Unpublished Disposition, 928 F.2d 1137 (9th Cir. 1991)

No. 90-50509.

United States Court of Appeals, Ninth Circuit.

On Appeal From the United States District Court for the Southern District of California, No. CR-90-0113-01-JLI; J. Lawrence Irving, District Judge, Presiding.

S.D. Cal.

AFFIRMED.

Before BEEZER and NOONAN, Circuit Judges, and SINGLETON^**  District Judge.

MEMORANDUM^*** 

Michael Franzenburg entered a conditional plea of guilty to possession of a controlled substance with the intent to distribute. He now appeals the district court's denial of his motion to suppress evidence and statements. Franzenburg also challenges the constitutionality of the Sentencing Guidelines. We affirm.

* On January 24, 1990, at approximately 2:00 a.m., Franzenburg approached the permanent United States Boarder Patrol Checkpoint (Checkpoint) located at Temecula, California in a 1988 Nissan Pathfinder. A Boarder Patrol Agent stopped the vehicle and asked Franzenburg and his passenger from where they had come. Franzenburg replied "San Diego" while his passenger replied "Las Vegas." The agent repeated his question and this time Franzenburg replied "Las Vegas" while his passenger replied "San Diego." Because the motorists had given different answers and appeared nervous, the agent directed them to the secondary inspection area.

At secondary, another agent asked the men about their immigration status and noted that they appeared extremely nervous and talkative. He also noticed an empty gun holster in the front seat of the vehicle between the two men. The agent asked the two men to exit the vehicle and performed a pat-down. During the pat-down, the agent felt a bulge in the left inside pocket of Franzenburg's open jacket. He saw a clear plastic bag containing white powder which he associated with narcotics. At this point, the two men were taken into custody. The white powder was 361 grams of methamphetamine; the agents also found $7,179 in United States currency on Franzenburg's person.

Franzenburg entered a conditional plea of guilty, to possession of a controlled substance with intent to distribute. Franzenburg has timely appealed the district court's denial of his motion to suppress. We have jurisdiction pursuant to 28 U.S.C. § 1291.

II

Franzenburg first contends that he was directed to secondary inspection for insufficient reasons and thus the order sending him to secondary was an unlawful seizure within the meaning of the Fourth Amendment. He asserts that because he and his passenger are white and his vehicle is open to visual inspection through the windows, there was no immigration concern that would support further inquiry at secondary inspection. According to Franzenburg, the agent should have simply ascertained the motorists' immigration status and then sent them on their way.

We review de novo the legality of a search and seizure. United States v. Linn, 880 F.2d 209, 215 (9th Cir. 1989). Franzenburg's position that the Border Patrol Agent had insufficient reasons for directing him to secondary is not supported by case law. The agent did not have to have any particularized reason to refer Franzenburg to secondary inspection. United States v. Martinez-Fuerte, 428 U.S. 543, 563 (1976).

Franzenburg next contends that the pat-down was an illegal seizure. We review de novo the legality of a frisk. United States v. Thomas, 844 F.2d 678, 680 (9th Cir. 1988). As the Supreme Court stated in Terry v. Ohio, 392 U.S. 1 (1968):

When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.

Id. at 24. In this case, the agent saw an empty gun holster lying between the two men. He therefore had reason to believe that he was dealing with armed and dangerous individuals and was justified in performing the frisk. See id. at 27; United States v. Garcia, 909 F.2d 389, 391-392 (9th Cir. 1990).

While performing the frisk, the agents felt and saw a plastic bag containing a white powder. Based on what he saw and his experience the agent had probable cause to believe the bag contained narcotics. As an object within the plain view of an officer who was legally in position to have that view, the bag was subject to seizure. See United States v. Sedillo, 496 F.2d 151 (9th Cir.), cert. denied, 419 U.S. 947 (1974).

Franzenburg also objects to the admissibility of certain statements. He contends the statements should be suppress because they are the fruit of an unlawful search and seizure, and he contends that he made the statements without voluntarily waiving his Miranda rights. As noted above, the search and seizure was not unlawful. Moreover, Franzenburg did not raise the issue concerning his Miranda rights at the district court, and therefore we will not consider it on appeal. See Jovanovich v. United States, 813 F.2d 1035, 1037 (9th Cir. 1987).

Accordingly, the district court correctly denied the motion to suppress evidence and statements. Because we conclude that the search and seizure was lawful, we do not address Franzenburg's challenge of the operation of the permanent Checkpoints.

Finally, Franzenburg contends that the federal sentencing guidelines violate his constitutional due process rights by placing too many restrictions on the discretion of the sentencing judge. In United States v. Brady, 895 F.2d 538 (9th Cir. 1990), we rejected this same argument. Franzenburg also relies on United States v. Davis, 715 F. Supp. 1423 (C.D. Cal. 1989), for his contention that the sentencing guidelines violate his due process rights by failing to set standards of proof to govern the factors a sentencing judge may rely on in determining the appropriate guideline level. We rejected that court's conclusion in United States v. Ramos, No. 89-50242, slip op. (9th Cir. Jan. 17, 1991).

AFFIRMED.