U.S. v. Sanders

• Decision Date: 24 June 1991
• Docket Number: No. 90-2216,90-2216
• Citation: 937 F.2d 1495
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Larry Earl SANDERS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1495

937 F.2d 1495

UNITED STATES of America, Plaintiff-Appellant, v. Larry Earl SANDERS, Defendant-Appellee.

No. 90-2216.

United States Court of Appeals Tenth Circuit.

June 24, 1991.

Richard A. Friedman, Dept. of Justice, Washington, D.C., (William L. Lutz, U.S. Atty., David N. Williams, Thomas L. English, Asst. U.S. Attys., Albuquerque, N.M., with him on the brief), for plaintiff-appellant.

James B. Foy, Silver City, N.M., for defendant-appellee.

Before MOORE and BRORBY, Circuit Judges, and VAN BEBBER, ^* District Judge.

BRORBY, Circuit Judge.

The United States appeals the order of the district court granting Defendant's motion to suppress evidence seized from a pickup truck at a permanent border checkpoint.

The facts were developed during a hearing upon the motion to suppress and are undisputed and uncontested as the only evidence given at this hearing came from two border patrol agents. At 2:30 a.m., Defendant drove a pickup bearing California license plates into the primary inspection area of the permanent border patrol checkpoint located on the westbound portion of Interstate 10 about forty miles from the Mexico-United States border. This highway carries auto traffic from the Juarez, Mexico-El Paso, Texas area to California. As the pickup came to a stop, the border patrol agent's attention was caught by two pickup-style black tool boxes located in the bed of the pickup. This caught the agent's attention as while he had seen numerous pickups with one of these tool boxes, he had never before seen a pickup containing two. The agent had previously found illegal narcotics secreted in this type of tool box. The border patrol found illegal narcotics in vehicles at this checkpoint from five to fifteen times each day.

After the pickup stopped, the agent asked Defendant if he was a citizen of the United States and received a positive answer. He then asked Defendant if he was coming from the El Paso border area and Defendant stated he was from California, had come to El Paso from Arizona and stayed in El Paso a couple of days to visit friends, and was returning to Arizona. The border patrol agent then asked Defendant what he was carrying inside the tool boxes, and Defendant replied: "[W]ell, what are you looking for?" At this point, the border patrol agent testified he became suspicious due to the presence of two tool boxes, the fact that these type of tool boxes had been utilized to secrete drugs, and by the fact that Defendant had given a detailed answer to the question concerning where he had been and avoided answering the question concerning what was in the tool boxes. Defendant had been at this primary inspection for a short time. ¹ Due to the fact that two vehicles and several semitrailers were stopped on the ramp behind Defendant's vehicle, the border patrol agent requested Defendant drive the pickup approximately thirty feet to a secondary inspection area. He would have kept Defendant and his vehicle at the primary inspection area longer but for the traffic back-up.

At the secondary inspection area, as the border patrol agent was approaching the pickup, Defendant, who had already exited the pickup, stated: "[O]h, you're Border Patrol. You're looking for illegal aliens," and began to open the two tool box doors that were on the driver's side of the pickup. At this time, a second border patrol agent walked over to the passenger side of the pickup to open the tool box doors on that side of the pickup. As he did he saw a cellular telephone, a pair of binoculars and the barrel of a large caliber weapon in the front seat. These objects increased the first border patrol agent's suspicions because he knew from experience that narcotic smugglers use binoculars to scout inspection checkpoints and cellular phones to receive reports concerning checkpoint operations. At this point, the first agent asked Defendant if the weapon was loaded and if he had any other weapons on his person or in the vehicle. Defendant looked down at the ground, his hands became fidgety, and he asked the agent: "[H]ow much trouble am I in?" Defendant began to pace, and replied the gun was loaded. The border patrol agent then asked who was the owner of the pickup and Defendant said "Jim," but that he did not know Jim's last name.

The agent then requested permission to search the vehicle and received Defendant's permission. The agent opened the driver's door, folded the seat forward and saw a gallon jar. The lid was opened, and the agent detected a very strong chemical odor, which was similar to that he had experienced in clandestine methamphetamine laboratories. Defendant stated it was only water in the jar and he picked up the jar to his mouth, tilted his head back, and then spit the liquid back into the jar. At this time, Defendant then wiped his mouth and said: "[S]ee, it's just water." At this time, the agent advised Defendant of his Miranda rights and again received permission to search the vehicle. Up to this point, Defendant had been in the secondary inspection area but a few minutes. During the search, a quantity of methamphetamine was found. Defendant was subsequently indicted for possessing more than ten grams of methamphetamine with intent to distribute and with carrying and using a firearm during and in relation to a drug crime. 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(B); 18 U.S.C. Sec. 924(c).

