U.S. v. Rascon-Ortiz

• Decision Date: 28 May 1993
• Docket Number: RASCON-ORTIZ,Nos. 91-2291 and 91-2292,s. 91-2291 and 91-2292
• Citation: 994 F.2d 749
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Juan Manuel, and Edgar Rascon-Sotelo, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 749

994 F.2d 749

UNITED STATES of America, Plaintiff-Appellant, v. Juan Manuel RASCON-ORTIZ, and Edgar Rascon-Sotelo Defendants-Appellees.

Nos. 91-2291 and 91-2292.

United States Court of Appeals Tenth Circuit.

May 28, 1993.

Kelly H. Burnham (Don J. Svet, U.S. Atty., Albuquerque, NM, with her on the brief), Asst. U.S. Atty., Las Cruces, NM, for plaintiff-appellant.

Francisco Mario Ortiz, Las Cruces, NM, for defendant-appellee in No. 91-2291.

William D. Fry, Asst. Federal Public Defender, Las Cruces, NM, for defendant-appellee in No. 91-2292.

Before MOORE, BRORBY and EBEL, Circuit Judges.

BRORBY, Circuit Judge.

At a permanent border patrol checkpoint located near the United States-Mexico border, agents discovered thirty-eight pounds of marijuana hidden in the fuel tank of a vehicle driven by the Appellees, Juan Manual Rascon-Ortiz and Edgar Rascon-Sotelo. Both men were indicted for possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D) and 18 U.S.C. § 2. The United States appeals the district court order granting the Appellees' motion to suppress evidence obtained at the checkpoint. We reverse.

I. Background

The relevant facts are as follows. On October 13, 1991, Juan Manual Rascon-Ortiz drove his Mercury Topaz into the permanent border patrol checkpoint located on Highway 54, near Orogrande, New Mexico, roughly forty miles from the Mexico border. Mr. Rascon-Ortiz, accompanied by Mr. Edgar Rascon-Sotelo, stopped as required at the primary inspection area. Border patrol agent Sidney Hooper questioned Mr. Rascon-Ortiz about his citizenship. According to Agent Hooper's observations, Mr. Rascon-Ortiz's hand was shaking badly when he handed Agent Hooper his alien registration card. Agent Hooper then inquired as to Mr. Rascon-Sotelo's citizenship and Mr. Rascon-Sotelo replied that he was a Mexican citizen and produced a Mexican passport with a visitor's visa. Mr. Rascon-Sotelo's hand was also visibly shaking. Due to their nervous behavior, Agent Hooper, who had over eighteen years experience as a border patrol agent, directed the Appellees to secondary inspection while he checked other vehicles which had stopped behind the Appellees. Appellees were at the primary inspection area for one to two minutes.

Border Patrol Agent Eligio Pena, who was not present during the primary inspection, talked briefly with Agent Hooper before going to the secondary inspection area. Agent Hooper told Agent Pena that he thought they "had something because [the Appellees] were shaking like leaves in the wind." Agent Pena became more suspicious when he noticed the car was a Mercury Topaz because four similar vehicles manufactured by Ford were found to have contraband hidden in false compartments in their gas tanks during the past six weeks. Without further questioning the Appellees, Agent Pena knelt down and looked under the car with a flashlight and noticed the bolts supporting the gas tank were shiny, indicating someone may have tampered with them. Agent Pena then got on his back and slid under the car to take a closer look. With the aid of a mirror and flashlight, Agent Pena observed that both the bolts supporting the gas tank and the threads of the gas line clamp were shiny and scratched, as if they had recently been removed or replaced. Agent Pena's brief inspection of the vehicle's undercarriage at secondary took roughly two minutes.

Based upon his observations under the car and his seven years of experience as a border patrol agent, Agent Pena determined that the gas tank had recently been removed and might contain a false compartment. Agent Pena then brought out a trained dog which alerted on the gas tank, indicating the presence of contraband. ¹ The Appellees were advised of their Miranda rights and consented, in writing, to a search of the vehicle. The vehicle was subsequently placed on a ramp and a total of thirty-nine pounds of marijuana were discovered in hidden compartments within the gas tank.

Mr. Rascon-Ortiz and Mr. Rascon-Sotelo were indicted for possession with intent to distribute less than fifty kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D) and 18 U.S.C. § 2. Both Appellees moved to suppress all evidence seized at the border checkpoint, alleging the detention and search were unlawful under the Fourth Amendment. After a pretrial hearing, the district court granted the motion to suppress. Although it was deemed reasonable to refer the Appellees to the secondary inspection area, the district court found the border patrol agents lacked the necessary reasonable suspicion or probable cause to justify the "more intrusive investigative detention in the secondary area," and, therefore, the agents "exceeded the bounds of what the Fourth Amendment allowed at that moment." The United States appeals, asserting that the district court erred in granting the Appellees' motion to suppress.

