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

### NOV 24 1997 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. KENNETH LINDEN DOYLE, Defendant-Appellant. No. 96-2235

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, Albuq uerque, New Mexico, for Defendant/Appellant. Presiliano A. Torrez, Assistant United States Attorney (John J. Kelly, United States Attorney and Mick I. R. Gutierrez, AssistantUnited States Attorney, with him on the brief), Las Cruces, New Mexico, for Plai ntiff/Appellee.

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

SEYMOUR , Chief Judge.-2-

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 1 8 U.S.C. § 2, and one count of criminal forfeiture under 21 U.S.C. § 853. Afte r an evidentiary hearing, the district court denied Mr. Doyle’s motion to suppres s evidence obtained during a vehicle stop by a border patrol agent, and he was s ubsequently convicted by a jury on both counts. On appeal, Mr. Doyle argues that t he district court improperly denied his motion to suppress on the ground that th e 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 St ates Border Patrol Agent Joseph Muniz was working approximately nine m iles from the United States-Mexico border near Columbus, New Mexico, obs erving traffic on New Mexico Highway 11. At approximately 7:54 a.m., Age nt Muniz received a call informing him that a sensor designed to detect intr usions into the United States from Mexico had activated on a dirt road approximat ely 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-3-

homes or businesses in the immediate vicinity of th e sensor and that the area was open range with sagebrush and other local vegetatio n growing there. He was also aware that after 8:00 a.m. the traffic on Highway 1 1 was generally slow with the bulk of travelers being tourists on their way for s hort visits to Mexico. At the hearing on the motion to suppress, Agent Muniz test ified that Highway 11 is a well-known smuggling corridor for illegal aliens an d narcotics since it is the only paved road in the area running north from the borde r. Immediately after receiving the call, Agent Muniz l ooked at his watch and began timing, estimating it would take approximatel y 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 d riving north in a 1988 Ford Crown Victoria, a large sedan. Agent Muniz testifi ed he knew alien smuggling had increased in the area over the past several yea rs 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. D oyle, there were apparently no passengers in the car, and it displayed Florida lic ense plates. At that point, he pulled in behind the vehicle and began to follow it

. While following the car, Agent Muniz made a radio r equest for owner’s registration information and a 72-hour lane check i n order to determine if the vehicle had been recorded as crossing through a port of entry. The lane check-4-

revealed no record of the vehicle, while the comput er 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 f or 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 on e that had activated the sensor, Agent Muniz stopped it for inspection at mi le marker 14. As he approached on foot, he saw what he believed to be s everal fresh scratches running the length of Mr. Doyle’s car. As he got closer, h e also noticed branches stuck to the car and baggage in the back seat. Upon reachin g the car, Agent Muniz questioned Mr. Doyle who said he was a United State s 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 t o 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 se eing Mr. Doyle’s driver’s license, he asked for permission to search the trun k of the car, which Mr. Doyle-5-

granted. Mr. Doyle opened the trunk for Agent Muni z, 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 vehicl e with his canine, to which Mr. Doyle also consented. During the search, the c anine 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. Ag ent 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 compart ment, 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 subs equent detention was not excessive, and Mr. Doyle voluntarily consented to t he canine search.

II When reviewing an order granting or denying a motio n to suppress, we accept the trial court’s findings of fact unless cl early erroneous and consider the-6-

evidence in the light most favorable to the distric t court’s determination. See United States v. Wood , 106 F.3d 942, 945 (10th Cir. 1997). “‘The ultimate determination of reasonableness under the fourth am endment 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 suppo rt his contention that the district court erred in denying his motion to s uppress: (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 t he scope of the investigative detention and thus constituted an unreasonable sear ch 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 canin e search of his vehicle was not voluntary and therefore did not qualify under the c onsent exception to the Fourth Amendment. We address these arguments in turn.

