65 F.

3d 843

UNITED STATES of America, Plaintiff-Appellant,

v.
Donald Albert MASSIE and Carson Lewis, DefendantsAppellees.
No. 95-2030.

United States Court of Appeals,

Tenth Circuit.
Sept. 11, 1995.
Rehearing Denied Oct. 12, 1995.

Vicki S. Marani, Attorney, Criminal Division, Department of Justice,

Washington, DC (John J. Kelly, United States Attorney, Albuquerque,
NM, with her on the brief), for plaintiff-appellant.
Carmen E. Garza (Stephen Stevers, with her on the brief), Las Cruces,
NM, for defendants-appellees.
Before TACHA, SETH, and BALDOCK, Circuit Judges.
BALDOCK, Circuit Judge.

The government appeals the district court's grant of Defendants Donald Albert
Massie's and Carson Lewis' motion to suppress evidence seized from their car
during a border patrol checkpoint stop. We exercise jurisdiction pursuant to 28
U.S.C. Sec. 1291 and reverse.

On June 23, 1994, Defendants pulled into the border patrol checkpoint on
Interstate 10 near Las Cruces, New Mexico. After verifying Defendants were
United States citizens, Border Patrol Agent Guillermo Torres asked Massie if
he owned the car he was driving. Massie replied "Yeah" and then stated "No,
it's a rental car." Agent Torres asked Massie for the rental agreement or other
documentation. Massie searched for the rental agreement, but could not find it.
Agent Torres asked Massie where he was coming from. Massie said he was
coming from Nacogdoches, Texas, then stated "No, I'm coming from Dallas,
Texas." Agent Torres directed Massie to the secondary inspection area. At this

point, Massie and Lewis had been in the primary inspection area for
approximately one minute.
3

Accompanied by Agent Brian May, who had been with him in the primary
area, Agent Torres advised Agent Michael Dalton he suspected the car might
be stolen. Agent Torres asked Agent Dalton to investigate further. Agent
Dalton proceeded to the secondary area and asked Massie if he had any
documentation on the car. Massie handed him a rental agreement, which
indicated the car had been rented to Barney Lawrence. Agent Dalton did not
notice that the rental agreement specified Massie was an additional authorized
driver of the car.

Agent Dalton asked Massie where he had come from. Massie replied that he
had come from Fort Smith, Texas. One of the agents said he had never heard of
Fort Smith and Massie replied that it was in the Dallas-Fort Worth area. Agent
Dalton asked Massie what he had been doing there. Massie replied that he was
visiting a friend. According to Agent Dalton, Massie appeared nervous during
this exchange because he did not make eye contact and spoke in a loud voice.

Agent Dalton asked Massie who had rented the car. After a few seconds
hesitation, Massie answered "Barney Lawrence." Agent Dalton asked Massie
for his driver's license. Massie started searching for it and Agent Dalton asked
him to step out of the car. Massie got out of the car and handed Agent Dalton
his license. Agent Dalton asked another agent to watch Massie while he talked
to Lewis.

Agent Dalton asked Lewis where he and Massie had come from. Lewis said
they had come from Burleson, Texas, where they were visiting Lewis' brother.
Agent Dalton walked back to Massie and asked him who he and Lewis had
been visiting. Massie said "he didn't know, just a friend," but could not recall
his name. When Agent Dalton asked if it was Lewis' brother, Massie replied,
"Yeah. Yeah, I guess. Yeah."

Lewis' and Massie's demeanor caused Agent Dalton to feel "that there was
something going on here" and made him "quite concerned" for himself and his
fellow agents. Agent Dalton asked Lewis to step out of the car and produce
some identification. Lewis produced a social security card and check-cashing
ID. Agent Dalton was suspicious because he had seen fraudulent documents of
that sort and did not consider them good identification.

Agent Dalton asked Lewis if there was anything in the trunk of the car. Lewis

replied that there was nothing in the trunk. Agent Dalton asked Massie the
same question and Massie replied "Yeah a suitcase. Our luggage." Agent
Dalton asked Massie for permission to search the trunk. Massie consented.
Agent Dalton opened the trunk and saw a black jacket, two black suitcases, and
a blue hard-sided suitcase.
9

Agent Dalton suspected the suitcases contained contraband because Lewis said
there was nothing in the trunk. He asked Defendants if the blue suitcase was
theirs. Defendants replied yes. Agent Dalton sent Agent May to the checkpoint
trailer to get the drug-detecting dog and asked Massie if he would allow the
dog to sniff the car. Massie replied "No, I'm in a hurry. I don't want you to."
Agent Dalton told Massie he was going to have the dog sniff the car anyway.

10

When the dog arrived, he alerted on the trunk. The agents removed all three
bags from the trunk. The dog sniffed the bags and alerted on the blue one. The
alert occurred seven to ten minutes after Agent Dalton directed Defendants to
the secondary inspection site.

