                                                                                 FILED
                            NOT FOR PUBLICATION                                   APR 18 2014

                                                                              MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                            U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                          No. 12-50606

              Plaintiff - Appellee,                D.C. No. 2:12-cr-00724-PA-1

  v.
                                                   MEMORANDUM*
BERNARD METTLE,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                              Submitted April 9, 2014**
                                Pasadena, California

Before: FERNANDEZ, N.R. SMITH, and MURGUIA, Circuit Judges.

       Bernard Mettle appeals from his conviction for possession with intent to

distribute methamphetamine, 18 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii). Mettle was

convicted after he pled guilty, subject to his right to appeal the district court’s


        *
             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).
denial of his motion to suppress physical evidence and incriminating statements

made to law enforcement officials. Because the district court correctly denied the

motion to suppress, we affirm Mettle’s conviction.

      Mettle was detained at Los Angeles International Airport by Customs and

Border Protection Officers (CBPOs) who suspected that he might be smuggling

contraband in his alimentary canal. He was taken to a secondary inspection facility

and then to a hospital, where he was held for a monitored bowel movement. After

Mettle excreted thirty methamphetamine pellets, Homeland Security Investigations

(HSI) agents arrived and read him his Miranda rights. Mettle waived his rights

and confessed to the HSI agents that he had been attempting to smuggle narcotics

from Los Angeles to Tokyo.

      We review de novo the denial of a motion to suppress, the legality of a

border search, and the voluntariness of a confession. United States v. Camacho,

368 F.3d 1182, 1183 (9th Cir. 2004) (motion to suppress, border search); United

States v. Gamez, 301 F.3d 1138, 1144 (9th Cir. 2002) (voluntariness of a

confession). In each case, we review the district court’s underlying factual

determinations for clear error. Id.

      Mettle first challenges the admissibility of the methamphetamine pellets.

“[T]he detention of a traveler at the border, beyond the scope of a routine customs


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search and inspection, is justified at its inception if customs agents, considering all

the facts surrounding the traveler and her trip, reasonably suspect that the traveler

is smuggling contraband in her alimentary canal.” United States v. Montoya de

Hernandez, 473 U.S. 531, 541 (1985). Here, the CBPOs detained Mettle because

he was visibly nervous, gave suspicious answers to routine questions, had

purchased his plane ticket with cash shortly before his flight, and was traveling on

a flight that an individual smuggling methamphetamine pellets in his alimentary

canal had also tried to take two days earlier. “Based on these facts, the [CBPOs]

possessed reasonable suspicion of drug smuggling sufficient to support a detention

for monitored bowel movements.” United States v. Gonzalez-Rincon, 36 F.3d 859,

863 (9th Cir. 1994) (discussing circumstances similar to Mettle’s).

      Mettle also challenges the admissibility of a confession he gave to HSI

agents after he waived his Miranda rights, claiming that neither the confession nor

the waiver were voluntary. To determine the voluntariness of a confession, “we

determine whether, ‘considering the totality of the circumstances, the government

obtained the statement by physical or psychological coercion or by improper

inducement so that the suspect’s will was overborne.’” United States v. Heller,

551 F.3d 1108, 1112 (9th Cir. 2009) (quoting United States v. Leon Guerrero, 847

F.2d 1363, 1366 (9th Cir.1988)).


                                           3
      Mettle argues that he was coerced because he was handcuffed for the

majority of his detention and because he was not read his Miranda rights prior to

the arrival of the HSI agents; however, he fails to show how these circumstances

amount to “physical or psychological coercion.” Id. He also claims that he was

coerced because he had asked for the assistance of counsel and was denied.

However, even if Mettle had invoked his right to counsel, it would have been

permissible for officials to interrogate him, because he himself initiated further

discussion with the CBPOs once his excretion of the pellets was imminent. See

Shedelbower v. Estelle, 885 F.2d 570, 573 (9th Cir. 1989) (citing Smith v. Illinois,

469 U.S. 91, 95 (1984) (per curiam); Oregon v. Bradshaw, 462 U.S. 1039,

1042–45 (1983)).

      Because there is no basis for finding that Mettle was coerced into

confessing, we conclude that his confession was voluntary. We also conclude that

his Miranda waiver was voluntary. See United States v. Bautista-Avila, 6 F.3d

1360, 1365 (9th Cir. 1993) (“[O]ur determination that [a defendant’s] confession

was voluntary is tantamount to a determination that his Miranda waiver was

voluntary.”).

      Finally, Mettle argues that he was entitled to an evidentiary hearing on his

suppression motion. “‘An evidentiary hearing on a motion to suppress need be


                                          4
held only when the moving papers allege facts with sufficient definiteness, clarity,

and specificity to enable the trial court to conclude that contested issues of fact

exist.’” United States v. McTiernan, 695 F.3d 882, 891 (9th Cir. 2012) (quoting

United States v. Quoc Viet Hoang, 486 F.3d 1156, 1163 (9th Cir. 2007)). Mettle

points to six purportedly contested issues of fact, but the parties’ submissions

before the district court demonstrate that four of those issues are not in dispute. As

to the remaining two issues – whether Mettle asked for counsel and whether one of

the CBPOs pressured him to consent to an x-ray so that she could go home – the

government did not contest these facts in its opposition to Mettle’s suppression

motion. Because there were no contested issues of fact warranting further

proceedings, the district court did not abuse its discretion, id., in declining to give

Mettle an evidentiary hearing.

      The district court did not err in denying Mettle’s suppression motion. The

final judgment of the district court is AFFIRMED.




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