                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                         NOV 24 1997
                                  PUBLISH                            PATRICK FISHER
                                                                              Clerk
              UNITED STATES COURT OF APPEALS
                       TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

 v.                                                    No. 96-2235

 KENNETH LINDEN DOYLE,

       Defendant-Appellant.


                   Appeal from the United States District Court
                         for the District of New Mexico
                           (D.C. No. CR-95-624-HB)


Todd B. Hotchkiss, of Frechette & Associates, Albuquerque, New Mexico, for
Defendant/Appellant.

Presiliano A. Torrez, Assistant United States Attorney (John J. Kelly, United
States Attorney and Mick I. R. Gutierrez, Assistant United States Attorney, with
him on the brief), Las Cruces, New Mexico, for Plaintiff/Appellee.


Before SEYMOUR, Chief Judge, PORFILIO and BRORBY, Circuit Judges.


SEYMOUR, Chief Judge.
      Appellant Kenneth Linden Doyle was indicted on one count of possession

with intent to distribute more than 5 kilograms of cocaine in violation of 21

U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(1)(A), and 18 U.S.C. § 2, and one count

of criminal forfeiture under 21 U.S.C. § 853. After an evidentiary hearing, the

district court denied Mr. Doyle’s motion to suppress evidence obtained during a

vehicle stop by a border patrol agent, and he was subsequently convicted by a jury

on both counts. On appeal, Mr. Doyle argues that the district court improperly

denied his motion to suppress on the ground that the stop and subsequent search

of his vehicle violated the Fourth Amendment. For the reasons stated below, we

affirm.



                                         I

      Early in the morning of November 8, 1995, United States Border Patrol

Agent Joseph Muniz was working approximately nine miles from the United

States-Mexico border near Columbus, New Mexico, observing traffic on New

Mexico Highway 11. At approximately 7:54 a.m., Agent Muniz received a call

informing him that a sensor designed to detect intrusions into the United States

from Mexico had activated on a dirt road approximately three miles west of the

Columbus port of entry. Agent Muniz, who had been a border patrol agent for

seven years and was familiar with the Columbus area, knew that there were no


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homes or businesses in the immediate vicinity of the sensor and that the area was

open range with sagebrush and other local vegetation growing there. He was also

aware that after 8:00 a.m. the traffic on Highway 11 was generally slow with the

bulk of travelers being tourists on their way for short visits to Mexico. At the

hearing on the motion to suppress, Agent Muniz testified that Highway 11 is a

well-known smuggling corridor for illegal aliens and narcotics since it is the only

paved road in the area running north from the border.

      Immediately after receiving the call, Agent Muniz looked at his watch and

began timing, estimating it would take approximately 13-16 minutes for a vehicle

to travel from the sensor to his location on Highway 11. Approximately 16

minutes after he began timing, Mr. Doyle appeared driving north in a 1988 Ford

Crown Victoria, a large sedan. Agent Muniz testified he knew alien smuggling

had increased in the area over the past several years and that alien smugglers

preferred to use pick-ups, vans, or large sedans. He further observed there were

no vehicles immediately in front of or behind Mr. Doyle, there were apparently no

passengers in the car, and it displayed Florida license plates. At that point, he

pulled in behind the vehicle and began to follow it.

      While following the car, Agent Muniz made a radio request for owner’s

registration information and a 72-hour lane check in order to determine if the

vehicle had been recorded as crossing through a port of entry. The lane check


                                         -3-
revealed no record of the vehicle, while the computer check indicated the vehicle,

which had not been reported stolen, was registered to an Angelo Malavais in

Florida. Agent Muniz continued to follow the car for approximately five miles,

during which time he noticed a branch caught in the trim on the driver’s side.

Agent Muniz knew travel from the sensor location to Highway 11 would require

passage on a dirt road lined with brush similar to the branch hanging from Mr.

Doyle’s car.

