argued submitted pasadena california: June 8, 1993.
Appeal from the United States District Court for the Southern District of California. D.C. No. CR-91-0723-01-GT. Gordon Thompson, Jr., District Judge, Presiding.
Before: James R. Browning, Thomas Tang, and Robert Boochever, Circuit Judges. Opinion by Judge Boochever.
BOOCHEVER, Circuit Judge:
William Ralph Wilson appeals his convictions and sentences following two jury trials. We affirm the convictions but remand for resentencing because the district court failed to state its reasons for sentencing Wilson at the top of the applicable guideline range.
At approximately 8:00 p.m. on July 29, 1991, United States Border Patrol Agent Teeple stopped a 1987 Pontiac Firebird at the San Clemente Border Patrol Checkpoint. The car was driven and owned by Mary Darlene Akin; Wilson was a passenger. Akin appeared to be extremely nervous and disoriented, and asked Agent Teeple why he had stopped the car. Agent Teeple noticed that Wilson was sitting hunched over in the passenger seat, staring straight ahead, holding his hands closely together in his lap, and moving his fingers in a fumbling motion. Wilson did not look at Agent Teeple when the agent questioned him. Based on Akin's nervous behavior and Wilson's peculiar conduct, Agent Teeple referred the car to secondary inspection.
In the secondary inspection area, Border Patrol Agent Kocan asked Akin and Wilson about their citizenship and ordered them to get out of the car. About 15 seconds after the car arrived at secondary inspection, Agent Teeple, who had finished his rotation in primary inspection, asked Akin for permission to conduct a canine exterior sniff of the car. Akin consented. When Agent Teeple walked the dog around the car, the dog alerted on the passenger and driver's side doors. The dog is trained to detect hidden narcotics and humans. Agent Teeple then asked Akin's permission to search the interior of the car, and again Akin consented. The search of the car revealed a packet of rolling papers, a short section of plastic straw commonly used to snort methamphetamine or cocaine, and a plastic bag containing a white powdery residue that Agent Teeple recognized by smell as methamphetamine.
While Agent Teeple conducted the search, Agent Kocan watched Akin and Wilson. Wilson's behavior appeared to change after the canine alert, and he seemed extremely nervous. Agent Kocan observed that Wilson was wearing a fleece-lined dungaree jacket, which Agent Kocan found inconsistent with Wilson's short pants and the warm summer evening. Wilson's arms were stiffly crossed and his hands were in the jacket pockets. Agent Kocan requested that Wilson remove his hands from his pockets. Wilson did not do so. The agent repeated his request two or three times, but Wilson did not comply. Hearing Agent Kocan's unanswered demands, Agent Teeple exited the car and observed Agent Kocan backing away from Wilson, still ordering him to show his hands. Finally, Wilson reluctantly removed his hands from his pockets. Both agents noticed that one side of Wilson's jacket hung down lower than the other, as if something heavy or bulky was on that side. Agent Kocan ordered Wilson to remove his jacket. As Wilson handed the jacket to Agent Kocan, the agent noticed that the jacket felt inordinately heavy and observed a slit in the lining. Agent Kocan then felt a hard object inside the lining. He removed a small brown pouch containing the hard object and opened it. The pouch contained a large folding combat-style knife, a smaller pocket knife, a telephone pager, syringes and other assorted narcotics paraphernalia, and several plastic baggies containing a substance that field-tested positive for methamphetamine. Wilson was then arrested and handcuffed.
When Wilson was strip-searched at the police station, a loaded .38 caliber two-shot chrome pistol fell from the crotch of his shorts. A forensic analysis of the substance found in the brown pouch revealed that the baggies contained approximately 13 grams of 78-79% pure methamphetamine.