A We begin with Mr. Doyle’s claim that Agent Muniz di d 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.-7-

Ohio , 392 U.S. 1 (1968). Under Terry , we must determine the validity of a stop according to “whether the officer’s action was just ified at its inception, and whether it was reasonably related in scope to the c ircumstances 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 fu nctional 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-exh austive test: “In determining whether there is reasonable suspici on to stop a car in the border area, officers may consider any number o f factors, including: (1) characteristics of the area in which the vehicle is encountered; (2) the proximity of the area to the b order; (3) the usual patterns of traffic on the particular road; (4) the previous experience of the agent with alien traffic; (5) information ab out illegal border crossings in the area; (6) the driver’s behavior, i ncluding any obvious attempts to evade officers; (7) aspects of the vehi cle such as a station wagon with concealed compartments; and (8) the appe arance that the vehicle is heavily loaded.” Id. at 1483-84 (quoting United States v. Monsisvais , 907 F.2d 987, 990 (10th Cir.-8-

1990) (citing Brignoni-Ponce , 422 U.S. at 884-85)). This test does not purportto provide outcome determinative criteria, nor does itrequire us to view any fact in isolation. Rather, our examination for reasonable suspicion must take into account the “‘totality of the circumstances’” surro unding 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 bo rder 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 Br ignoni-Ponce reasonable suspicion test is whether the agents hadreason to believe that the vehicle in question recently crossed the b order.” 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 cr ossed the border. Given the placement of the sensor in an area away from the po rt of entry, the timing of Mr. Doyle’s arrival at the agent’s location, the absenc e of other traffic, and the condition of the vehicle, it was reasonable for Age nt Muniz to suspect that Mr.-9-

Doyle’s entry into the United States was illegal. Mr. Doyle argues that reasonable suspicion was lack ing because no single fact articulated by Agent Muniz distinguished Mr. D oyle’s presence on Highway 11 from that of a person engaged in legitimate trav el. 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 avehicle has activated the sensor. He contends that the dusty appearance of h is 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 legiti mate 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 demea nor were not suspicious and his car was not riding low. These claims are ultimately unpersuasive, howeve r, since we have repeatedly stated that no single factor either requ ires 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, howe ver, is not to pigeonhole each purported fact as either consistentwith innocent travel or manifestly suspicious. Rather, the reaso nable suspicion calculus turns on whether the specific articulable facts, when viewed-10-

together through the lens of a reasonable law enfor cement 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 Highway11 with an out-of-state license plate, or a car covered with scratches, dus t, and branches, these were not the only factors that entered into Agent Muniz’s de cision to stop the car, nor were they treated as such by the district court in denyi ng the motion to suppress. Rather, the key factor in the district court’s deci sion was the highly unusual circumstance of the sensor activation coinciding wi th 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. Sinc e 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 “justi fied at its inception” under Terry , 392 U.S. at 20, we address briefly Mr. Doyle’s re maining arguments, namely that Agent Muniz’s request to search the carexceeded the scope of the-11-

investigative detention, and that Mr. Doyle did notvoluntarily consent to the search of his vehicle. We note at the outset the d istrict court made specific findings that Agent Muniz’s questioning of Mr. Doyl e was based on reasonable suspicion, that Mr. Doyle’s consent to the search w as voluntary, and that Agent Muniz’s testimony was true and credible. We reiter ate that we are bound to construe the case in the light most favorable to th e district court’s disposition and that we cannot overturn the district court’s findin gs of fact unless they are clearly

erroneous. In examining Mr. Doyle’s legal arguments, we find n one 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 pr ovided 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 possessio n of vehicle and officer’s skepticism concerning amount of luggage justified r easonable suspicion); United
States v. Horn , 970 F.2d 728, 732 (10th Cir. 1992) (defendant’s p roffer of suspicious ownership papers and title in another pe rson’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 pers on when it was registered to another justified reasonable suspicion). The shortdetention therefore did not1 Because we hold that Agent Muniz’s detention of Mr. Doyle was lawful,

we do not address his claim that his consent to sea rch and the evidence subsequently obtained should be suppressed as the f ruits of an unlawful detention. -12- 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 concl usion that failure by law enforcement officials to advise a detainee of his F ourth Amendment right to refuse consent does not necessarily require a findi ng 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 h is 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). Final ly, we find nothing in the record to indicate the district court clearly e rred in finding that Mr. Doyle-13-

voluntarily consented to the canine search.

III In sum, we hold that Agent Muniz had reasonable sus picion to stop Mr. Doyle’s car and that his request to search Mr. Doyl e’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 clea r and voluntary is not clearly erroneous. The judgment of the district court is AFFIRMED

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