Unpublished Disposition, 921 F.2d 281 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 281 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Jerry Henry HENDERSON, Defendant-Appellant.

No. 89-50126.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 6, 1990.* Decided Dec. 5, 1990.

Before SCHROEDER, WIGGINS and LEAVY, Circuit Judges.


MEMORANDUM** 

Jerry Henderson challenges the district court's denial of his motion to suppress incriminating evidence and statements obtained at an immigration checkpoint. Henderson claims that his fourth amendment rights were violated because the border patrol agent did not have individualized, founded suspicion to stop his vehicle. We affirm.

FACTS

On June 25, 1989, Border Patrol Agent George Prat saw a yellow Camaro approach the permanent immigration checkpoint at Temecula, California. Prat suspected that the yellow Camaro was the same car that had been driven a few days earlier by Tracy Morocco, a convicted drug smuggler. Prat motioned the car to stop. Prat recognized the car's license plate and noticed that the driver, Henderson, looked "just a little bit nervous." He asked Henderson to drive to the secondary inspection area. Prat then confirmed his suspicion that the license plate number of Henderson's car was the same as that of the car driven by Morocco.

At the secondary inspection point, Prat asked Henderson if he knew Tracy Morocco. Henderson admitted that she was a friend of his and that she had driven his car recently. Prat asked no questions regarding Henderson's or his passenger's immigration status. Prat then inspected the trunk, interior, and hood of the car with Henderson's consent and cooperation. Prat found a black pouch containing methamphetamine under the hood of the car. Henderson also made certain incriminating statements to Prat. Henderson was subsequently convicted of one count of possession of a controlled substance with intent to distribute.

DISCUSSION

Henderson's primary contention is that the fourth amendment requires a border patrol agent to have individualized, founded suspicion in order to stop an individual at an immigration checkpoint for non-immigration purposes. Because Agent Prat was motivated by his suspicions of drug smuggling, rather than immigration violations, Henderson claims that the stop exceeds the scope authorized by the Supreme Court in United States v. Martinez-Fuerte, 428 U.S. 543 (1976). However, we need not resolve this issue, because we find that Agent Prat did have individualized, founded suspicion to justify the stop.

Agent Prat testified that Henderson appeared "nervous" and avoided eye contact with him. Prat also testified that Henderson's passenger was looking at Prat and the border patrol agent in the next lane. While it is true that lack of eye contact does not in and of itself provide founded suspicion, avoidance of eye contact is somewhat probative when law enforcement officials are directly in the line of vision. Nicacio v. INS, 797 F.2d 700, 704 (9th Cir. 1985); United States v. Nikzad, 739 F.2d 1431, 1433 (9th Cir. 1984); United States v. Vasquez-Cazares, 563 F.2d 1329, 1330 (9th Cir. 1977), cert. denied, 434 U.S. 1021 (1978). In addition, Prat suspected that the yellow Camaro driven by Henderson was the same car driven a few days earlier by Tracy Morocco, a convicted drug smuggler. The fact that a known drug dealer had driven the car recently added to Prat's suspicions. In light of these circumstances, we cannot say that the district court erred in finding that founded suspicion existed for detaining Henderson's vehicle. See United States v. Corral-Villavicencio, 753 F.2d 785 (9th Cir. 1985) (founded suspicion existed where car was driven by man but registered to woman and had been driven through canyon park in ten minutes); Nikzad, 739 F.2d 1431 (founded suspicion where individual exhibited nervous behavior at airline terminal). Once Henderson's car was properly detained, Henderson himself volunteered incriminating statements and consented to the search which uncovered the contraband. The district court properly denied Henderson's motion to suppress.

AFFIRMED.

 *

The panel finds this case appropriate for submission without argument pursuant to Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3