Unpublished Disposition, 907 F.2d 155 (9th Cir. 1990)

MEMORANDUM^* 

The appellant entered a conditional plea of guilty to possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a) (1). He preserved the right to appeal the denial of his suppression motion. Appellant sought to suppress the introduction in evidence of the marijuana discovered in his automobile on two grounds: (1) the border patrol agents did not have the required reasonable suspicion to stop his vehicle and (2) the appellant did not voluntarily consent to the search of the automobile after it was stopped.

We conclude that the stop of the automobile was justified by reasonable suspicion. The appellant was observed driving slowly north from a driveway servicing four houses, toward the highway, at 6:00 a.m. Three men observed to be of Mexican nationality were walking away from the rear of the vehicle toward the Mexican Border, which was 20-to-25 yards away. There were no other houses or buildings of any kind between the vehicle and the border, which consisted of a fence with holes in it. There was no apparent reason for these men to walk toward the border fence other than to return to Mexico, as there was no activity in that area. The area was known to the agents to be notorious for smuggling of aliens and drugs. The agents stated that 6:00 a.m. was an unusual hour for legitimate residents to be out and about. The appellant's vehicle, which had not been seen by the agents in the area before, was registered to a Long Beach address. The appellant drove from that area, headed north on Interstate 5 toward Long Beach. The agent had a reasonable suspicion that the men leaving the vehicle and heading toward the border had either placed undocumented aliens and/or contraband into the appellant's vehicle and that the appellant was heading north to deliver those people or contraband. The agents therefore had a founded suspicion to stop the vehicle. See United States v. Corral-Villavicencio, 753 F.2d 785, 789 (9th Cir. 1985); United States v. Rocha-Lopez, 527 F.2d 476, 478 (9th Cir. 1975), cert. denied, 425 U.S. 977 (1976).

The vehicle was stopped by the agents and the evidence proffered by the Government at the time of the pretrial motion was that the appellant voluntarily consented to the search of the vehicle he was driving. This proffer established that the appellant, while being briefly detained, was cooperative to the agents, that he freely and voluntarily answered questions to the agents, and provided INS documentation. Neither agent had his gun drawn nor acted in a coercive manner, the appellant was not under arrest, and there was no indication that the appellant was unaware of what was taking place or was unable to voluntarily consent to a search of his suitcase in the vehicle. The appellant did not provide any evidence to counter this proffered evidence by the Government. We conclude that the failure to dispute those facts requires a finding that the consent was voluntary. See United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir. 1988).

We therefore affirm the district court's order denying the suppression motion.

AFFIRMED.