Unpublished Disposition, 883 F.2d 1025 (9th Cir. 1987)

MEMORANDUM^** 

Vincent L. Fields (Fields) appeals his conviction of one count of conspiracy to possess cocaine and one count of possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a) (1), 846. Fields contends that the district court erred in denying his motion to suppress evidence seized from his vehicle because the vehicle search was unlawful.

Because the government had consent to search Fields' car, the district court properly denied Fields' motion to suppress the evidence. See United States v. Ortiz, 422 U.S. 891, 896-97 (1975) (Ortiz) .

FACTS

On March 16, 1987, Vincent Fields (Fields) and codefendant Santos Alberto Willis (Willis) were arrested after border patrol agents at a fixed checkpoint found cocaine in the trunk of Fields' car. The government indicted Fields, charging him with one count of conspiracy to possess cocaine and one count of possession with intent to distribute cocaine, all in violation of 21 U.S.C. §§ 841(a) (1), 846. Fields plead not guilty to both counts.

Fields filed a motion to suppress evidence alleging that the border patrol agents illegally searched his vehicle. At the suppression hearing, border patrol agent Fields testified that Fields' car was stopped at the primary inspection area because it was traveling slowly and then sped up as it approached the checkpoint, as if to not stop at the checkpoint. The agent also stated that Willis, Fields' passenger, wore unkempt clothing and had not shaved, leading the agent to suspect that he was an illegal alien. In addition, both Fields and Willis acted "nervous." Because the agent suspected that Willis may have been an illegal alien, the agent requested Fields to drive to the secondary inspection area.

While the vehicle was moving from the primary inspection area across the stopped lane of traffic to the secondary inspection area, Agent Gonzales observed Willis mouth the words "Oh, shit."

At the secondary inspection area, Agent Gonzales asked Fields to open his trunk. Fields testified that he responded that the lock was broken and did not explicitly consent to a search of the trunk. However, Agent Gonzales testified that when Fields was asked for permission to open the trunk he first responded that he could not, but then upon being asked for consent again Fields responded "sure, go ahead." The agent then used a penknife to open the trunk. The agent asked Fields if he could search the area underneath the trunk where the spare tire was kept, suspecting an alien was concealed there. Fields replied "yes." The agent searched this area and found a gun. The agent saw a four-by-two-inch compartment in the side area of the trunk where a speaker is often placed. The screws on the compartment were loosened and the agent asked Fields if he could inspect this area to which Fields replied "yeah, go ahead." The agent opened this compartment and found a white crystal substance that was later determined to be cocaine.

The district court denied Fields' motion to suppress evidence on the ground that Fields has consented to the border patrol agents' search of the trunk. After a jury trial, the jury entered a guilty verdict against Fields on both counts. The court sentenced Fields to 10 years imprisonment for each count, the terms to run concurrently. Fields timely appeals.

A district court's decision to grant or deny a motion to suppress is reviewed de novo. United States v. Miller, 812 F.2d 1206, 1208 (9th Cir. 1987). A district court's determination whether a defendant voluntarily consented to a search is subject to a clearly erroneous standard of review. United States v. Salvador, 740 F.2d 752, 757 n. 3 (9th Cir. 1984), cert. denied, 469 U.S. 1196 (1985) (citation omitted). Under the clearly erroneous standard of review an appellate court must accept the lower court's findings of fact unless upon review the appellate court is left with the definite and firm conviction that a mistake has been committed. Johnson v. United States Postal Service, 756 F.2d 1461, 1464 (9th Cir. 1985).

Fields contends that the district court erred in determining that he consented to a search of his trunk. This contention is without merit.

A border patrol agent can briefly detain and question an individual at a traffic checkpoint without reasonable suspicion of wrongdoing. United States v. Martinez-Fuerte, 428 U.S. 543, 562 (1976). A search of a vehicle at a traffic checkpoint, however, requires either consent or probable cause to be valid under the fourteenth amendment. Ortiz, 422 U.S. at 896-97. Cf. Florida v. Royer, 460 U.S. 491, 502 (1983) (plurality opinion) (if defendant, legally detained on reasonable suspicion, had consented to search of luggage, the products of search would be admissible).

In the present case, agents testified that Fields explicitly authorized a search of the trunk of his vehicle, after initially denying he had the means to open the trunk himself. The agents further testified that Fields consented to the exploration of the tire compartment in the trunk where cocaine was found. There are no apparent grounds for overturning the district court's factual findings that these agents' testimony was credible. Therefore, the search was lawful. See Ortiz, 422 U.S. at 896-97. Cf. United States v. Patacchia, 602 F.2d 218, 219 (9th Cir.), amended by 610 F.2d 648 (9th Cir. 1979) (search of car's trunk at traffic checkpoint not legal where driver gave no specific consent to search).

AFFIRMED.