II. Legal Analysis

Upon appeal, we consider evidence addressed at a suppression hearing in a light most favorable to the prevailing party. United States v. Johnson, 895 F.2d 693, 697-98 (10th Cir.1990). While a trial court's finding of facts are reviewed for clear error, United States v. Palomino, 877 F.2d 835, 837 (10th Cir.1989), questions of law, including a reasonableness determination under the Fourth Amendment, are reviewed de novo, United States v. Corral, 970 F.2d 719, 723 (10th Cir.1992).

The government alleges that Agent Pena's visual inspection of the vehicle's undercarriage was part of a valid customs inspection and did not constitute a search. Moreover, the government alleges the Appellees' nervous behavior gave rise to a reasonable suspicion that the Appellees were involved in criminal activity. The Appellees contend Agent Hooper violated their Fourth Amendment rights when he directed them to the secondary inspection area. Specifically, the Appellees assert that because they were questioned about their citizenship and immigration status at the primary inspection area, any further detention was invalid as Agent Hooper lacked probable cause or reasonable suspicion. In order to resolve these allegations, we must first clarify the law concerning primary and secondary inspection areas. ²

A. Detention of Appellees at the Secondary Inspection Area.

Despite numerous recent rulings, there apparently still exists some confusion over the distinction between primary and secondary inspection areas at border checkpoints. See, e.g., United States v. Ludlow, 992 F.2d 260, 263 (10th Cir.1993). In the present case, the confusion appears to stem from two separate statements of the law. First, the Tenth Circuit has repeatedly stated that agents have virtually unlimited discretion in selectively referring motorists to secondary inspection. See, e.g., United States v. Sanders, 937 F.2d 1495, 1499 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1213, 117 L.Ed.2d 451 (1992); United States v. Rubio-Rivera, 917 F.2d 1271, 1275 (10th Cir.1990). This statement of the law is based upon the Supreme Court decision in United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). However, as Appellees point out, this circuit has also stated that "when the questions asked at the primary checkpoint allay all concerns about citizenship and immigration status, an agent still may direct a vehicle to a secondary checkpoint and further question the occupants on the basis of reasonable suspicion that a crime has been committed." ³ Rubio-Rivera, 917 F.2d at 1276 (emphasis added) (citing Johnson, 895 F.2d at 696, 698). These statements of the law are not in conflict.

A brief summary of relevant border checkpoint law is necessary in order to clarify Tenth Circuit law. A detention at a border checkpoint is a seizure under the Fourth Amendment. ⁴ Martinez-Fuerte, 428 U.S. at 556, 96 S.Ct. at 3082. However, because the public has a substantial interest in protecting the integrity of our national borders, and the intrusion upon one's right to privacy and personal security by a routine border inspection is minimal, a border patrol agent may briefly detain and question an individual without any individualized suspicion as required under Terry v. Ohio. Martinez-Fuerte, 428 U.S. at 556-62, 96 S.Ct. at 3082-85. The Fourth Amendment protects an individual's liberty at a border checkpoint by limiting the scope of the detention. Id. at 566-67, 96 S.Ct. at 3087.

There are two statements of law in Martinez-Fuerte which are especially relevant to our discussion. First, the Supreme Court held that border patrol agents may direct motorists from the primary inspection area to secondary without individualized suspicion and "have wide discretion in selecting the motorists to be diverted." ⁵ Id. at 563-64, 96 S.Ct. at 3085. Second, the Supreme Court held that border patrol agents were allowed to conduct a "routine checkpoint stop," but " '[a]ny further detention ... must be based on consent or probable cause.' " Id. at 567, 96 S.Ct. at 3087 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 882, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607 (1975)).

A routine checkpoint stop must be brief and unintrusive. It generally involves questions concerning the motorist's citizenship or immigration status, and a request for documentation. Martinez-Fuerte, 428 U.S. at 558, 96 S.Ct. at 3083; United States v. Benitez, 899 F.2d 995, 997 (10th Cir.1990). A cursory visual inspection of the vehicle is also routine, Martinez-Fuerte, 428 U.S. at 558, 96 S.Ct. at 3083, and a few brief questions concerning such things as vehicle ownership, cargo, destination, and travel plans may be appropriate if reasonably related to the agent's duty to prevent the unauthorized entry of individuals into this country and to prevent the smuggling of contraband. The Tenth Circuit has further held if an agent observes "suspicious circumstances," the agent may briefly question the motorist concerning those...