U.S. v. Gonzalez-Acosta, GONZALEZ-ACOST

• Decision Date: 22 March 1993
• Docket Number: No. 92-2146,D,GONZALEZ-ACOST,92-2146
• Citation: 989 F.2d 384
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Annetteefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 384

989 F.2d 384

UNITED STATES of America, Plaintiff-Appellee, v. Annette GONZALEZ-ACOSTA, Defendant-Appellant.

No. 92-2146.

United States Court of Appeals Tenth Circuit.

March 22, 1993.

Don J. Svet, U.S. Atty., and Judith A. Patton, Asst. U.S. Atty., Las Cruces, NM, on the brief, for plaintiff-appellee.

R. Morgan Lyman, Asst. Federal Public Defender, Las Cruces, NM, on the brief, for defendant-appellant.

Before LOGAN, HOLLOWAY, and MOORE, Circuit Judges.

JOHN P. MOORE, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Defendant Annette Gonzalez-Acosta appeals her conviction for possession with intent to distribute marijuana. She raises three questions for our review: (a) whether the district court erred in denying her motion to suppress; (b) whether the court erred in denying her motion for pretrial production of canine records; and (c) whether the court erred in denying her motion for an independent weighing of the marijuana for sentencing. Finding no error, we affirm.

The trial court found and the record indicates the following circumstances. On October 31, 1991, defendant drove into a permanent border patrol station in Otero County, New Mexico. At the primary inspection area, she and the vehicle's other occupant produced valid resident alien cards. However, because defendant avoided eye contact and appeared to be slightly nervous, U.S. Border Patrol Agent Reymundo H. Sanchez inquired where she was going. Defendant responded that she was traveling to Ruidoso, New Mexico, for two days. The agent asked for and received permission to inspect the trunk of her vehicle. The trunk contained no luggage.

Another Border Patrol Agent, Eligio Pena, then squatted down and looked under the vehicle. Using a mirror and flashlight, Agent Pena saw shiny bolts on the gas tank support straps. Suspecting the gas tank had been altered to conceal narcotics, he referred defendant to the secondary inspection area and obtained verbal consent to conduct a dog search of the vehicle.

After the dog alerted, defendant signed a written form consenting to a full search of the vehicle. Agents retrieved approximately 25 pounds of marijuana from the vehicle's gas tank.

On November 20, 1991, defendant was indicted for possession with intent to distribute less than 50 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D). She pled not guilty and filed motions for pretrial production and to suppress the evidence. The motions were denied.

Defendant was tried twice. Her first trial ended in a mistrial because the jury could not reach a unanimous decision. She was retried and convicted in March 1992.

I.

The district court denied defendant's motion to suppress on the ground that the border patrol agents had reasonable suspicion to conduct the undercarriage inspection and the dog search. Specifically, the court found "everything the officer did was more than reasonable, and his suspicions were justified; there was no illegal detention and no illegal search."

On appeal, defendant contends the district court's finding of reasonable suspicion is "clearly erroneous." Defendant maintains because permanent border patrol stops must be immigration-related, she should have been free to leave once she produced valid documentation. Instead, she was involuntarily detained at the primary checkpoint area while Agent Pena searched the undercarriage of her vehicle. According to defendant, her detention was unlawful because the inspection "was directed toward matters unrelated to the original [immigration-related] reason for the stop" and because Agent Pena lacked reasonable suspicion. Thus, she claims the marijuana seized by the agents must be "suppressed as a fruit of her unlawful detention."

The standard of review for denial of a motion to suppress "is well established." United States v. Benitez, 899 F.2d 995, 997 (10th Cir.1990). "[T]he trial court's finding of fact must be accepted by this court unless clearly erroneous, with the evidence viewed in the light most favorable to the district court's finding." United States v. Espinosa, 782 F.2d 888, 892 (10th Cir.1986) (citations omitted) (quoting United States v. Lopez, 777 F.2d 543, 548 (10th Cir.1985)). Moreover, "[i]f or where findings are not made, this court must uphold the ruling if there is any reasonable view of the evidence to support it." United States v. Neu, 879 F.2d 805, 807 (10th Cir.1989) (citation omitted). The ultimate determination of reasonableness under the Fourth Amendment, however, is a conclusion of law which we review de novo. United States v. Butler, 904 F.2d 1482, 1484 (10th Cir.1990) (citations omitted).