      Suspecting that Mr. Doyle’s vehicle might be the one that had activated the

sensor, Agent Muniz stopped it for inspection at mile marker 14. As he

approached on foot, he saw what he believed to be several fresh scratches running

the length of Mr. Doyle’s car. As he got closer, he also noticed branches stuck to

the car and baggage in the back seat. Upon reaching the car, Agent Muniz

questioned Mr. Doyle who said he was a United States citizen and that the vehicle

was owned by his friend, Mark Wilson. Agent Muniz then asked Mr. Doyle his

destination, to which he replied he was traveling to Phoenix to return the car

to its owner. When Agent Muniz asked Mr. Doyle if he had been to Mexico, he

said he had not.

      His suspicion further aroused, Agent Muniz asked Mr. Doyle for

identification. Agent Muniz testified that upon seeing Mr. Doyle’s driver’s

license, he asked for permission to search the trunk of the car, which Mr. Doyle


                                         -4-
granted. Mr. Doyle opened the trunk for Agent Muniz, who then looked inside

“and saw a couple of crates or boxes with a lot of stuff in there, garden hose and

other stuff in the trunk.” Rec., vol. III, at 14. Agent Muniz testified he then

asked Mr. Doyle for permission to search the vehicle with his canine, to which

Mr. Doyle also consented. During the search, the canine alerted. Agent Muniz

testified that approximately three minutes elapsed from the time he stopped Mr.

Doyle to the time the dog alerted.

      After the dog alerted and shortly after Agent Muniz had returned the dog to

his vehicle, Border Patrol Agent Cowan arrived. Agent Muniz then opened the

rear passenger door on the driver’s side, noticed the upright portion of the back

seat was loose, pulled it forward, and observed what appeared to be a trap door to

a hidden compartment. Upon dismantling the compartment, Agents Muniz and

Cowan removed several packages containing cocaine.

      Relying on these facts, the district court held the stop of Mr. Doyle’s

vehicle was based on reasonable suspicion, the subsequent detention was not

excessive, and Mr. Doyle voluntarily consented to the canine search.



                                          II

      When reviewing an order granting or denying a motion to suppress, we

accept the trial court’s findings of fact unless clearly erroneous and consider the


                                         -5-
evidence in the light most favorable to the district court’s determination. See

United States v. Wood, 106 F.3d 942, 945 (10th Cir. 1997). “‘The ultimate

determination of reasonableness under the fourth amendment is, however, a

conclusion of law that we review de novo.’” United States v. Guillen-Cazares,

989 F.2d 380, 382 (10th Cir. 1993) (quoting United States v. McKinnell, 888 F.2d

669, 672 (10th Cir. 1989)).

      Mr. Doyle advances the following arguments to support his contention that

the district court erred in denying his motion to suppress: (1) Agent Muniz did

not have reasonable suspicion to stop his vehicle; (2) Agent Muniz’s questioning

and subsequent request to search the car exceeded the scope of the investigative

detention and thus constituted an unreasonable search and seizure; (3) the

narcotics seized from Mr. Doyle’s vehicle were the product of an unlawful

detention; and (4) Mr. Doyle’s consent to the canine search of his vehicle was not

voluntary and therefore did not qualify under the consent exception to the Fourth

Amendment. We address these arguments in turn.



                                         A

      We begin with Mr. Doyle’s claim that Agent Muniz did not have reasonable

suspicion to stop his vehicle. We analyze traffic stops under the principles

applicable to “investigative detentions” set forth by the Supreme Court in Terry v.


                                         -6-
Ohio, 392 U.S. 1 (1968). Under Terry, we must determine the validity of a stop

according to “whether the officer’s action was justified at its inception, and

whether it was reasonably related in scope to the circumstances which justified

the interference in the first place.” Id. at 20. We have been frequently called

upon to apply this dual analysis to the question of whether and when border patrol

agents may detain vehicles they suspect of carrying illegal aliens or other

contraband into the United States.

