*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### MAR 1 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAIME RAMIREZ, Defendant - Appellant. No. 97-2347 (D.C. No. CR-97-158-JP) (District of New Mexico)

ORDER AND JUDGMENT *

Before BALDOCK , BRISCOE and LUCERO , Circuit Judges.

Jaime Ramirez appeals the district court’s denial o f his motion to suppress evidence and statements obtained during an allegedl y unconstitutional search and seizure at a fixed border checkpoint. Exercising j urisdiction pursuant to 28 U.S.C. § 1291, we affirm.-2- I Ramirez was a passenger on a bus that stopped at a fixed border checkpoint north of Las Cruces, New Mexico. At the checkpoint , United States Border Patrol Agent Henry Davila boarded the bus and examined the passengers’ citize nship documents. After examining Ramirez’s New Mexico dr iver’s license and moving on, Davila returned to question Ramirez a second ti me because, he claims, Ramirez appeared nervous, and his hand trembled. D uring the second encounter, Ramirez volunteered that he had gone to El Paso to drop off his mother at the airport and was traveling to Albuquerque with toys for his children. Based on the volunteered information and Ramirez’s nervousness, Davila asked Ramirez to step off the bus and into a nearby checkpoint trailer fo r further questioning. Once inside the trailer, Davila ran an NCIC check t o determine whether Ramirez was a fugitive. In response to Davila’s qu estions, Ramirez conceded that he previously had been arrested for robbery and battery and that Davila made him nervous. Davila, who later testified that he feare d for his safety, then asked for consent to conduct a pat-down search. Ramirez cons ented, and the search revealed bags of cocaine taped to Ramirez’s legs. More cocaine was discovered during a search incident to Ramirez’s arrest. Rami rez unsuccessfully moved to suppress the cocaine and related statements, arguin g that they were the fruit of an illegal detention. He entered a conditional plea o f guilty to charges of possession-3-

with intent to distribute cocaine in violation of 2 1 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2, reserving the right to appeal the denial of his motion to suppress. II “On appeal from the denial of a motion to suppress, we review the evidence in the light most favorable to the government and w e review the district court’s factual findings only for clear error.” United States v. Lambert , 46 F.3d 1064, 1067 (10th Cir. 1995). If the district court makes no findings in resolving a motion to suppress, the appellate court “must uphol d the ruling ‘if there is any reasonable view of the evidence to support it.’” U nited States v. Donnes , 947 F.2d 1430, 1432 (10th Cir. 1991) (quoting United St ates v. Morgan , 936 F.2d 1561, 1565 (10th Cir. 1991) (citation omitted)). Th e ultimate reasonableness, however, “of a search and seizure is a question of law we review de novo.” United States v. Sanchez , 89 F.3d 715, 717 (10th Cir. 1996). III We first consider whether Davila harbored sufficient suspicion to question Ramirez for a second time on the bus. Second, we d etermine whether Ramirez suffered a Fourth Amendment violation when Davila r emoved him from the bus for questioning in the checkpoint trailer. Third, we decide whether Ramirez was subjected to an unconstitutional pat-down search in the checkpoint trailer.-4-

Fourth, we consider the admissibility of Ramirez’s statements. Finally, we determine whether cocaine found in Ramirez’s boots was discovered in violation of his Fourth Amendment rights. A Fourth Amendment jurisprudence allows a border patr ol agent to board a bus at a fixed border checkpoint and briefly questi on passengers regarding citizenship, immigration status, and any suspicious circumstances. See United States v. Hernandez , 7 F.3d 944, 946 (10th Cir. 1993). Such questioni ng is permitted in the absence of any individualized susp icion to prevent the influx of unauthorized aliens and contraband into the United States, see United States v. Sanders , 937 F.2d 1495, 1500 (10th Cir. 1991), and because such stops pose only a minimal intrusion into an individual’s privacy. See United States v. MartinezFuerte , 428 U.S. 543, 561-64 (1976); United States v. Lud low , 992 F.2d 260, 262- 63 (10th Cir. 1993). Given the deference afforded a border patrol agent’s determination of suspicious circumstances, see Hernandez , 7 F.3d at 946, and the brief and unobtrusive nature of Davila’s questions, Davila possessed sufficient justification to return to question Ramirez while s till on the bus. B We conclude that Ramirez did not suffer a Fourth Am endment violation when Davila removed him from the bus for questionin g in the checkpoint trailer-5-

because Ramirez consented to this questioning. “Vo luntary encounters [between citizens and law enforcement officers] are not cons idered seizures within the meaning of the Fourth Amendment and do not raise any constitutional issues.” United States v. Laboy , 979 F.2d 795, 798 (10th Cir. 1992) (citations omi tted). “As long as a reasonable innocent person, as oppose d to a person knowingly carrying contraband, would feel free to leave, [an encounter with law enforcement officers is] consensual and need not be supported b y reasonable suspicion of criminal activity.” Sanchez , 89 F.3d at 717-18 (quoting Laboy , 979 F.2d at 798)). The district court found that “Mr. Ramirez agreed [ to leave the bus] and followed Agent Davila off the bus and into the chec kpoint trailer.” I R. Doc. 19 at 2. The court also found that “[a]t no time was Mr. Ramirez threatened or coerced.” Id. We conclude that the record supports the districtcourt’s findings. At the evidentiary hearing on Ramirez’s motion to s uppress, Agent Davila testified that, using a normal tone of voice, he as ked Ramirez to leave the bus. Davila further testified that Ramirez agreed and fo llowed him off the bus. The record indicates that the single agent did not bran dish his weapon, use aggressive language, or physically touch Ramirez when he asked Ramirez to disembark. See Sanchez , 89 F.3d at 718 (enumerating factors relevant to w hether a reasonable person would feel free to leave). Nor did Davila b lock Ramirez’s egress. Ramirez himself acknowledged that while he was on t he bus Davila did not1 The lack of thorough findings on the issue of Ramirez’s consent to disembark for