Wilson pleaded not guilty to a three-count indictment charging him with (1) being a felon in possession of a firearm and an armed career criminal (18 U.S.C. §§ 922(g)(1), 924(a), 924(e)), (2) possessing methamphetamine with intent to distribute (21 U.S.C. § 841(a)(1)), and (3) carrying a firearm during and in relation to a drug trafficking crime (18 U.S.C. § 924(c)(1)). The district court denied Wilson's motion to suppress the evidence seized at the checkpoint without conducting an evidentiary hearing. Wilson's first trial began on March 3, 1992, and resulted in a guilty verdict on count 1. The court declared a mistrial as to the other two counts when the jury was unable to reach a verdict. A second trial began on May 4, 1992, and the jury returned guilty verdicts on counts 2 and 3.
On August 24, 1992, Wilson filed written objections to the presentence report ("PSR"), challenging the determinations that he qualified as an "armed career criminal" under 18 U.S.C. § 924 and that he possessed over 10 grams of "pure" methamphetamine at the time of his arrest. On August 28, 1992, Wilson filed a motion for an evidentiary hearing to determine whether the jury in the first trial relied on an alleged comment by the district court in reaching its verdict. On September 11, 1992, the district court denied Wilson's objections to the PSR and motion for an evidentiary hearing, and sentenced Wilson to 387 months imprisonment.
Wilson argues that the district court erred in denying his motion to suppress the evidence seized from the checkpoint searches. "Whether detention at a permanent immigration checkpoint violates an individual's Fourth Amendment rights is a question of law reviewed de novo." United States v. Koshnevis, 979 F.2d 691, 693 (9th Cir. 1992). A district court's decision whether to hold an evidentiary hearing on a motion to suppress is reviewed for abuse of discretion. United States v. Mejia, 953 F.2d 461, 465 (9th Cir. 1991), cert. denied, 112 S. Ct. 1983 (1992). Testimony given at trial may be used to sustain the denial of a motion to suppress, even if the testimony was not presented at the motion hearing. United States v. Sanford, 673 F.2d 1070, 1072 (9th Cir. 1982).
A. Referral to Secondary Inspection
Wilson first claims that no immigration purpose justified referring the car to the secondary inspection area. A vehicle may be stopped at permanent immigration checkpoints for brief initial questioning and referred to a secondary inspection area for further questioning "in the absence of any individualized suspicion." United States v. Martinez-Fuerte, 428 U.S. 543, 562, 49 L. Ed. 2d 1116, 96 S. Ct. 3074 (1976); see United States v. Barnett, 935 F.2d 178, 180 (9th Cir. 1991).*fn1 Martinez-Fuerte dealt only with immigration-related stops and did not address the legality of investigating for drugs at immigration checkpoints. Barnett, 935 F.2d at 181. We will not inquire into an agent's subjective purpose in referring a car to secondary inspection, however, absent objective evidence supporting a charge of pretext. Koshnevis, 979 F.2d at 694; Barnett, 935 F.2d at 181.
As evidence that referring the car to secondary inspection was a pretext for a narcotics search, Wilson claims that (1) Agent Teeple spoke to Akin and was able to look inside the car during the primary inspection; (2) the agents never asked to look in the hatchback area of the car; (3) Agent Kocan testified that he intended to conduct a canine exterior sniff as soon as the car was referred to secondary inspection; and (4) no agent questioned Wilson regarding his citizenship. None of these factors indicates that the referral to secondary inspection was pretextual. Agent Teeple observed that Wilson and Akin were extremely nervous. Although Teeple could see both of them in the car, he could not determine at primary inspection whether any illegal aliens were hidden in the car. The agents' failure to search the hatchback is not significant given that the Firebird has a window over the back that allows vision into the trunk area. Moreover, running the detector dog constituted a search of the entire car, including the hatchback. The immediate use of a dog in secondary inspection is not evidence of pretext, as the dog is trained to detect hidden persons as well as drugs. Finally, although both agents testified that Agent Kocan asked Wilson his citizenship, a failure to ascertain Wilson's citizenship would have been irrelevant to the valid immigration purpose of investigating alien smuggling.*fn2
A lack of certainty as to the reason for nervous behavior or the nature of suspected contraband does not amount to pretext. Because Agent Teeple testified that the referral to secondary inspection was for a further immigration inspection, and because Wilson presents no evidence suggesting that this was not the case, the referral to secondary ...