11

Agent Dalton asked Defendants again if the blue suitcase was theirs. Massie
replied that they "actually found that suitcase." The agents asked Defendants if
they knew what was in the suitcase. Defendants said no. The agents opened the
suitcase, discovered marijuana and methamphetamine, and arrested Defendants.
Agent May searched the car and found a loaded firearm, some knives, a set of
handcuffs, a scanner, a cellular phone, and a small amount of LSD and
methamphetamine.

12

Defendants were charged by indictment with one count of possession of

marijuana with intent to distribute, 21 U.S.C. Sec. 841(a)(1), one count of
possession of methamphetamine with intent to distribute, 21 U.S.C. Sec. 841(a)
(1) and two counts of using and carrying a firearm during and in relation to a
drug-trafficking offense, 18 U.S.C. Sec. 924(c)(1). Defendants moved to
suppress the drugs, firearm, and other evidence seized from the car.

13

Following a hearing, the district court granted Defendants' motion to suppress.

The court found that Agent Torres' referral of Defendants to the secondary
inspection site was justified. The court concluded, however, that once
Defendants produced the rental agreement indicating Massie was an authorized
driver of the vehicle, the agents had no further reason to suspect the car was
stolen, and Defendants "should have been free to proceed on their way." Vol. I
at 5.

14

In response to the government's argument that there were suspicious

circumstances to justify the continued detention, the court noted that all the
border patrol agents testified that the only reason Defendants were detained was
that the agents suspected the car had been stolen. Because "[t]he car rental
agreement ... plainly showed that the agents' suspicions that the car had been
stolen were unfounded," id. at 11, the agents could justify continued detention
of Defendants only upon reasonable suspicion of criminal activity. The court
found "[n]othing about the demeanor of the Defendants" created reasonable
suspicion of criminal activity, and therefore the agents' continued detention of
Defendants "was unreasonable under all the circumstances and violated the
Fourth Amendment." Id. at 13.

15

Because Massie's consent to search was given during the illegal detention and
no intervening circumstances were present, the court concluded the government
failed to show Massie's consent was voluntary. As a result, the court granted
Defendants' motion to suppress the fruits of the illegal detention--i.e., the
evidence seized from their car. This appeal followed.

16

On appeal, the government contends the district court erred in granting

Defendants' motion to suppress. Specifically, the government contends the
district court erred in requiring the agents to demonstrate reasonable suspicion
in support of the detention and questioning of Defendants after they were
presented with evidence that Defendants' car was not stolen. The government
maintains that under settled fixed-checkpoint precedent, the border patrol
agents were entitled to briefly detain and question Defendants about the
suspicious circumstances they observed. The government contends the agents'
stop of Defendants was neither overly long nor intrusive and therefore did not
exceed the scope of a routine checkpoint stop. As a result, the government
asserts the district court erred in granting Defendants' motion to suppress. We
agree.

17

In reviewing a district court's ruling on a motion to suppress evidence, we view

the evidence in the light most favorable to the prevailing party and accept the
district court's findings of fact unless they are clearly erroneous. United States
v. Johnson, 895 F.2d 693, 697-98 (10th Cir.1990); United States v. MoralesZamora, 914 F.2d 200, 202 (10th Cir.1990). "The ultimate question of whether
a search and seizure was reasonable under the Fourth Amendment is a question
of law that we review de novo." United States v. Maestas, 2 F.3d 1485, 1490
(10th Cir.1993).

18

We begin our analysis in the instant case by reviewing and contrasting the legal

standards governing Terry-type investigative stops, see Terry v. Ohio, 392 U.S.
1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), with the legal standards governing
fixed-checkpoint stops. To conduct a valid Terry stop, a law enforcement
officer must have an articulable, individualized, reasonable suspicion that an
individual is involved in criminal activity. Id. at 21, 88 S.Ct. at 1879-80. A
Terry stop must "last no longer than is necessary to effectuate the purpose of
the stop," Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75
L.Ed.2d 229 (1983), and its scope "must be carefully tailored to its underlying
justification." Id.; see also Terry, 392 U.S. at 20, 88 S.Ct. at 1879 (scope of
investigative detention must be "reasonably related in scope to the
circumstances which justified the interference in the first place.").
19

