Unpublished Disposition, 842 F.2d 1295 (9th Cir. 1987)

MEMORANDUM^* 

On March 23, 1987, the district court denied the motion of Francisco Javier Lizarraga-Lopez ("Lizarraga") to suppress evidence and statements resulting from a search of his pickup truck at a border patrol checkpoint. On May 26, 1987, pursuant to Fed. R. Crim. P. 11(a) (2), Lizarraga entered a conditional plea of guilty to three felony drug counts, reserving his right to appeal the adverse judgment of the district court. Lizarraga now appeals the district court's denial of his motion to suppress, contending that Agent Higgins lacked probable cause to search his vehicle. We hold that the search was lawful and that the evidence need not be suppressed.

DISCUSSION

A district court's decision to grant or deny a motion to suppress is reviewed de novo. United States v. Miller, 812 F.2d 1206, 1208 (9th Cir. 1987).

The standards used to determine the validity of a search by a border patrol agent, conducted at a permanent traffic checkpoint, are well established. A border patrol agent can briefly detain and question an individual at a traffic checkpoint without reasonable suspicion of wrongdoing. United States v. Martinez-Fuerte, 428 U.S. 543, 562 (1976). A search of a vehicle at a traffic checkpoint, however, requires either consent or probable cause to be valid under the Fourth Amendment. United States v. Ortiz, 422 U.S. 891, 896-97 (1975). As long as the vehicle search is conducted pursuant to probable cause, the search does not require a warrant to be reasonable under the Fourth Amendment. Carroll v. United States, 267 U.S. 132, 153-54 (1925). Lizarraga contends that Agent Higgins violated his Fourth Amendment rights by searching the cab of his truck without probable cause.

Probable cause is a "flexible, common-sense standard." Texas v. Brown, 460 U.S. 730, 742 (1983). Probable cause requires that the facts and circumstances known to the agent would "warrant a man of reasonable caution in the belief that [evidence of illegal activity] was being transported in the automobile which they stopped and searched." United States v. Patterson, 492 F.2d 995, 997 (9th Cir.) (quoting Carroll v. United States, 267 U.S. at 162), cert. denied, 419 U.S. 846 (1974). Furthermore, an agent's training and experience should be considered in making a probable cause determination. United States v. Bernard, 623 F.2d 551, 560 (9th Cir. 1979) (" [c]onduct innocent in the eyes of the untrained may carry entirely different 'messages' to the experienced or trained observer").

Agent Higgins had four years experience as a border patrol agent. He based his determination of probable cause on a number of facts. At the secondary inspection area, Lizarraga appeared extremely nervous, and was stuttering and shaking. When Agent Higgins looked through the open door on the driver's side of the truck, he noticed some beige carpeting that did not match the color of the carpeting in the rest of the vehicle. The carpeting, wedged between the seat and the rear of the cab, appeared bowed out to Agent Higgins.

Additionally, he spotted a pair of blue jeans, positioned next to the carpeting behind the driver's seat. The blue jeans arose suspicion primarily because the front seat was empty except for a baseball cap. Agent Higgins thought it highly unusual that a pair of jeans would be placed behind the seat when the front seat was empty. He testified that the blue jeans looked as if they were placed there to cover the small gap left uncovered by the carpeting "as if to hide something."

Moreover, Agent Cephas had informed Agent Higgins of a "strong, sweet perfume smell from the vehicle." Agent Cephas had been taught that strong perfume is often used to mask the odors of illegal drugs. See United States v. Chadwick, 433 U.S. 2476, 2479 (1977) (talcum powder often used to conceal the odor of marijuana). This evidence is relevant to a probable cause determination because the validity of a search may reflect the collective knowledge of all the agents involved in the search. See United States v. Bernard, 623 F.2d at 560. While Agent Higgins primarily searched for illegal aliens, evidence of narcotics suggests that "an offense has been or is being committed." Brinegar, 338 U.S. 160, 175, reh'g denied, 338 U.S. 839 (1949).

These factors alone might not be sufficient to find probable cause. Probable cause, however, must be considered in the context of the search. The search occurred on a known smuggling route at 4:30 in the morning. In terms of the circumstances confronting a prudent border patrol agent, this series of seemingly innocent events had proceeded to the point where Agent Higgins could properly determine that probable cause existed to search Lizarraga's pickup truck. See United States v. Patterson, 492 F.2d at 997.

AFFIRMED.