* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### JUN 6 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 02-2189

v. (D. New Mexico) MARIANO VELASCO, Defendant-Appellant. (D.C. No. CR-01-1723-BB)

ORDER AND JUDGMENT *

Before EBEL , HENRY , and HARTZ , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f). The case therefore is orde red submitted without oral argument.-2-

A federal grand jury charged Mariano Velasco with two counts: (1) possession with intent to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2, and (2) conspiracy to possess with intent to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1); (b)(1)(B), and 846. Mr. Velasco entered a conditional guilty plea, reservin g the right to appeal the district court’s denial of his suppression motion. The district court sentenced Mr. Velasco to concurrent terms of sixty months’ impris onment, followed by four years’ supervised release. Mr. Velasco appeals the district court’s denial of his suppression motion. We have jurisdiction under 28 U .S.C. § 1291 and affirm.

I. FACTUAL BACKGROUND At 10:50 a.m. on September 24, 2001, Mr. Velasco, a ccompanied by Hector Rios-Gutierrez, entered the United States Border Patrol checkpoint on Highway 54 south of Alamogordo. The check point is approxi mately 65 miles from the United States–Mexico border. Mr. Velasco was drivi ng a Ford Excursion. Mr. Velasco told Border Patrol Agent Domnic Bowcutt that he was a citizen of the United States. Agent Bowcutt inquir ed as to Mr. Rios’s citizenship, and Mr. Rios handed Agent Bowcutt an I-94 permit. Agent Bowcutt then asked-3-

for a passport or border crossing card from Mr. Rio s, who explained, in Spanish, that he had been robbed and had lost everything. Agent Bowcutt reviewed the I-94 permit and believed it to be fraudulent. He then inquired about the travelers’ itinerary, an d Mr. Rios replied that they were going to visit an ailing aunt in Alamogordo. After Agent Bowcutt asked about Mr. Rios’s aunt’s address, Mr. Rios respondedthat he did not know the address, adding that they were meeting her at a gas station. Mr. Velasco explained that he was just giving Mr. Rios a ride t o meet his aunt. Agent Bowcutt was suspicious about the story and re quested that the two wait in the “secondary” inspection area while he ma de some inquiries. Another agent checked the validity of Mr. Rios’s I-94 card, and learned that Mr. Rios had actually been issued an I-586 border crossing card, and that Mr. Rios was beyond the 25 miles boundary authorized by that card. Agent Bowcutt returned the I-94 card to Mr. Rios a nd asked about the ownership of the vehicle. Mr. Velasco handed him a receipt for the purchase of the car. Agent Bowcutt testified that he noticed M r. Velasco’s hand trembling and explained that he thought it somewhat suspiciou s to have a receipt rather than an insurance card and registration. During this time, another agent checked the underca rriage of the car, and he noted that the gas tank appeared to have been alter ed. Agent Bowcutt asked Mr.-4-

Velasco if the agents could perform a canine inspec tion, and Mr. Velasco agreed, exiting the vehicle as requested by the agent. The canine sniff resulted in a positive alert to the undercarriage near the gas ta nk. The agents removed the gas tank and discovered marijuana inside it. After the grand jury returned the indictment, Mr. V elasco moved to suppress the marijuana discovered by the border patrol agents. The district court concluded that there was ample evidence to support Mr. Velasco’s detention and denied his motion to suppress.

II. DISCUSSION On appeal, Mr. Velasco argues that the border patro l agents lacked reasonable suspicion to justify referring him to th e secondary inspection area and detaining him there. He maintains that Agent Bowcu tt’s concerns about Mr. Rios’s identity and citizenship established only re asonable suspicion of Mr. Rios.

A. Standard of Review “In reviewing a denial of a motion to suppress, the trial court’s findings of fact must be accepted by this court unless clearly erroneous.” United States v. Preciado , 966 F.2d 596, 597 (10th Cir. 1992) (internal quot ation marks and citation omitted). Further, “we view the evidence in the light most favorable to-5-

the government and [to] the district court’s findin gs.” United States v. Anderson , 114 F.3d 1059, 1063 (10th Cir. 1997). However, the district court’s determinations of reasonable suspicion and probable cause are reviewed de novo on appeal. Ornelas v. United States , 517 U.S. 690, 699 (1996).

B. Analysis 1. Initial Detention “During a routine fixed-checkpoint stop, border patrol agents may question individuals in the absence of individualized suspic ion about their citizenship and immigration status and request documentation.” United States v. Massie , 65 F.3d 843, 847-48 (10th Cir. 1995). Furthermore, “[a]gents may briefly question individuals concerning such things as vehicle owner ship, cargo, destination, and travel plans, as long as such questions are reasonably related to the agent’s duty to prevent the unauthorized entry of individuals in to this country and to prevent the smuggling of contraband.” Id. at 848 (citation and quotations omitted). Thus, the first stage of the encounter must remain brief, unintrusive, and must “not exceed the scope of a permissible routine checkpoin t stop.” Id. at 849. Applying these standards, we conclude that the “bri ef stop” at the highway roadblock was a “reasonable intrusion into the live s of [Mr. Velasco and Mr. Rios].” United States v. Galindo-Gonzales , 142 F.3d 1217, 1221 (10th Cir.-6-

1998); see also United States v. Morales-Zamora , 914 F.2d 200, 202-03 (10th Cir. 1990) (citing cases)

