U.S. v. Benitez

• Decision Date: 30 March 1990
• Docket Number: Nos. 88-2117,88-2173,s. 88-2117
• Citation: 899 F.2d 995
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Manuel BENITEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 995

899 F.2d 995

UNITED STATES of America, Plaintiff-Appellee, v. Jose Manuel BENITEZ, Defendant-Appellant.

Nos. 88-2117, 88-2173.

United States Court of Appeals Tenth Circuit.

March 30, 1990.

Presiliano A. Torrez, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., on the brief), Albuquerque, N.M., for plaintiff-appellee.

Charles Louis Roberts, (Gary Hill and Robert Ramos, El Paso, Tex., on the brief), El Paso, Tex., for defendant-appellant.

Before ANDERSON, BARRETT, Circuit Judges, and THEIS, ^* District Judge.

THEIS, District Judge.

This is an appeal from a final judgment and commitment in a criminal case. The appellant, Jose Manuel Benitez, was indicted for possession of a controlled substance with intent to distribute and aiding and abetting, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. The appellant's motion to suppress evidence was denied by the district court. Following the denial of his motion to suppress, the appellant entered a guilty plea and reserved the right to appeal the denial of his motion to suppress.

As stated by the appellant, the issues presented on appeal are: whether the detention and seizure of the appellant and his vehicle went beyond that authorized at a Border Patrol checkpoint and thus violated the fourth amendment to the United States Constitution; whether the appellant gave a knowing and voluntary consent to the search of his vehicle; and whether the evidence seized from the appellant's vehicle and the fruits thereof should be suppressed because the search was neither supported by probable cause nor by a knowing and voluntary consent. Brief of Appellant at 2.

A. Jurisdiction

This court requested briefing on whether we have appellate jurisdiction. On April 26, 1988, the district court heard and denied the appellant's motion to suppress. That same day, the appellant entered a conditional plea of guilty. On July 27, 1988, the court imposed sentence. Final judgment was docketed on July 28, 1988. On July 11, 1988, the appellant filed an untimely notice of appeal with respect to the initial judgment. On July 18, 1988, the court entered an amended judgment and commitment. The amendment related to the conditions of supervised release following confinement. On July 21, 1988, the appellant filed a notice of appeal from the amended judgment. On August 3, 1988, appellant filed a motion pursuant to Rule 4(b) of the Federal Rules of Appellate Procedure for a thirty day extension of time for filing the notice of appeal. The government did not oppose the motion. The district court granted the motion on the same date.

Both the appellant and the government argue that this court has appellate jurisdiction since the two notices of appeal were filed within the thirty day extension period. The district court order granted the maximum extension of thirty days, or until August 7, 1988, to file the notice of appeal. Both notices of appeal were filed within that time frame. We conclude that we have jurisdiction to hear the appeal.

B. Merits of the Appeal

The testimony given at the suppression hearing indicates that in the early afternoon of November 5, 1987, appellant and his wife drove into a permanent United States Border Patrol checkpoint on Interstate Highway 25 near Truth or Consequences, New Mexico. Border Patrol Agent Robert H. Dunlap questioned appellant regarding his citizenship. Appellant indicated he was a United States citizen. Appellant's wife presented an alien registration card. R. Vol. II, at 6. Agent Dunlap testified that appellant was very tense. Dunlap further testified that he asked for permission to look in the trunk of the appellant's automobile. The appellant immediately exited the car and opened the trunk. R. Vol. II, at 7. Dunlap noted a large amount of luggage and clothing in the trunk of the car. When asked if they were moving, the appellant replied that they were merely going to Albuquerque for the weekend. R. Vol. II, at 8.

Dunlap testified that he then asked for permission to search the luggage. Appellant did not respond verbally; instead he unzipped the suitcase. Dunlap observed inside the suitcase a plastic-wrapped package similar to marijuana packages he had confiscated in the past month. Inside the package was marijuana. R. Vol. II, at 9.

The appellant testified at the hearing that he interpreted Dunlap's statements as orders to open both the trunk and the suitcase and that he complied accordingly. R. Vol. II, at 24-26.

The district court found that Agent Dunlap had reasonable suspicion, based on appellant's nervous conduct, prior to asking for consent to search. The court found that Dunlap did not order appellant to open the trunk or the suitcase; rather, he requested consent. Finally, the court found that the appellant had voluntarily consented to the search. R. Vol. II, at 37.

The standard of review is well established:

In reviewing a denial of a motion to suppress, the trial court's finding of fact must be accepted by this court unless clearly erroneous, United States v. Cooper, 733 F.2d 1360, 1364 (10th Cir.1984), with the evidence viewed in the light most favorable to the district court's finding. United States v. Obregon, 748 F.2d 1371, 1376 (10th Cir.1984).

United States v. Espinosa, 782 F.2d 888, 892 (10th Cir.1986) (quoting United States v. Lopez, 777 F.2d 543, 548 (10th Cir.1985)).

The appellant first argues that his detention at the Border Patrol checkpoint went beyond an authorized investigatory stop and thus was an unconstitutional seizure of his person. The appellant argues that detention at a permanent Border Patrol checkpoint is lawful when the inquiry is brief and concerns only the citizenship of the occupants of the vehicle. Appellant argues that any further detention, inquiry into other matters, or search must be supported by probable cause.

The Border Patrol maintains permanent checkpoints on important roads leading away from the border. At these checkpoints, a vehicle may be stopped and its occupants may be questioned briefly, even if there is no reason to believe the particular vehicle contains illegal aliens. United States v. Villamonte-Marquez, 462 U.S. 579, 587, 103 S.Ct. 2573, 2579, 77 L.Ed.2d 22 (1983) (citing United States v. Martinez-Fuerte, 428 U.S. 543, 545, 96 S.Ct. 3074, 3077, 49 L.Ed.2d 1116 (1976)). The occupants of the vehicle may be required to answer a few questions regarding their citizenship or to produce documentation evidencing a right to be in the United States. Martinez-Fuerte, 428 U.S. at 558, 96 S.Ct. at 3083 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 880, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975)). Additionally, the Border Patrol may ask the driver and passengers to explain suspicious circumstances. United States v. Espinosa, 782 F.2d 888, 891 (10th Cir.1986). In a case decided this term we have reaffirmed the authority of the Border Patrol to question individuals regarding suspicious circumstances, in addition to citizenship matters, when those individuals are stopped at a permanent checkpoint. United States v. Johnson, 895 F.2d 693 (10th Cir.1990). At permanent checkpoints removed from the border, however, officers may not search a private vehicle without consent or probable cause. United States v. Ortiz, 422 U.S. 891, 896-97, 95 S.Ct. 2585, 2589, 45 L.Ed.2d 623 (1975).

In the present case, the district court found that Agent Dunlap had reasonable suspicion, based on appellant's nervous conduct, to question appellant further and to request permission to search. R. Vol. II, at 37. The finding of reasonable suspicion is not specifically challenged on appeal; however, we hold that this finding is not clearly erroneous. Agent Dunlap testified that appellant demonstrated several indicia of nervousness. Appellant was gripping the steering wheel tightly, his knuckles were white, his Adam's apple was moving up and down, he stuttered when he answered Dunlap's questions, and he was sweating although it was fairly cool that day. R. Vol. II, at 20. Appellant's nervousness gave rise to reasonable suspicion which justified Agent Dunlap's further questioning and request for consent to search.

Appellant next argues that he...