THE COURT MUST SUPPRESS ALL EVIDENCE IN THIS CASE BECAUSE THE BORDER PATROL AGENTS VIOLATED Mr. *'S FOURTH AMENDMENT RIGHTS

Although a brief stop at a permanent checkpoint is a seizure within the meaning of the Fourth Amendment, "brief questioning routinely conducted at permanent checkpoints [is] consistent with the Fourth Amendment . . . ." United States v. Martinez-Fuerte, 428 U.S. 543, 566 (1976); see also United States v. Preciado-Robles, 964 F.2d 882, 884 (9th Cir. 1992). Such questioning may not exceed "a brief question or two and possibly the production of a document evidencing a right to be in the United States." Martinez-Fuerte at 558 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 880 (1975)); see also Preciado-Robles at 884. At such a stop, Border Patrol agents may conduct a visual inspection of a vehicle, but may not search it. Id.

" The principal protection of Fourth Amendment rights at checkpoints lies in appropriate limitations on the scope of the stop." Martinez-Fuerte, at 566-67. Probable cause or consent must exist to support any detention that prolongs the initial stop and the brief questioning to determine the individual's legal right to remain in the United States. Id. at 567; Id. at 567; United States v. Preciado-Robles, 964 F.2d 882, 885 (1992).

In this case, the Border Patrol agents ascertained Mr. *'s identity and verified that he possessed legal status in the United States. The agents did not release Mr. * after discovering these facts, but prolonged his detention and interrogation.Pursuant to Martinez-Fuerte, the Fourth Amendment requires that the government prove probable cause to support the prolonged detention and interrogation of Mr. * at the checkpoint, or that he consented to the prolonged detention and interrogation. id.

A. The Agents Did Not Have Probable Cause to Search The Car. Probable cause must exist to justify a search of a vehicle stopped at a checkpoint that goes beyond a cursory visual inspection of the vehicle. United States v. Martinez-Fuerte, 428 U.S. 543, 567 (1976). The determination whether probable cause to search exists depends upon the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238 (1983).

In this case, the agent had the car driven by Mr. * searched after Mr. * provided him with proof that he possessed legal status in the United States by showing him his I-586 immigration papers. At the time of the search, the agent knew only that Mr. * "had an abnormally large smile and his eyes appeared to be abnormally large." Such cryptic facts alone do not support a finding of probable cause. Compare California v. Acevedo, 500 U.S. 565, 566-67 (1991) (requiring police to know that marijuana was in a special package delivered to an individual, the individual took possession of the package, the individual discarded the package concealing the marijuana after taking the package inside an apartment, and that defendant placed a full paper bag he removed from the same apartment in a car to support a finding of probable cause to search for marijuana; Gates, 462 U.S. at 246 (requiring police to know specific facts and to have corroborated them as a basis for a finding of probable cause).

The government may attempt to justify the prolonged detention of Mr. * by arguing that in the absence of probable cause the agents possessed reasonable suspicion to temporarily detain him pursuant to further investigation. That argument contradicts the rule of Martinez-Fuerte, which requires probable cause or consent as a basis to arrest or search at a permanent checkpoint. Moreover, sufficient facts do not exist to support a finding of reasonable suspicion in this case.

The Martinez-Fuerte Court stated clearly that probable cause must support a prolonged detention at a permanent checkpoint. Id. at 567. Reasonable suspicion simply is not sufficient to detain an individual for longer than the time it takes to complete the brief investigation described in Martinez-Fuerte. Since the Ninth Circuit misinterpreted Martinez-Fuerte, Mr. * urges this Court to reject the Preciado-Robles and United States v.Taylor, 934 F.2d 218 (9th Cir. 1991), decisions as erroneous.

In order to determine whether facts known to the police at the time of an investigatory detention and interrogation of an individual amount to reasonable suspicion, a court must consider the totality of the circumstances. United States v. Sokolow, 490 U.S. 1, 8 (1989). The Sokolow Court found the police had reasonable suspicion to stop and detain the defendant to investigate narcotics smuggling based upon the following facts: the arresting agent knew the defendant paid $2,100.00 cash for two-round trip airline tickets from Honolulu to Miami from a roll of $20.00 bills; the defendant traveled under an alias; Miami is a source city for illegal narcotics; the defendant remained in Miami for only 48 hours despite the fact that the flight takes 20 hours; based upon surveillance by other agents, the defendant appeared nervous throughout the trip; the defendant wore the same clothes during the trip; and the defendant did not check his luggage. Id. at 4-5.

In this case, the agent detained Mr. * for further investigation simply because his "eyes" and "smile" were unusually large." Under Martinez-Fuerte and Sokolow, such facts, without more, do not support a finding of reasonable suspicion to detain Mr. * beyond the point when he properly identified himself and established his legal right to be in the United States.