. Agent Bowcutt’s initial questioning concerned citiz enship, immigrations status, and travel plans. His follow- up question about Mr. Rios’s aunt’s address was a reasonable attempt to obtain i nformation relevant to these
matters.
2. The referral to the secondary inspection area Mr. Velasco challenges his detention at the seconda ry inspection area, arguing that Agent Bowcutt’s initial questions gene rated suspicion of only Mr. Rios. As to this issue, the district court determi ned that, under the totality of the circumstances, the border agent’s observation of “s uspicious circumstances . . . justified the continued detention of both of the de fendants.” Aplt’s App. at 26. There is no question that “border patrol agents mayquestion individuals regarding suspicious circumstances, in addition to citizenship matters, when those individuals are stopped at permanent checkpoints.” Preciado , 966 F.2d at 598

. “A suspicious circumstance is not equivalent to the reasonable suspicion standard.” United States v. Rascon-Ortiz , 994 F.2d 749, 753 n.6 (10th Cir. 1993) (internal quotation marks omitted). Furthermore,

[t]he presence of a suspicious circumstance allows a border patrol agent to ask a few additional questio ns concerning the suspicion during the course of a routine customs inspection. Since the additional questions do not add significantly to the length or intrusiveness of the-7- detention, the more rigid Fourth Amendment requirem ents of probable cause or reasonable suspicion are not r equired. Id. Border patrol agents are entitled to assess the fac ts in the light of their experience, and, as a result, we have recognized th at they “may perceive meaning in actions that appear innocuous to the untrained o bserver.” United States v. Cantu , 87 F.3d 111, 1121 (citing Brown v. Texas, 443 U.S. 47, 52 & n. 2 (1979)). Here, the district court properly concluded that Ag ent Bowcutt may have found Mr. Rios’s answers to his questions unsatisfactory, warranting further inquiry regarding Mr. Rios’s immigration status.

3. The continued detention and search Next, Mr. Velasco challenges his continued detentio n at the secondary inspection area. “Further detention of an individu al beyond the scope of a routine checkpoint stop must be based upon reasonable suspi cion, consent, or probable cause.” Massie , 65 F.3d at 848; see also Preciado , 966 F.2d at 598 (stating that “even [w]hen the questions asked at the primary ins pection area satisfy all concerns about a person’s citizenship or immigratio n status, an agent may still direct a vehicle to a secondary inspection area and further question the occupants on the basis of reasonable suspicion that a crime h as been committed”).-8-

The Supreme Court has explained that this reasonabl e suspicion standard reflects a balancing of “the importance of the gove rnmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border.” United States v. Brignoni-Ponce , 422 U.S. 873, 881 (1975). Reasonable suspicion may be based on “a series of a cts, each of them perhaps innocent in itself, but which taken together warran ted further investigation.” United States v. Lopez-Martinez , 25 F.3d 1481, 1484 (10th Cir. 1994) (quoting Terry v. Ohio , 392 U.S. 1, 22 (1968)). Although “the necessary level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence, the Fourth Amendment requires some minimal level of objective justification.” Cantu , 87 F.3d at 1121 (10th Cir. 1996) (internal quotat ion marks omitted). The ultimate assessment of reasonable suspicion must be made in light of the experience of the border agent and based on the totality of the circumstances. See United States v. Gandara-Salinas , 327 F.3d 1127, 1130 (10th Cir. 2003). Here, the record establishes that the border patrol agents possessed reasonable suspicion that Mr. Velasco had committedan immigration violation and were therefore authorized to detain him at the secondary inspection area and further question him there. In particular, Mr. Vel asco’s passenger (Mr. Rios) had unquestionably violated the bounds of his border cr ossing permit and thus could have been taken into custody. This, combined with (1) the possibly fraudulent I-1 The district court noted that during the course o f questioning, Mr. Rios

admitted that the I-94 permit was fake. -9- 94 permit, 1 (2) the story about meeting the ailing aunt at a g as station, (3) Mr. Rios’s contention that he had lost all identificati on because of a recent robbery; (3) Mr. Velasco’s nervousness in handing over the r eceipt for the purchase of the vehicle, and (5) the presentation of a receipt for the sale of the vehicle (rather than the vehicle’s insurance and registration) just ified Agent Bowcutt’s decision to continue the detention. We are not persuaded by Mr. Velasco’s contention th at the border agent’s observations supported only the detention of Mr. Ri os. Unquestionably, the suspicious behavior of a passenger is a factor thatan agent may consider in deciding whether to detain the driver. See, e.g., United States v. Kopp , 45 F.3d 1450, 1453-54 (10th Cir. 1995) (considering the beh avior of a passenger in the reasonable suspicion calculus). Moreover, we have noted above, some of Agent Bowcutt’s observations concerned Mr. Velasco himsel f (e.g., Mr. Velasco’s nervousness and Mr. Velasco’s handing Agent Bowcutta receipt rather than proof of insurance and registration).

4. The canine inspection and subsequent search Finally, Mr. Velasco also challenges the canine ins pection and subsequent search of his vehicle. He argues that “[w]hatever ‘consent’ [he] may have given-10-

to these actions, it was incurably tainted by the i llegal detention.” Aplt’s Br. at 8. In light of our conclusion that Mr. Velasco’s deten tion was lawful, this argument fails. We further note that, aside from his unpers uasive challenges to his detention, Mr. Velasco identifies no evidence in th e record undermining the validity of the consent.

III. CONCLUSION Accordingly, we AFFIRM the district court’s denial of Mr. Velasco’s motion to suppress.

Entered for the Court,

Robert H. Henry Circuit Judge