United States of America, Plaintiff-appellee, v. Javier Valenzuela-portillo, Defendant-appellant, 985 F.2d 577 (9th Cir. 1993)

MEMORANDUM^** 

Javier Valenzuela-Portillo (Valenzuela) appeals the district court's denial of his motion to suppress six kilograms of cocaine and slightly less then one kilogram of heroin found in a suitcase carried by his co-defendant, Martin Portillo-Lopez (Portillo), after a search by an immigration agent at Seattle-Tacoma International Airport (Sea-Tac). Valenzuela's motion was denied on the grounds that he lacked standing to object to the search and both he and Portillo consented to the search.

Valenzuela argues that prior to the search of the suitcase he was unlawfully detained by Agent Cook. We disagree. Absent restraint on a suspect's freedom of action, a temporary investigatory stop does not rise to the level of a "seizure" of the person under the Fourth Amendment. United States v. Safirstein, 827 F.2d 1380, 1383 (9th Cir. 1987). Officers may approach an individual in a public place and ask him questions if he is willing to answer. See Florida v. Royer, 460 U.S. 491, 497 (1983). Only when the agent curtails freedom of action, by way of physical force or a display of authority, has a seizure occurred. Safirstein, 827 F.2d at 1383.

The district court found, as a matter of fact, that Cook, in plain clothes, approached Valenzuela and Portillo in a public place, identified himself as an immigration officer, and, speaking in Spanish, asked if he could speak with them and asked for their place of birth. Both men answered, "Mexico." Cook asked Valenzuela and Portillo to step aside of pedestrian traffic and speak with him further. Both agreed and walked with Cook to a spot approximately 15 feet away. The district court rejected Valenzuela's testimony that he followed Cook to the second location because Cook threatened to shoot him if he refused. It was not clear error to reject this testimony.

Cook's actions in stopping and questioning Valenzuela did not amount to a seizure of his person. Rather, Valenzuela consented to the initial questioning. Once Valenzuela consensually told Cook that he was born in Mexico, Cook was entitled to ask Valenzuela to produce proof that he was lawfully in this country. See INS v. Delgado, 466 U.S. 210, 215-16 (1984); 8 U.S.C. § 1357(a) (1). He was also entitled to retain custody of Valenzuela's documentation for a reasonable period of time to determine its validity.¹  Finally, the physical movement of Valenzuela to a location 15 feet away did not render the encounter an investigative detention. See Safirstein, 827 F.2d at 1383.

As Valenzuela was not illegally detained by Cook, and Valenzuela abandoned any privacy interest in the drugs by disclaiming ownership of the suitcase, see United States v. Veatch, 674 F.2d 1217, 1220-21 (9th Cir. 1981), the district court did not err in determining that Valenzuela lacked standing to object to the search of the suitcase.

Lastly, Valenzuela alternatively argues that any consent was not voluntarily given because an insufficient amount of time passed between the illegal seizure of both men and the consent to search; as such, the actions of the men constituted "mere submission to a claim of lawful authority," condemned in Royer. However, as discussed above, Valenzuela was not illegally detained. The district court rejected Valenzuela's testimony that he refused consent to search the suitcase and that, while he could not understand whether Portillo consented to the search of the suitcase in English, he heard Portillo refuse consent in Spanish. It was not clear error to reject this testimony. We affirm the district court's finding that Valenzuela's consent to the search of the suitcase was voluntary.

CONCLUSION

The district court's denial of Valenzuela's motion to suppress is AFFIRMED.