further questioning, though not grounds for reversal, is troubling. In the absence of consent, Davila would have needed a reasonable suspicion of criminal activity to support this investigative detention. We reject the suggestion that absent consent, “suspicious circumstances” would suffice to justify Ramirez’s removal from the bus. While a motorist may be referred to a secondary checkpoint based on suspicious circumstances, or even in the absence of suspicious circumstances, seeSanders , 937 F.2d at 1499-1500, the degree of intrusion that such a referral entails is much less than that experienced by a bus passenger who is removed from a bus to a separate building for interrogation.

2 Given our conclusion that Ramirez consented to the questioning, we decline to rule on whether the checkpoint interrogation constituted an “investigative detention” supported by the necessary reasonable suspicion of criminal activity, whether Davila exceeded the scope of his authority by implementing an investigative detention based on a suspicion that Ramirez might be a fugitive, and whether the detention ceased to be constitutional after Davila determined that Ramirez was not a fugitive. -6- threaten him, and he knew he was not under arrest. Viewing the evidence in the light most favorable to the government, see Lambert , 46 F.3d at 1067, we conclude that a reasonable person who was not carry ing contraband could have believed that he was free to decline Davila’s reque st to disembark and submit to further questioning. Even if we construe the distr ict court’s order as failing to make a finding as to the voluntariness of Ramirez’s consent to disembark for further questioning, the record can reasonably be i nterpreted to support such a conclusion. See United States v. Gonzalez-Acosta , 989 F.2d 384, 387 (10th Cir. 1993). 1 Accordingly, Ramirez’s removal from the bus and q uestioning in the checkpoint trailer was consensual and did not impli cate his Fourth Amendment rights. See Laboy , 979 F.2d at 798. 2-7- C The district court did not err when it found that R amirez consented to a patdown search in the checkpoint trailer. Consent to search is valid if given voluntarily. See Schneckcloth v. Bustamente , 412 U.S. 218, 222 (1973). The voluntariness of consent is a question of fact to b e determined from the totality of all the circumstances. See id. at 227. The district court explicitly found that Ramirez knowingly and voluntarily consented to this search. The court found that “Agent Davila asked Mr. Ramirez if he could pat him down for a weapon. Mr. Ramirez consented to a pat down search.” I R. Doc. 19 at 2. The court further found that “[a]t no time was Mr. Ramirez threatened or coerced.” I R. Doc. 19 at 3. The record supports these findings. Davila tes tified that he requested and received permission from Ramirez to conduct a pat-d own search. Davila testified that he at no time threatened Ramirez and that he d id not restrict Ramirez’s movement in any way prior to the time that he handc uffed Ramirez. Ramirez himself testified that neither of the two officers in the checkpoint brandished their weapons, and he did not believe himself to be underarrest when Davila sought consent for the pat-down search. Viewing the evide nce in the light most favorable to the government, see Lambert , 46 F.3d at 1067, we affirm the finding that Ramirez voluntarily consented to the pat-down search. We also affirm the district court’s conclusion thatbecause the search itself-8-

was lawful, Davila properly seized the cocaine pack ets taped to Ramirez’s legs under the “plain feel” doctrine. See Minnesota v. Dickerson , 508 U.S. 366, 375- 76 (1993) (“If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its ide ntity immediately apparent there has been no invasion of the suspect’s privacybeyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical co nsiderations that inhere in the plain-view context.”). D The district court correctly refused to suppress Ramirez’s statements. In reviewing a decision on a motion to suppress a stat ement, we accept the district court’s factual findings unless they are clearly er roneous and review de novo the ultimate question of whether a statement was volunt ary. See United States v. Hernandez , 93 F.3d 1493, 1501 (10th Cir. 1996). While Ramir ez fails clearly to identify the statements that he seeks to suppress, we find that any statements that he made prior to the pat-down search were voluntary . “Volunteered statements of any kind are not barred by the Fifth Amendment.” M iranda v. Arizona , 384 U.S. 436, 478 (1966). “If a person voluntarily speaks w ithout interrogation by an officer, the Fifth Amendment’s protection is not atissue, and the statements are admissible.” United States v. Muniz , 1 F.3d 1018, 1022 (10th Cir. 1993).-9-

Ramirez’s statements following the pat-down search, specifically his identification of the contents of the cocaine bundl es and his statement that someone must have tipped off the police, were admis sible based on Ramirez’s waiver of his Mirandarights. Upon discovery of the packets on Ramirez’ s legs, Davila read Ramirez his Mirandawarnings, Ramirez indicated that he understood the warnings, and then he agreed to speak with Davi la. See United States v. GellIren , 146 F.3d 827, 830 (10th Cir. 1998) (defendant who was given Miranda warnings, stated that he understood them, and then gave information to officers demonstrated voluntary waiver of Mirandarights). The record supports a finding that Ramirez’s statements were not coerced. In lig ht of these circumstances, we find that Ramirez knowingly and voluntarily waived his rights, and his statements are admissible. E Finally, we affirm the district court’s determinati on that the cocaine found in Ramirez’s boots is admissible. See Chimel v. California , 395 U.S. 752, 762-63 (1969). The record supports the conclusion that th is cocaine was obtained during a lawful search incident to arrest.-10-

We AFFIRM

. ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge