United States of America, Plaintiff-appellee, v. Stuart Reinhardt, Defendant-appellant.united States of America, Plaintiff-appellee, v. Michael J. Palumbo, Jr., Defendant-appellant, 980 F.2d 740 (9th Cir. 1992)

MEMORANDUM^* 

The Border Patrol agents were entitled to refer the defendants to the secondary checkpoint even without any particularized suspicion. United States v. Martinez-Fuerte, 428 U.S. 543 (1976); United States v. Barnett, 935 F.2d 178, 181-82 (9th Cir. 1991). Had defendants shown that the agents were looking only for drug violations, not immigration violations, the result might be different. Id. at 181. But without some such evidence we won't infer the agents had an improper motivation. Id.

Reinhardt and Palumbo argue the agents should have let them go once the agents were satisfied they were citizens. But even citizens can smuggle aliens in their trunks, and the agents were entitled to investigate this possibility. Once the agents perceived that Reinhardt was nervous, that Palumbo wouldn't make eye contact even when spoken to, and that the car was riding low in the rear, I RT 25-26, they had the minimal suspicion needed to detain the car for a brief dog sniff (by a dog trained to detect both drugs and hidden people, I RT 30).¹  United States v. Taylor, 934 F.2d 218, 221 (9th Cir. 1991), cert. denied, 112 S. Ct. 971 (1992) (dog sniff permissible on showing of "minimal, articulable suspicion," which could be based even on nothing more than the driver's nervousness).²  Finally, once the dog alerted on the trunk, the agents had probable cause to search the car. United States v. Mondello, 927 F.2d 1463, 1471 (9th Cir. 1991).

AFFIRMED