Unpublished Disposition, 872 F.2d 431 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 872 F.2d 431 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Joel PULIDO, Defendant-Appellant.

No. 88-5252.

United States Court of Appeals, Ninth Circuit.

Submitted*  March 7, 1989.Decided March 22, 1989.

Before SNEED, FARRIS and PREGERSON, Circuit Judges.


MEMORANDUM** 

Joel Pulido, the defendant-appellant, appeals his conviction following a jury trial for possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a) (1). Prior to trial, Pulido unsuccessfully moved to suppress evidence gathered during the U.S. Border Patrol's detention and search of him and his vehicle at the San Clemente Border Patrol Checkpoint. On appeal, Pulido argues that the detention and search were illegal. We affirm.

We review de novo the district court's determination that the necessary level of suspicion existed to detain or search at a fixed checkpoint; the facts used in reaching that conclusion are reviewed under the clearly erroneous standard. People of the Territory of Guam v. Ichiyasu, 838 F.2d 353, 355 (9th Cir. 1988); see also United States v. Thomas, 863 F.2d 622, --- (9th Cir. December 22, 1988) (No. 86-1353, slip op. 15445, 15452) (motions to suppress generally reviewed de novo). We review the credibility choices made by the district court at a suppression hearing under the clearly erroneous standard. United States v. Clawson, 831 F.2d 909, 914 (9th Cir. 1987), cert. denied, 109 S. Ct. 303 (1988).

Border Patrol agents have wide discretion to detain vehicles at fixed checkpoints. United States v. Martinez-Fuerte, 428 U.S. 543, 560-64 (1976). The detention of vehicles at the checkpoints need not satisfy the requirements of reasonable, individualized suspicion. Id. Pulido's erratic driving and nervous manner justified his referral to secondary inspection.

A law enforcement officer may order a suspect to get out of a vehicle during a stop in order to protect the officer's safety. Pennsylvania v. Mimms, 434 U.S. 106, 110-11 (1977). The agents' request that Pulido leave his car during the stop at the secondary inspection station was reasonable under the circumstances.

A search conducted with proper consent is permissible under the Fourth Amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Pulido argues that the subsequent search of his vehicle was illegal because his consent was not freely given.

The voluntariness of consent is a question of fact to be determined by examining the totality of the surrounding circumstances. Schneckloth, 412 U.S. at 227; United States v. Castillo, No. 87-5042, slip op. 159, 180 (9th Cir. January 11, 1989); United States v. Sealey, 830 F.2d 1028, 1032 (9th Cir. 1987). At the secondary inspection area, the agent asked Pulido, "Do you mind if I look inside the vehicle?" After Pulido responded, "It doesn't matter," the agent repeated the question and Pulido answered, "Yeah, sure, go ahead." Pulido points to no circumstances calling into question the voluntariness of his answer, other than the presence of the two agents and the fact of his detention in the secondary inspection area. Those circumstances are not enough to show duress or coercion. See Schneckloth, 412 U.S. at 248; cf. Florida v. Royer, 460 U.S. 491, 501-05 (1982) (defendant's license, ticket, and luggage seized; officers' conduct more intrusive than necessary to effectuate investigative detention). The district court did not err in concluding that the government met its burden of proving that consent was voluntary.

A limited pat-down search for weapons is justified if the officer reasonably concludes, based on the facts available to him at the time, that the person stopped may be armed and dangerous. Mimms, 434 U.S. at 111-12, citing Terry v. Ohio, 393 U.S. 1, 21-22. The pat-down search of Pulido was reasonable because the agent found a box of .45-caliber ammunition inside the vehicle in plain view and then observed Pulido step back and place his hands behind his back and under his jacket. During the pat-down, the agent felt a hard object that potentially might have been a knife but in fact was a tightly rolled plastic bag containing a white powder, later determined to be methamphetamine. Given these facts, safety concerns justified the officer's search of Pulido. See Mimms, 434 U.S. at 112.

The further search of the vehicle's passenger compartment, following the discovery of the plastic bag, was permissible as a search incident to arrest. New York v. Belton, 453 U.S. 454, 460 (1981); United States v. Lorenzo, Jr., No. 88-1128, slip op. 1135, 1137-38 (9th Cir. Feb. 9, 1989).

AFFIRMED.

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The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3