Unpublished Disposition, 936 F.2d 581 (9th Cir. 1991)
Annotate this CaseNo. 90-50161.
United States Court of Appeals, Ninth Circuit.
Before CANBY and RYMER, Circuit Judges, and LEVI,* District Judge.
MEMORANDUM**
Daniel Perez challenges the denial of his motion to suppress evidence obtained as a result of the search of his automobile at the fixed immigration checkpoint at Temecula, California. We affirm.
Background
Perez was stopped at night by Border Patrol Agent Prat at the Temecula checkpoint. Prat shined his flashlight into the interior of Perez's car and observed three automobile deodorant devices. Prat stated that he knows from his training that deodorant devices are commonly used by drug smugglers to mask the smell of drugs. Throughout this encounter, Perez avoided eye contact with Prat by staring straight ahead.
Prat asked Perez to roll down his window. When Prat bent down to talk to Perez, he detected the chemical smell associated with methamphetamine. Prat then directed Perez to drive to the secondary inspection area. Prat followed Perez to the secondary inspection area, where he again smelled methamphetamine coming from inside the car. Prat asked Perez for permission to do a canine perimeter inspection on the car. Prat stated that Perez granted that permission. Perez denied that he granted permission. The dog, trained to "alert" to drugs and to people, alerted to Perez's car.
Thereupon, Prat asked for permission to search the interior of Perez's car. Prat stated that Perez granted that permission. Perez denied that he granted permission. Prat searched the car and found drugs and guns.
After being indicted for possessing the drugs and guns, Perez moved to suppress the evidence seized in the search. The district court denied the motion to suppress, ruling that no articulable suspicion was required for either the stop or the referral to secondary. The district court alternately ruled that, if articulable suspicion were required, Prat had sufficient articulable suspicion to refer to the secondary inspection area. The district court further found that Perez had consented to both searches. Perez pleaded guilty, conditioned upon this appeal of the denial of his motion to suppress.
Discussion
Perez does not base this appeal on his alleged denials of permission to perform the canine and interior searches of his car. He argues instead that the evidence should have been suppressed because the initial stop and referral to the secondary inspection area violated the fourth amendment. We disagree.
In U.S. v. Martinez-Fuerte, 428 U.S. 543 (1976), the Supreme Court held that routine, brief and non-intrusive stops of motorists at fixed checkpoints such as Temecula, to inquire about the possibility of immigration-related offenses, do not violate the fourth amendment. Martinez-Fuerte expressly cautioned that "our holding today is limited to the type of stops described in this opinion." Id., at 567.
Agent Prat's stop and initial questioning of Perez is exactly the type of stop described in Martinez-Fuerte. Agent Prat was authorized under Martinez-Fuerte to stop Perez without any articulable suspicion, and ask him a question or two. Id., at 562. Asking Perez to roll down his window to facilitate that questioning is clearly within the scope of that authorization. Prat's observation of room deodorizers in Perez's car before asking him to roll down his window is immaterial, since his conduct conformed to that authorized by Martinez-Fuerte. United States v. Watson, 678 F.2d 765, 771 (9th Cir.), cert. denied, 459 U.S. 1038 (1982).1
Martinez-Fuerte also authorized Prat to refer Perez to secondary inspection, without any articulable suspicion, for similar brief questioning. Id., at 563; United States v. Barnett, No. 90-50080, slip op. at 6958-59 (9th Cir. June 5, 1991). Even if articulable suspicion were required for referral to secondary, the basis for such suspicion was amply established by the odor associated with amphetamine, augmented by Prat's observation of the deodorizers and Perez's avoidance of eye contact. Johnson v. United States, 333 U.S. 10, 13 (1948); United States v. Kerr, 876 F.2d 1440, 1445 (9th Cir. 1989).
The district court found that, once in the secondary inspection area, Perez consented to the canine and interior inspections of his car, resulting in the seizure of the drugs and guns. Perez does not appeal that finding.
CONCLUSION
The judgment of the district court's is AFFIRMED.
The Honorable David F. Levi, United States District Judge for the Eastern District of California, sitting by designation
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3
In Watson we affirmed a denial of a suppression motion, stating:
We assume that the administrative plan which led to the boarding of the [vessel] was motivated partly by suspicion of drug smuggling. However, the stop and search had an independent administrative justification, and did not exceed in scope what was permissible under that administrative justification. Therefore, we need not consider any criminal enforcement interest the Coast Guard may have had.
678 F.2d at 771.
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