Unpublished Disposition, 936 F.2d 580 (9th Cir. 1990)

No. 90-50431.

United States Court of Appeals, Ninth Circuit.

Before CANBY and RYMER, Circuit Judges, and LEVI^** , District Judge.

MEMORANDUM^*** 

The district court denied Jose Maria Cortez-Soto's motion to suppress evidence obtained from a consensual search at a fixed United States Border Patrol checkpoint secondary referral area. Cortez-Soto appeals. We affirm the district court's denial.

Facts

On January 24, 1990, Cortez-Soto approached the primary inspection lanes at the United States Border Patrol Highway 111 checkpoint near Nyland, California. The Border Patrol Agent, Agent Kohlman, noticed that Cortez-Soto appeared to be of Hispanic descent and spoke only Spanish. In addition, Cortez-Soto appeared to be very nervous; his hands shook, he fidgeted, and he avoided eye contact with the agent. Cortez-Soto presented his I-688 immigration form, but Agent Kohlman initially was unable to match the photograph on the form with Cortez-Soto's face. Agent Kohlman was aware of numerous instances where illegal aliens recently had presented immigration cards belonging to other people. As a result of all these factors, Agent Kohlman asked Cortez-Soto who owned the car he was driving and where he was coming from. Cortez-Soto told Agent Kohlman that he owned the car himself and that he had driven from Mexicali, Mexico. Suspecting that Cortez-Soto was smuggling either drugs or illegal aliens, Agent Kohlman referred Cortez-Soto to the secondary inspection area.

At the secondary inspection area, Agent Kohlman was able to verify that Cortez-Soto was the person in the photograph on the I-688. Cortez-Soto, however, continued to act extremely nervous. Agent Kohlman believed the only reason for Cortez-Soto's nervousness was that the car contained illegal aliens or contraband. Agent Kohlman asked permission to search the car. Cortez-Soto consented. Upon looking in the back seat of the car, Agent Kohlman noticed that the texture of the back seat was suspicious. A dog, trained in alerting in the presence of either drugs or hidden people, alerted when near the rear seat area of the car. This prompted the agents to remove the rear seat; they found approximately nineteen kilograms of cocaine. It was later discovered that Cortez-Soto's fingerprints were on the cocaine packages and that he had a smaller quantity of cocaine in his wallet.

Analysis

Cortez-Soto relies on United States v. Martinez-Fuerte, 428 U.S. 543 (1976), to argue that the referral here was illegal, and thus everything discovered after that referral is tainted and must be suppressed. Martinez-Fuerte validated stops for brief questioning routinely conducted at permanent checkpoints, such as the Nyland checkpoint where Cortez-Soto was stopped. See Id. at 566. Kohlman's brief initial questioning of Cortez-Soto, and his referral of Cortez-Soto to a secondary inspection for further brief question was valid under Martinez-Fuerte, even in the absence of any individualized suspicion. See id. at 562. Cortez-Soto acknowledges that Martinez-Fuerte allows stops for brief and nonintrusive inquiry into immigration status without individualized suspicion. He insists, however, that such stops must be motivated solely by concern for immigration-related offenses. He asserts that Kohlman's stop was motivated by both immigration-related concerns and drug-related concerns; the presence of this second concern, contends Cortez-Soto, invalidates the stop. We disagree. An otherwise valid stop does not become invalid merely because the officer or agent has intuitive suspicions that the occupants may be engaging in a second offense not addressed by the Martinez-Fuerte type search.¹  The Supreme Court has told us that we are to make "an objective assessment of the [agent]'s actions," rather than delve into the agent's state of mind. Scott v. United States, 436 U.S. 128, 136, 137 (1978) (adopting government's objective analysis as correct one). The Court has left little doubt that the agent's "actual state of mind at the time the challenged action was taken," Maryland v. Macon, 472 U.S. 463, 470-71 (1985), is of no significance in determining whether a violation of the Fourth Amendment has occurred.²  In this case, the agent's referral of Cortez-Soto to the secondary area was objectively reasonable. Agent Kohlman had a legitimate reason--the immigration-related concern--to refer Cortez-Soto to secondary.

Moreover, the search that followed at the secondary area is clearly permitted by the Fourth Amendment. Cortez-Soto does not contest the fact that he consented to Kohlman's search of the trunk and the interior of his car. The search of Cortez-Soto's car, and the seizure of the drugs found in that search, were valid under the Fourth amendment. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (citations omitted).

We affirm the judgment of the district court.

AFFIRMED.