"The Fourth Amendment is not a guarantee against all searches and seizures, but only against unreasonable searches and seizures." Espinosa, 782 F.2d at 890 (citation omitted). Consequently, "[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." United States v. Johnson, 895 F.2d 693, 696 (10th Cir.1990) (citations omitted) (quoting Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972)). Moreover, "[n]o individualized suspicion is necessary to stop, question and then selectively refer motorists to a secondary inspection checkpoint." United States v. Sanders, 937 F.2d 1495, 1499 (10th Cir.1991) (citations omitted), cert. denied, --- U.S. ----, 112 S.Ct. 1213, 117 L.Ed.2d 451 (1992). Thus, the initial inquiry is whether the undercarriage inspection of defendant's vehicle amounted to a "search" within the meaning of the Fourth Amendment.

The Supreme Court has held that "[w]hat a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967) (citations omitted). "Nor is it a search when a law enforcement officer makes visual observations from a vantage point he rightfully occupies." United States v. Burns, 624 F.2d 95, 100 (10th Cir.) (citation omitted), cert. denied, 449 U.S. 954, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980). Thus, if an object is in plain view, "neither its observation nor its seizure would involve any invasion of privacy." Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301, 2306, 110 L.Ed.2d 112 (1990) (citations omitted). Moreover, "the use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection." Texas v. Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 1542, 75 L.Ed.2d 502 (1983) (citations omitted). Likewise, an officer may "change[ ] [his] position" and "ben[d] down at an angle" to see what is inside a car, because "there is no reason [why an officer] should be precluded from observing ... what would be entirely visible to him as a private citizen." Id. Applying this reasoning to the instant appeal, we conclude the undercarriage inspection of defendant's vehicle did not constitute a "search" within the meaning of the Fourth Amendment. Consequently, we do not reach the issue of reasonable suspicion.

We also reject defendant's contention that border patrol agents must confine their activities to immigration-related matters. To the contrary, "[b]order patrol agents are not required to ignore suspicious circumstances, even if such circumstances may not be pertinent to citizenship and immigration status." United States v. Rubio-Rivera, 917 F.2d 1271, 1276 (10th Cir.1990) (citations omitted). Moreover, "[d]etention and questioning at borders based only on suspicious circumstances are approved as consistent with the accepted government policy of ensuring that ... no one is permitted to secrete contraband through the border." Sanders, 937 F.2d at 1500. Therefore, border patrol agents may ask motorists to explain suspected drug activity because such questioning "bears a reasonable relationship to their unique duties." Id.

In Sanders, we noted that although a border patrol agent may question an individual about his citizenship and ask him to explain suspicious circumstances, "any further detention must be based on the individual's consent or probable cause, or upon a valid investigative detention." Id. at 1499 (citations omitted). Here, both border patrol agents testified defendant consented to the dog search of her vehicle. By not challenging this evidence on appeal, defendant has implicitly admitted the dog search was consensual. Thus, she cannot now contend her consent was infected by an unlawful detention. See Espinosa, 782 F.2d at 891. Moreover, "[o]nce the dog alerted the agents to the presence of narcotics, the agents had probable cause to search the car." United States v. Pinedo-Montoya, 966 F.2d 591, 594 (10th Cir.1992). Consequently, we conclude the district court properly denied defendant's motion to suppress.

II.

Before the suppression hearing, defendant filed a motion for pretrial production of the training file for the dog that sniff-searched her vehicle. Specifically, she sought "training records, veterinary records, false-positive/false-negative alert records and all other records establishing the dog's ability to smell." Defendant argued the dog search was suspect because the dog had been recovering from a serious injury and had false-alerted upon initial contact with her vehicle. The district court decided to proceed with the suppression hearing before determining whether the records were necessary.

At the suppression hearing, Agent Pena, the dog's handler, testified that although the dog had been injured several months earlier, the dog was certified on the day defendant's vehicle...