Appeal from the United States District Court for the Southern District of California. D.C. No. CR-90-0683-01-GT. Gordon Thompson, Jr., Chief Judge, Presiding.
Before: Cecil F. Poole, Charles Wiggins and Edward Leavy, Circuit Judges. Opinion by Judge Poole.
Appellant Hector Ramirez-Jiminez appeals from his jury conviction and sentence for two counts of transportation of illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(B). Appellant was stopped at approximately 11:30 p.m. on July 11, 1990, by United States Border Patrol agents at the San Clemente checkpoint. Agents noticed that the truck which Ramirez was driving was heavily loaded, and that he appeared nervous, sitting rigidly and staring straight ahead. Agents motioned for Ramirez to stop his truck. He at first ignored them, but then slowly came to a stop beyond where the agents were standing.
Ramirez provided the Border Patrol agents with a false name and claimed to be an American citizen. While walking to the back of the truck, a Border Patrol agent noticed that the outside walls of the cargo area of the truck were warm, indicating the possibility that the truck might contain human beings. A dog, trained to detect human odors, was summoned and alerted on the cargo area of the truck. Agents requested and were given permission to search the truck. Inside the cargo area they found 51 illegal aliens.
Appellant moved to dismiss the indictment based on the loss of testimonial evidence through the government's deportation of 49 of the 51 illegal aliens. Appellant also moved to suppress the evidence seized in the search of the truck, arguing that the stop of the truck was illegal. Both these motions were denied.
Ramirez was tried before a jury beginning on October 23, 1991, and found guilty on both counts. In imposing sentence, the court departed upward from the applicable guidelines range of four to ten months, and sentenced Ramirez to thirty months in custody and three years of supervised release.
Appellant alleges error in the denial of his motions to suppress and to dismiss the indictment. He also appeals the admission of evidence of his previous association with an alien smuggling operation, and of testimony regarding the false statements he made at the time of his arrest. Finally, he argues that the upward departure was improper. We affirm appellant's conviction, but vacate the sentence and remand for resentencing.
Before the district court, Ramirez argued that the stop of his truck was illegal, necessitating the suppression of all evidence seized in the search of the truck. He concedes, however, that the stop occurred at the truck scales connected with the San Clemente checkpoint. Thus, the stop of the vehicle was permissible as a "stop[ ] for brief questioning routinely conducted at permanent checkpoints." United States v. Martinez-Fuerte, 428 U.S. 543, 566, 49 L. Ed. 2d 1116, 96 S. Ct. 3074 (1976); see also United States v. Gabriel, 625 F.2d 830, 832-833 (9th Cir. 1980), cert. denied sub nom. Palmer v. United States, 449 U.S. 1113, 66 L. Ed. 2d 843, 101 S. Ct. 925 (1981).
Ramirez argues for the first time on appeal that the checkpoint search was illegal because he was coerced into consenting to the search, and the search was not supported independently by probable cause. See Martinez-Fuerte, 428 U.S. at 567 ("Checkpoint searches are constitutional only if justified by consent or probable cause to search"). Since appellant did not argue a lack of consent below, we review the admission of the evidence seized in the search for plain error. Cf. United States v. Segal, 852 F.2d 1152, 1155 (9th Cir. 1988).
Appellant argues that, because he had been detained and subjected to psychological coercion, his consent to the search was not voluntary. At the suppression hearing, however, Ramirez testified that during the stop he had not been threatened, screamed at, or struck. In fact, nothing in the record supports appellant's claim of undue psychological pressure being brought to bear. We have previously held, moreover, that valid consent may be given while detained, United States v. Lindsey, 877 F.2d 777, 783 (9th Cir. 1989), and that a brief detention at a Border Patrol checkpoint is per se reasonable. United States v. Taylor, 934 F.2d 218, ...