                                                                            FILED
                            NOT FOR PUBLICATION                              APR 28 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50600

 Plaintiff - Appellee,                           D.C. No. 3:06-cr-01708-H-3

 v.
                                                 MEMORANDUM *
RAFAEL MACIAS-ENCINAS,

 Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Marilyn L. Huff, District Judge, Presiding

                             Submitted April 15, 2011 **
                                Pasadena, California

Before: KOZINSKI, Chief Judge, D.W. NELSON and BYBEE, Circuit Judges.

      In determining the reasonableness of a detention, we look to both (1) the

absolute length of the detention, “regardless of the police officers’ assiduousness in

seeking probable cause,” and (2) the context of the Terry stop length, i.e., “whether


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
law enforcement officers unduly extended the detention by their lack of diligence.”

United States v. $191,910.00 in U.S. Currency, 16 F.3d 1051, 1059–60 (9th Cir.

1994); see Terry v. Ohio, 392 U.S. 1 (1968).

      The forty-five minute stop here was not per se unreasonable. See United

States v. Sharpe, 470 U.S. 675, 685–86 (1985) (twenty-minute detention was

reasonable); United States v. Place, 462 U.S. 696, 710 (1983) (ninety-minute

detention was unreasonable). We also find that the context of this detention did not

render it unreasonable. The record does not indicate that, during the detention,

Defendant-Appellant Rafael Macias-Encinas (“Macias”) objected to being detained

in the heat or that he suffered any harm, injury, or ill effects from the heat.

Accordingly, we do not find that Macias’s discomfort rendered the detention

unconstitutional.

      We likewise reject Macias’s argument that the U.S. Border Patrol agents

unnecessarily prolonged his detention by failing to diligently pursue their

investigation. The record indicates that the agents attempted to locate a narcotic

detector dog shortly after pulling over the truck in which Macias was a passenger.

The border patrol agents diligently located a narcotics dog from the nearest

checkpoint as soon as they knew where it was needed.

      AFFIRMED.


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