U.S. v. Hernandez
U.S. v. Hernandez
Opinion
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
__________________
No. 92-8111 Conference Calendar __________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee, versus
ELENA HERNANDEZ,
Defendant-Appellant.
- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas
- - - - - - - - - - (October 22, 1992)
Before DUHÉ, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:
Elena Hernandez was charged with conspiracy to possess
marijuana with intent to distribute and possession of marijuana
with intent to distribute after marijuana was found in her car
during a search at a permanent border patrol checkpoint. Her
motion to suppress was denied, and she entered a conditional
guilty plea to count two of the indictment, reserving her right
to appeal the denial of the motion to suppress. She was
sentenced to 33 months imprisonment and 3 years supervised
release.
Hernandez argues that her initial detention at secondary and
the exterior canine search of her car were unconstitutional. The
determination that a search or seizure did not violate the fourth No. 92-8111 -2-
amendment is a question of law reviewed de novo. U.S. v.
Martinez-Perez,
941 F.2d 295, 297(5th Cir. 1991), cert. denied,
112 S.Ct. 1295(1992).
"[S]tops for brief questioning routinely conducted at
permanent checkpoints are consistent with the Fourth Amendment
and need not be authorized by warrant." U.S. v. Martinez-Fuerte,
428 U.S. 543, 566,
96 S.Ct. 3074,
49 L.Ed.2d 1116(1976). Border
patrol agents may stop motorists, question them about their
citizenship, and selectively refer them to secondary without
individualized suspicion.
Id. at 562-63. Agents may also make
referrals to conduct inquiries about controlled substances. See
U.S. v. Dovali-Avila,
895 F.2d 206, 207(5th Cir. 1990).
Border patrol agents, however, may not conduct a warrantless
search of the referred vehicle without consent or probable cause.
Dovali-Avila,
895 F.2d at 207. A canine "sniff" of the exterior
of a car does not constitute a search within the fourth
amendment. Dovali-Avila,
895 F.2d at 207-80; U.S. v. Gonzalez-
Basulto,
898 F.2d 1011, 1013(5th cir. 1990).
Border Patrol Agent Arzate properly referred Hernandez's car
to secondary and conducted a canine "sniff." Once the dog
alerted Arzate had probable cause to search the car and legally
discovered the marijuana. Gonzalez-Basulto,
898 F.2d at 1013.
The district court properly denied the motion to suppress.
AFFIRMED.
Reference
- Status
- Published