At a fixed checkpoint, in contrast, border patrol agents may stop, briefly detain,
and question individuals without any individualized suspicion that the
individuals are engaged in criminal activity. United States v. Martinez-Fuerte,
428 U.S. 543, 562, 96 S.Ct. 3074, 3085, 49 L.Ed.2d 1116 (1976); United States
v. Rascon-Ortiz, 994 F.2d 749, 752 (10th Cir.1993). "Border patrol agents have
'virtually unlimited discretion to refer cars to the secondary inspection area,' "
United States v. Sanders, 937 F.2d 1495, 1499 (10th Cir.1991) (quoting INS v.
Delgado, 466 U.S. 210, 224 n. 6, 104 S.Ct. 1758, 1767 n. 6, 80 L.Ed.2d 247
(1984) (Powell, J., concurring)), cert. denied, 502 U.S. 1110, 112 S.Ct. 1213,
117 L.Ed.2d 451 (1992), and may do so in the absence of individualized
suspicion. Martinez-Fuerte, 428 U.S. at 563-64, 96 S.Ct. at 3085-86. "Whether
the routine stop is conducted at primary, secondary, or both is irrelevant to
Fourth Amendment concerns." Rascon-Ortiz, 994 F.2d at 753. "The principal
protection of Fourth Amendment rights at checkpoints lies in appropriate
limitations on the scope of the stop." Martinez-Fuerte, 428 U.S. at 566-67, 96
S.Ct. at 3087; see also United States v. Ludlow, 992 F.2d 260, 263-64 (10th
Cir.1993) ("[A] routine checkpoint inquiry may properly take place at a
primary inspection area, a secondary inspection area, or both as long as the
scope of the inquiry is appropriate."). "A routine checkpoint stop [therefore]
must be brief and unintrusive." Rascon-Ortiz, 994 F.2d at 752.

20

During a routine fixed-checkpoint stop, border patrol agents may question

individuals in the absence of individualized suspicion about their citizenship
and immigration status and request documentation. Rascon-Ortiz, 994 F.2d at
752; Sanders, 937 F.2d at 1499. Agents may briefly question individuals
"concerning such things as vehicle ownership, cargo, destination, and travel
plans," Rascon-Ortiz, 994 F.2d at 752, as long as such questions are
"reasonably related to the agent's duty to prevent the unauthorized entry of
individuals into this country and to prevent the smuggling of contraband." Id.
Agents may also make a cursory visual inspection of a vehicle. Id.

21

Additionally, if an agent observes "suspicious circumstances" during initial

questioning, he "may briefly question the motorist concerning those suspicions
and ask the motorist to explain." Id. at 753; see also United States v. Chavira, 9
F.3d 888, 889 (10th Cir.1993) (" 'Suspicious circumstances' justify a brief
detention for further questioning."). While "there is no single or narrow
definition" of a suspicious circumstance, Sanders, 937 F.2d at 1500, we have
noted that "[a] 'suspicious circumstance' is not equivalent to the 'reasonable
suspicion' standard." Rascon-Ortiz, 994 F.2d at 753 n. 6. Moreover,

22 deference is properly given to border patrol agents who, as law enforcement

some
officers, are specifically trained to look for indicia of crime, with an emphasis on
immigration and customs laws. So long as their interrogation bears a reasonable
relationship to their unique duties, the judiciary is properly reluctant to interfere, and
a reviewing court should only determine whether the suspicious circumstances as
perceived by the border patrol agent are supported by the facts.
23

Sanders, 937 F.2d at 1500. We apply "a common sense view of the totality of
the circumstances" to determine whether suspicious circumstances exist. Id. at
1501.

24

Thus, during a routine fixed-checkpoint stop a border patrol agent may ask
questions reasonably related to his duties and explore suspicious circumstances,
but must be brief and unintrusive. Rascon-Ortiz, 994 F.2d at 752-53. Further
detention of an individual beyond the scope of a routine checkpoint stop must
be based upon reasonable suspicion, consent, or probable cause. Id. at 753;
Sanders, 937 F.2d at 1499. "Although consent is not required for a dog sniff of
a lawfully detained vehicle ... it is required for continued detention beyond the
lawful period." Chavira, 9 F.3d at 890 n. 1.

25

With these principles in mind, we conclude the district court erred by applying
the wrong legal standards to the facts of the instant case. While the court
correctly found Agent Torres' referral of Defendants to secondary justified,
Martinez-Fuerte, 428 U.S. at 563-64, 96 S.Ct. at 3085-86, the court erred in
concluding the agents had to have reasonable suspicion to continue to detain
and question Defendants once they were presented with evidence the vehicle
was not stolen. In so doing, the court erroneously applied the legal standards
governing Terry stops to this fixed-checkpoint case and thereby erred in
granting Defendants' motion to suppress.

