Unpublished Disposition, 932 F.2d 973 (9th Cir. 1991)

MEMORANDUM^* 

David Lentz appeals the district court's denial of his motion to suppress evidence and challenges the constitutionality of his sentence. Lentz was convicted after a jury trial of conspiracy to possess a controlled substance with intent to distribute, 21 U.S.C. §§ 841(a) (1) and 846 and possession of a controlled substance with intent to distribute, 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2. Richard Leverich appeals his conviction on the same counts. We affirm.

* Lentz contends that the district court erred in failing to suppress evidence of the drugs, which he claims was obtained through an improper search. We disagree. Both the referral of the car to secondary inspection and the search were justified.

Border Patrol agents have wide discretion in selecting motorists to be diverted to secondary inspection. United States v. Martinez-Fuerte, 428 U.S. 543, 563-64 (1976). The agents in this case observed facts which reasonably led them to suspect illegal activity.

At secondary inspection, Lentz consented to an exterior search by a dog. Once the dog "alerted" on the car, the agents had probable cause to search the vehicle. United States v. Ayarza, 874 F.2d 647, 651 (9th Cir. 1989), cert. denied, 110 S. Ct. 847 (1990). The discovery of drugs in one section of an automobile was evidence that the car might contain other contraband. See United States v. Loucks, 806 F.2d 208 (10th Cir. 1986); United States v. Burnett, 791 F.2d 64 (6th Cir. 1986); United States v. Orozco, 715 F.2d 158 (5th Cir. 1983). The agents therefore had probable cause to search the trunk.¹ 

Finally, if the agents had probable cause to search the car for contraband, they also were entitled to open containers discovered inside without a warrant. United States v. Ross, 456 U.S. 798, 825 (1982); United States v. Johns, 469 U.S. 478, 479-80 (1985). Lentz's reliance on United States v. Salazar, 805 F.2d 1394 (9th Cir. 1986) and United States v. Chadwick, 433 U.S. 1 (1977) is misguided. In each of those cases, the police's original suspicion focused on the container. Here, suspicions had narrowed to the container only because the rest of the vehicle had already been searched. See United States v. Klein, 860 F.2d 1489, 1494 (9th Cir. 1988). To accept Lentz's reasoning would be to merely instruct the police to search all containers first, before looking at the rest of the vehicle.

II

Lentz also challenges his sentence. The constitutionality of minimum mandatory sentences has been consistently upheld. See e.g. United States v. Hoyt, 879 F.2d 505, 512-14 (9th Cir. 1989); United States v. Cook, 859 F.2d 777 (9th Cir. 1988); United States v. Savinovich, 845 F.2d 834, 838-40 (9th Cir. 1988). Contrary to Lentz's arguments, the minimum mandatory sentence applies to first time offenders, Hoyt, 879 F.2d at 511, and to "mules," Cook, 859 F.2d at 779. There is no merit to Lentz's arguments.

III

Leverich claims that he was prejudiced by the district court's denial of his motion to produce corroborating testimony from border agent Holmes. There is no evidence, however, that Leverich attempted to serve agent Holmes with a subpoena. Nor did Leverich allege that Holmes would in any way contradict agent Prat's testimony, although Leverich's counsel acknowledged that he had spoken with Holmes on the phone. The judge did not abuse his discretion.

Equally meritless is Leverich's assertion that he was substantially prejudiced because the government did not produce the lock to the trunk. Prat testified that he had tried the key and that it fit. Furthermore, the defense had an opportunity to argue to the jury that the failure to produce the lock adversely affected Prat's credibility. The evidence is sufficient if " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Adler, 879 F.2d 491, 495 (9th Cir. 1988) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). Leverich was not substantially prejudiced.

AFFIRMED