      At locations other than the actual border or its functional equivalent, border

patrol officers may stop vehicles “only if they are aware of specific articulable

facts, together with rational inferences from those facts, that reasonably warrant

suspicion” that a crime has been committed. United States v. Brignoni-Ponce,

422 U.S. 873, 884 (1975); United States v. Lopez-Martinez, 25 F.3d 1481, 1483

(10th Cir. 1994). In an effort to guide our inquiry regarding reasonable suspicion,

the Supreme Court has set out the following non-exhaustive test:

      “In determining whether there is reasonable suspicion to stop a car in
      the border area, officers may consider any number of factors,
      including: (1) characteristics of the area in which the vehicle is
      encountered; (2) the proximity of the area to the border; (3) the usual
      patterns of traffic on the particular road; (4) the previous experience
      of the agent with alien traffic; (5) information about illegal border
      crossings in the area; (6) the driver’s behavior, including any obvious
      attempts to evade officers; (7) aspects of the vehicle such as a station
      wagon with concealed compartments; and (8) the appearance that the
      vehicle is heavily loaded.”

Id. at 1483-84 (quoting United States v. Monsisvais, 907 F.2d 987, 990 (10th Cir.

                                         -7-
1990) (citing Brignoni-Ponce, 422 U.S. at 884-85)). This test does not purport to

provide outcome determinative criteria, nor does it require us to view any fact in

isolation. Rather, our examination for reasonable suspicion must take into

account the “‘totality of the circumstances’” surrounding the stop. See id. at 1484

(quoting United States v. Sokolow, 490 U.S. 1, 8 (1989); United States v. Barbee,

968 F.2d 1026, 1028 (10th Cir. 1992)).

      A fundamental factor supporting an investigatory border patrol stop based

on reasonable suspicion is the likelihood that the subject vehicle has crossed the

border.

      “When a person is traveling within our country, . . . we are more
      hesitant to allow interference [than at the border], even if the vehicle
      is close to the border. For this reason, this Court has repeatedly
      emphasized that one of the vital elements in the Brignoni-Ponce
      reasonable suspicion test is whether the agents had reason to believe
      that the vehicle in question recently crossed the border.”

United States v. Venzor-Castillo, 991 F.2d 634, 638 (10th Cir. 1993) (quoting

United States v. Melendez-Gonzalez, 727 F.2d 407, 411 (5th Cir. 1984)).

      We agree with the district court’s conclusion that the totality of the

circumstances surrounding the investigatory stop of Mr. Doyle’s car created

reasonable suspicion that Mr. Doyle had recently crossed the border. Given the

placement of the sensor in an area away from the port of entry, the timing of Mr.

Doyle’s arrival at the agent’s location, the absence of other traffic, and the

condition of the vehicle, it was reasonable for Agent Muniz to suspect that Mr.

                                          -8-
Doyle’s entry into the United States was illegal.

      Mr. Doyle argues that reasonable suspicion was lacking because no single

fact articulated by Agent Muniz distinguished Mr. Doyle’s presence on Highway

11 from that of a person engaged in legitimate travel. Mr. Doyle asserts, for

example, that the sensor alert does not constitute per se reasonable certainty of a

border crossing, but rather merely indicates that a vehicle has activated the

sensor. He contends that the dusty appearance of his car as well as the scratches

and the presence of brush and branches are in no way uncharacteristic of cars

legitimately traveling through a region filled with dirt roads lined with sage brush

and creosote. He notes that Highway 11 is a legitimate avenue of travel from

Columbus-Deming, an area with a population of 5,000, to Phoenix, Arizona, and

that there was nothing inherently suspicious about his Florida license plates.

Finally, Mr. Doyle points out his driving and demeanor were not suspicious and

his car was not riding low.

        These claims are ultimately unpersuasive, however, since we have

repeatedly stated that no single factor either requires or precludes a finding of

reasonable suspicion.

      To be sure, an officer’s specific articulable facts, when viewed in
      isolation, will often comport with general notions of innocent travel
      rather than criminal activity. . . . Our task, however, is not to
      pigeonhole each purported fact as either consistent with innocent
      travel or manifestly suspicious. Rather, the reasonable suspicion
      calculus turns on whether the specific articulable facts, when viewed

                                          -9-
      together through the lens of a reasonable law enforcement officer,
      justified a brief roadside detention . . . .

Lopez-Martinez, 25 F.3d at 1484.

      While we might be inclined to agree that there was no reasonable cause for

suspicion based on the presence of a car on Highway 11 with an out-of-state

license plate, or a car covered with scratches, dust, and branches, these were not

the only factors that entered into Agent Muniz’s decision to stop the car, nor were

they treated as such by the district court in denying the motion to suppress.