Defense counsel premised his argument at the suppression hearing on his theory that there was no reasonable articulable suspicion to refer Defendant to the secondary inspection area.

The district court, having heard the above evidence, agreed with Defendant and granted the motion, stating from the bench as follows:

Okay. The motion to suppress will be granted. I don't think [United States v. Benitez, 899 F.2d 995 (10th Cir.1990) ] is authority for the proposition and scenario that we have in this case. Apparently in Benitez, the defendant was stopped at a checkpoint, appeared tense when he was there, and he was, apparently he was at primary all the way through. And as he was asked if he would permit the search, and he got out and opened the trunk.

That's not the situation that we have here. The situation that we have here is a person approaching--excuse me, a person who went to the primary checkpoint. He was asked to stop there and, I mean, he did stop there. And the alleged circumstances which you say justify the suspicion that the person was engaged in criminal activity I don't accept that. I mean, we have--the use of these tool boxes is something that is widespread and, of course, the use of those tool boxes at the border areas is widespread.

The response to "what's in those boxes," "what are you looking for?" is a perfectly natural one. So, I don't feel that the detention, beyond the detention at primary, was justified in the case, so the motion will be granted.

In response to a question from the prosecutor, the court further stated:

I'm just ruling that in this case the defendant was held beyond the appropriate time that he should have been, for the appropriate inquiries that could be made in the period of time that it takes to make those inquiries. I'm not requiring beyond that.

The district court's entire findings and conclusions are quoted above. It appears the district court accepted the credibility of the two border patrol agents. It further appears the district court had a dual rationale underlying its decision: first, the circumstances failed to "justify the suspicion that the person was engaged in criminal activity"; and second, "defendant was held beyond the appropriate time ... for the appropriate inquiries."

The Government appeals from the district court's order granting Defendant's motion to suppress asserting the border patrol agent's conduct was objectively reasonable under the Fourth Amendment. Defendant responds that any detention beyond verifying citizenship is unreasonable when objectively reasonable circumstances warranting further questioning fail to exist.

Our decision in this case is facilitated by reviewing the law applicable to stops at permanent border checkpoints. A permanent border checkpoint need not be located on the border. United States v Martinez-Fuerte, 428 U.S. 543, 553, 96 S.Ct. 3074, 3080, 49 L.Ed.2d 1116 (1976). Stops and limited questioning may be asked in the absence of any individualized suspicion at reasonably located checkpoints. Id. at 562, 96 S.Ct. at 3084. No individualized suspicion is necessary to stop, question and then selectively refer motorists to a secondary inspection checkpoint. Id. at 563, 96 S.Ct. at 3085; United States v. Rubio-Rivera, 917 F.2d 1271, 1275 (10th Cir.1990). Border patrol agents have "virtually unlimited discretion to refer cars to the secondary inspection area." INS v. Delgado, 466 U.S. 210, 224 n. 6, 104 S.Ct. 1758, 1766 n. 6, 80 L.Ed.2d 247 (1984) (Powell, J., concurring); United States v. Price, 869 F.2d 801, 802-04 (5th Cir.1989); Jasinski v. Adams, 781 F.2d 843, 847-848 n. 7 (11th Cir.1986); United States v. Garcia, 616 F.2d 210, 211-12 (5th Cir.1980) (per curiam ); United States v. Lopez, 581 F.2d 1338, 1342-43 (9th Cir.1978).

We next look to the law defining permissible questioning at permanent border checkpoints. Questions may be asked in the absence of any individualized suspicion. Martinez-Fuerte, 428 U.S. at 562, 96 S.Ct. at 3085. Border patrol agents may "question individuals regarding suspicious circumstances, in addition to citizenship matters, when those individuals are stopped at a permanent checkpoint." United States v. Benitez, 899 F.2d 995, 998 (10th Cir.1990). But any further detention must be based on the individual's consent or probable cause, United States v. Espinosa, 782 F.2d 888, 891 (10th Cir.1986), or upon a valid investigative detention, Espinosa, 782 F.2d at 890; see also Rubio-Rivera, 917 F.2d at 1276-77 (validity of investigative detention decided on common-sense approach based on ordinary human...