patrol agent, observed Carmen Maestas sitting in a pink Buick parked on the north side of Interstate 25 near mile marker 11 in New Mexico. Agent Velasquez and his partner, Agent Woodside, traveled north for about seven miles before seeing a dark-colored GMC pickup truck backing up in the southbound lane against traffic. About fifteen to twenty minutes later, the agents turned and went south on the interstate, and saw the truck and the Buick traveling near one another going north on the interstate. Agent Velasquez testified that they suspected that the two vehicles were traveling together to "scout" the Border Patrol checkpoints--that is, to see if they were open and whether a dog was working.

Upon spotting the vehicles together, the agents turned and followed them. After following them for a few miles, the agents observed the Buick pass the truck and speed up until it was out of sight. The truck did not follow or chase the Buick. The roving patrol agents radioed agents at a fixed Border Patrol checkstation in Truth or Consequences, New Mexico, about what they had observed.

Another roving patrol officer, Agent Garcia, subsequently informed Agents Velasquez and Woodside that he had seen the Buick take the Williamsburg, New Mexico exit. While parked across the street from a store just off the Williamsburg exit, Agent Garcia saw another car, a Pontiac, at the store with the Buick, and later saw the dark pickup truck pull into the same parking lot. Agent Garcia observed Maestas, who was driving the Buick, speak with the passenger of the truck as she was leaving the store, although he admitted that he did not know what either said. Agent Garcia then drove to the fixed checkpoint at Truth or Consequences. Because Agents Velasquez and Woodside were suspicious of the three vehicles, they too drove to the fixed checkpoint and waited there until Maestas appeared.

Agent Michael Maroney was working in the primary inspection area at the fixed checkpoint on the day Maestas passed through. When Maestas arrived at the primary inspection area, Agent Maroney asked Maestas about her citizenship. After she responded that she was a United States citizen, Agent Maroney asked her where she was coming from and whether she was traveling with any other vehicles. She stated that she was coming from Dona Ana, New Mexico, and that she was not traveling with anyone. Agent Maroney felt that Maestas was being evasive, given that she stated she was traveling alone, would not make eye contact with him, repeated his questions before answering them, and acted nervous. Agent Maroney asked whether she owned the car, and Maestas answered that it was her husband's. However, the car registration Maestas produced showed the owner to be Manuel Serna, who had a different surname and address than those shown on Maestas' New Mexico driver's license. Agent Maroney testified that after observing Maestas' behavior, he asked her if she would consent to a search of her vehicle. She responded "okay," and he asked her to pull over to the secondary checkpoint. Maestas was in the primary inspection area for at most two minutes.

Agent Maroney then waited while Agent Velasquez stopped and questioned the next car, the Pontiac that was reportedly traveling with Maestas. He overheard Agent Velasquez

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question the car's occupants about their citizenship and whether they were traveling with the Buick. The occupants stated that they were United States citizens traveling with the woman in front of them. Agent Maroney then proceeded to the secondary inspection area, where he again asked for and received permission from Maestas to search the pink Buick.

Upon request, Maestas opened the trunk of the car, and Agent Maroney looked into it. He then asked if Maestas would consent to a canine inspection of her car. She consented. The dog alerted to the trunk of the Buick driven by Maestas, although it did not alert to the Pontiac or the pickup truck. Maestas was in the secondary inspection area for at most five minutes before the dog alerted to the Buick. About one pound of marijuana was found in a suitcase inside a brown cardboard box in the Buick's trunk. After being advised of her rights, Maestas stated that the marijuana was hers.

On December 18, 1991, Maestas was charged by information with possession of marijuana in violation of 21 U.S.C. Sec. 844(a). On January 31, 1992, she filed a motion to suppress the marijuana and her confession on the ground that the stop was unreasonable under the Fourth Amendment because (1) the roving Border Patrol agents used the fixed checkpoint as a pretext to make a roving patrol stop for which they did not have the requisite reasonable suspicion, and (2) the stop abused the fixed checkpoint by giving the roving agents unbridled discretion. After a hearing, the magistrate judge denied the motion to suppress on April 15, 1992.

On May 26, 1992, Maestas pleaded guilty under an agreement allowing her to appeal the denial of the suppression motion. The district court affirmed the magistrate judge's denial of the suppression motion on October 5, 1992. Maestas appeals, contending that the district court erred in denying the suppression motion. She contends that both her initial stop at the fixed border checkpoint and her referral to the secondary checkpoint were pretextual and therefore unreasonable under the Fourth Amendment. That is, Maestas asserts that the roving Border Patrol agents used the fixed checkpoint to stop her to investigate her suspicious behavior that suggested she might be smuggling drugs--something that she asserts they could not have otherwise done because they did not have the quantum of suspicion for a roving patrol stop required by United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607 (1975). She therefore asserts that the fruits of these unreasonable seizures--including the marijuana and her confession--should be suppressed under Wong Sun v. United States, 371 U.S. 471, 484-88, 83 S.Ct. 407, 415-18, 9 L.Ed.2d 441 (1963), and United States v. Recalde, 761 F.2d 1448, 1459 (10th Cir.1985). Because we find no illegality in either the initial stop of Maestas or in her reference to the secondary checkpoint, we find that the district court properly denied her motion to suppress.

We will first address whether there could ever be a pretextual stop at a border checkpoint, which requires no individualized suspicion to justify an initial stop. We will then assess the legality of the decision to stop Maestas at the primary inspection area of the checkpoint. Finally, we will consider the legality of Agent Maroney's decision to refer Maestas to the secondary checkpoint.


Although no individualized suspicion is required for border checkpoint stops under United States v. Martinez-Fuerte, 428 U.S. 543, 562, 96 S.Ct. 3074, 3085, 49 L.Ed.2d 1116 (1976), this does not preclude the possibility that such a stop could be pretextual (although it might make such a claim difficult to prove).

Martinez-Fuerte itself suggests that pretext analysis could apply to border checkpoint cases, although the Court did not explicitly address the pretext issue. While the Court held that no individualized reason need exist to justify a border checkpoint stop, see id. at 563, 96 S.Ct. at 3085, it indicated that there may nevertheless be impermissible reasons for stopping particular motorists, see id. at 564 n. 17, 96 S.Ct. at

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3085 n. 17. 1 The Court noted that relying on ethnicity as a factor in deciding who to stop might, under some circumstances, raise constitutional difficulties. See Id. Similarly, the majority contemplated the possibility of pretextual challenges to fixed checkpoints when it responded to the dissent's concern that the majority's holding would subject people of Mexican ancestry to undue harassment. The majority pointed out that, "upon a proper showing, courts would not be powerless to prevent the misuses of checkpoints [near the Mexican border] to harass those of Mexican ancestry." Id. at 567 n. 19, 96 S.Ct. at 3087 n. 19. These passages suggest that it is possible that an agent at a fixed checkpoint could stop a motorist for an impermissible reason--such as a motorist's race that is not relevant to the purpose of the checkpoint or an agent's desire to harass a motorist.

Of course, an improper motive, by itself, does not render a stop pretextual. We apply an objective test to determine whether a stop made for an ostensibly legal reason is a pretext for what is, in reality, an impermissible reason: more specifically, we ask whether the officer would have...

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