26

Contrary to the court's conclusion, border patrol agents conducting a fixedcheckpoint stop are not limited to inquiring into suspicious circumstances
related only to the initial reason for the stop or referral to secondary. See United

States v. Gonzalez-Acosta, 989 F.2d 384, 387-88 (10th Cir.1993) (in stop at
fixed checkpoint, agents not limited to inquiring into the immigration-related
reason supporting the initial detention); United States v. Espinosa, 782 F.2d
888, 891 (10th Cir.1986) ("The Fourth Amendment does not require police
officers to close their eyes to suspicious circumstances."); United States v.
Lopez, 777 F.2d 543, 547 (10th Cir.1985) ("The law does not require the police
to ignore evidence of other crimes in conducting legitimate roadblocks...."); cf.
Terry, 392 U.S. at 22, 88 S.Ct. at 1880-81 (scope of investigative detention
must be reasonably related in scope to circumstances underlying the initial
detention); United States v. Millan-Diaz, 975 F.2d 720, 722 (10th Cir.1992) (in
roving patrol stop, agents had to have reasonable suspicion to further detain
defendant once the immigration-related reason supporting the initial detention
was dispelled). Instead, agents can inquire into any suspicious circumstances
they observe during routine questioning at a fixed checkpoint stop, as long as
the agents' questioning bears "a reasonable relationship to ... [their] unique
duties." Ludlow, 992 F.2d at 264 (quoting Sanders, 937 F.2d at 1500). Agent
Dalton was therefore entitled to question Defendants at secondary about
"vehicle ownership, cargo, destination, and travel plans," Rascon-Ortiz, 994
F.2d at 752-53, and inquire into any suspicious circumstances he observed, as
long as the detention remained brief and unintrusive. Id. at 753.
27

Applying a common sense view of the totality of the circumstances, Sanders,

937 F.2d at 1501, there is ample evidence to support the agents' determination
that suspicious circumstances existed to justify their continued detention of
Defendants. Massie and Lewis gave conflicting answers as to where they had
come from. Massie told the agents they had come from Nacogdoches, Dallas,
and Fort Smith, Texas; Lewis said they had come from Burleson, Texas. See
United States v. Preciado, 966 F.2d 596, 598 (10th Cir.1992) (difficulty
recollecting basic details about one's travels can be suspicious circumstance).
Massie appeared nervous because he would not make eye contact with Agent
Dalton and was speaking in a loud voice. See Rascon-Ortiz, 994 F.2d at 753
(nervousness can be suspicious circumstance). Massie and Lewis could not
agree on who they had been visiting. Lewis said they were visiting his brother;
Massie said they were visiting a friend, whose name he could not recall. Lewis
produced identification Agent Dalton found suspect. Finally, Massie and Lewis
gave conflicting answers when asked what was in the trunk of the car. Lewis
told Agent Dalton there was nothing in the trunk; Massie told Agent Dalton the
trunk contained luggage. Affording appropriate deference to the agents'
determination, Sanders, 937 F.2d at 1500, we conclude under the totality of the
circumstances, suspicious circumstances existed to justify the agents' continued
detention and questioning of Defendants.

28

We further conclude the agents' continued detention and questioning of

Defendants did not exceed the confines of a routine checkpoint stop. The
agents' questioning lasted only eight to eleven minutes1 from the time
Defendants were stopped at primary to the moment the dog alerted on the
trunk. The agents' questions were not overly intrusive. The agents questioned
Defendants about citizenship, vehicle ownership, vehicle contents, destination,
and travel plans, each of which bears a reasonable relationship to the agents'
duties. Sanders, 937 F.2d at 1500; see Rascon-Ortiz, 994 F.2d at 752; Ludlow,
992 F.2d at 265 n. 4 ("Questions regarding ... the contents of the vehicle were
of course directly related to the Border Patrol agent's duties."). Thus, because
the checkpoint stop in the instant case remained brief and unintrusive, it did not
exceed the scope of a permissible routine checkpoint stop. See Rascon-Ortiz,
994 F.2d at 753. As a result, the district court erred in concluding the agents
had to have reasonable suspicion to continue to detain Defendants after they
were presented with evidence that Defendants' car was not stolen. See id.
(reasonable suspicion necessary to detain defendant only if scope of routine
checkpoint stop exceeded).

29

While Defendants were lawfully detained, the dog alerted on the trunk and the
blue suitcase, thereby affording the agents probable cause to search. Chavira, 9
F.3d at 890. Because they were lawfully detained, Defendant Massie's refusal
of consent to the dog sniff was irrelevant. See id. at 890 n. 1 ("[C]onsent is not
required for a dog sniff of a lawfully detained vehicle...."); see also United
States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644-45, 77 L.Ed.2d 110
(1983) (dog sniff does not constitute a search). As a result, Defendants were not
entitled to suppression of the evidence seized from their car. We therefore
REVERSE the district court's grant of Defendants' motion to suppress and
REMAND for further proceedings consistent herewith.

The record reflects the agents questioned Defendants at the primary area for
one minute and at the secondary area for seven to ten minutes before the dog
alerted. Thus, the total detention time before the dog alerted was eight to eleven
minutes