The Ninth Circuit has held that "increasingly nervous" behavior observed by Border Patrol agents during an investigation into the citizenship of a motorist at a fixed checkpoint provides "articulable suspicion" to justify further investigation. Preciado-Robles at 884; Taylor at 221. In this case, the facts do not reflect increasingly nervous behavior by Mr. * as the course of the detention progressed. For that reason, Preciado-Robles and Taylor are inapposite. In addition, the checkpoint in this case apparently is not permanent at all, providing even greater privacy right protection under the Fourth Amendment to Mr. *.

Given the factual basis to support a finding of reasonable suspicion described in Sokoiow, moreover, the Preciado-Robles and Taylor decisions do not accurately state facts to support a finding of reasonable suspicion. For that reason as well, Mr. urges this Court to reject those decisions as erroneous.

B. The Court Should Grant Mr. * an Evidentiary Hearing to Determine the Purpose of the Temporary Checkpoint.

The Supreme Court in Martinez-Fuerte created the requirement that the trial court determine the purpose or purposes of a checkpoint before it undertakes any analysis of whether the checkpoint comports with the Fourth Amendment. Martinez-Fuertes, 428 U.S. at 556. Given the foregoing facts, Mr. * requests such a hearing on the pre-trial motions date.

C. The Search of The Pick-Up Was Without Free And Voluntary Consent.

An individual must consent to any detention at a permanent checkpoint beyond the time it takes an agent to establish the individual's legal right to remain in the United States and to perform a cursory visual inspection of the vehicle driven by the individual. Martinez-Fuerte, at 567. When arguing that the search was pursuant to consent, the government always bears the burden of proving that consent was given, and that it was given freely and voluntarily. E.g., Florida v. Royer, 460 U.S. 491 (1983); United States v. Impink, 728 F.2d 1228 (1984).

Voluntariness is a question of fact to be determined from all the circumstances of a particular case. Schneckloth v. Bustamonte, 412 U.S. 218, 229 (1973). The government must show that, under the facts of the particular case, there was no duress or coercion, express or implied, and that the consent was unequivocal and specific. United States v. Page, 302 F.2d 81 (9th Cir. 1962)

The only evidence indicating Mr. * consented to a search of the car is a brief statement in the secondary agent's report that he asked Mr. * if he could check the truck with the agent's dog, and that Mr. * said that he could. The voluntariness of a consent to search is a factual question which is determined "by considering the totality of the surrounding circumstances." United States v. Kelley, 953 F.2d 562, 566 (9th Cir. 1992).

An evidentiary hearing will be required to determine the totality of the circumstances of the consent given in this case. As the Ninth Circuit has stated in this context in United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir. 1988):

We have previously indicated that several factors must be considered in determining whether consent is voluntary. None of them are dispositive. These factors include: (1) whether defendant was in custody; (2) whether the arresting officers had their guns drawn; (3) whether Miranda warnings had been given; (4) whether the defendant was told he has a right not to consent; and (5) whether defendant was told the search warrant could be obtained. The fact that some of these factors are not established does not automatically mean that consent was not voluntary.id.

The psychological atmosphere in which the consent is obtained is a critical factor in the determination of voluntariness. See Channel v. United States, 285 F.2d 217, 220 (9th Cir. 1960); Judd v. United States, 190 F.2d 649, 651 (D.C. Cir. 1951); United States v. Rothman, 492 F.2d 1260, 1265 (9th Cir. 1973). In looking at the factual issue of voluntariness, the court must be aware of the "vulnerable subjective state" of the defendant, as well as the possibility of "subtly coercive police questions." See Schneckloth v. Bustamonte, 412 U.S. 218, 229 (1973), and the inherently coercive nature of custodial interrogation. Id. at 247. See also United States v. Rothman, 492 F.2d 1260, 1265 (9th Cir. 1973).

Moreover, "although [the Ninth Circuit has] established these factors to aid in the decision-making process, the full richness of any encounter must be considered by the district court." United States v. Morning, 64 F.3d 531, 533 (9th Cir. 1995). "Every encounter has its own facts and its own dynamics. So does every consent." Morning, supra at 533.

An evidentiary hearing will be required so that the court may make factual findings specific to this particular encounter and the dynamics of this particular alleged consent to search, as well as determining the totality of the circumstances surrounding the giving of the consent in this case.In addition, the court must consider the scope of any alleged consent given. A search conducted pursuant to consent may not exceed the scope of the consent. Florida v. Jimeno, 500 U.S. 248 (1991). At the evidentiary hearing, the court will need to determine whether the objective reasonableness standard for measuring the scope of the consent was met. Id.

In the present case, Mr. * was not free to leave when he was asked for his consent. He had not been read his Miranda warnings. There is no indication that he was told he had a right not to consent. Under the circumstances, it appears that Mr. * acted in response to the authority of the agent.

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