Rather, the key factor in the district court’s decision was the highly unusual

circumstance of the sensor activation coinciding with the appearance of Mr.

Doyle’s car on Highway 11 within the exact span of time it would take a car to

travel there from the location of the sensor. Since an intrusion into the United

States at a location other than an authorized checkpoint is unlawful regardless of

its underlying purpose, Agent Muniz did not need to suspect that Mr. Doyle was

transporting illegal aliens in order to justify the investigatory stop of his car. The

stop therefore did not violate the Fourth Amendment.



                                           B

      Having determined that the stop at issue was “justified at its inception”

under Terry, 392 U.S. at 20, we address briefly Mr. Doyle’s remaining arguments,

namely that Agent Muniz’s request to search the car exceeded the scope of the

                                         -10-
investigative detention, and that Mr. Doyle did not voluntarily consent to the

search of his vehicle. We note at the outset the district court made specific

findings that Agent Muniz’s questioning of Mr. Doyle was based on reasonable

suspicion, that Mr. Doyle’s consent to the search was voluntary, and that Agent

Muniz’s testimony was true and credible. We reiterate that we are bound to

construe the case in the light most favorable to the district court’s disposition and

that we cannot overturn the district court’s findings of fact unless they are clearly

erroneous.

      In examining Mr. Doyle’s legal arguments, we find none that would require

us to overturn the district court’s decision. Agent Muniz had reasonable

suspicion to continue questioning Mr. Doyle and to request permission to search

his car based on the inconsistent information he provided concerning the

ownership of the vehicle. See United States v. Jones, 44 F.3d 860, 872 (10th Cir.

1995) (driver’s inability to prove lawful possession of vehicle and officer’s

skepticism concerning amount of luggage justified reasonable suspicion); United

States v. Horn, 970 F.2d 728, 732 (10th Cir. 1992) (defendant’s proffer of

suspicious ownership papers and title in another person’s name justified

reasonable suspicion); United States v. Pena, 920 F.2d 1509, 1514 (10th Cir.

1990) (driver’s claim that car belonged to one person when it was registered to

another justified reasonable suspicion). The short detention therefore did not


                                         -11-
violate the Fourth Amendment. 1

      Whether or not a party has voluntarily consented to a search is a question of

fact that the district court must evaluate in view of the totality of the

circumstances. See Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973);

United States v. McRae, 81 F.3d 1528, 1536-37 (10th Cir. 1996). Consent to

search may be voluntary even though the consenting party is being detained at the

time consent is given. See United States v. Watson, 423 U.S. 411, 424 (1976)

(“[T]he fact of custody alone has never been enough in itself to demonstrate a

coerced confession or consent to search.”); United States v. Soto, 988 F.2d 1548,

1557 (10th Cir. 1993) (“Valid consent may be given by a person being

detained.”). Moreover, our cases dictate the conclusion that failure by law

enforcement officials to advise a detainee of his Fourth Amendment right to

refuse consent does not necessarily require a finding that consent was involuntary.

See United States v. Sanchez-Valderuten, 11 F.3d 985, 990 (10th Cir. 1993)

(failure to advise lawfully detained defendant of his right to refuse consent only

one factor in determining whether consent was voluntary); United States v.

Manuel, 992 F.2d 272, 275 (10th Cir. 1993) (same). Finally, we find nothing in

the record to indicate the district court clearly erred in finding that Mr. Doyle



      Because we hold that Agent Muniz’s detention of Mr. Doyle was lawful,
      1

we do not address his claim that his consent to search and the evidence
subsequently obtained should be suppressed as the fruits of an unlawful detention.

                                         -12-
voluntarily consented to the canine search.



                                        III

      In sum, we hold that Agent Muniz had reasonable suspicion to stop Mr.

Doyle’s car and that his request to search Mr. Doyle’s vehicle did not exceed the

scope of the detention. In addition, the district court’s finding that Mr. Doyle’s

consent to Agent Muniz’s search of the car was clear and voluntary is not clearly

erroneous. The judgment of the district court is AFFIRMED.




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