United States of America v. Omar Ortiz-Flores

This disposition is not appropriate for publication and is not precedent except as*
provided by 9th Cir. R. 36-3.
** The Honorable Suzanne B. Conlon, United States District Judge for the Northern
District of Illinois, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OMAR ORTIZ-FLORES,
Defendant - Appellant.
No. 11-50095
D.C. No. 3:10-cr-02692-JM-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Argued and Submitted December 5, 2011
Pasadena, California
Before: PREGERSON and MURGUIA, Circuit Judges, and CONLON, District
Judge.**
Defendant-Appellant Omar Ortiz-Flores (“Ortiz-Flores”) appeals the district
court’s denial of his motion to suppress evidence in connection with his conviction
for possession of heroin with intent to distribute in violation of 21 U.S.C. §
FILED
DEC 21 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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841(a)(1). We have jurisdiction over this matter pursuant to 28 U.S.C. § 1291.
The facts are known to the parties and we do not recite them here.
A stop at a permanent immigration checkpoint, like the San Clemente
checkpoint, is constitutional as long as the detention is limited to a few brief
questions about immigration and the production of immigration documents.
United States v. Preciado-Robles, 964 F.2d 882, 884 (9th Cir. 1992) (citing United
States v. Martinez-Fuerte, 428 U.S. 543, 558 (1976)). Whether or not the Border
Patrol agent in this case impermissibly extended the immigration stop, the search
of Ortiz-Flores’s backpack and the search of his person must be justified by
consent or probable cause. Martinez-Fuerte, 428 U.S. at 566-67.
When the prosecution “seeks to rely upon consent to justify the lawfulness
of a search, [the prosecution] has the burden of proving that consent was, in fact,
freely and voluntarily given.” Schneckloth v. Bustamonte, 412 U.S. 218, 222
(1973) (internal citations and quotation marks omitted). Whether consent was
voluntary is determined by the totality of the circumstances. United States v.
Castillo, 866 F.2d 1071, 1082 (9th Cir. 1988). This Court looks to five factors,
none of which is dispositive, to guide its voluntariness inquiry: (1) whether Ortiz-
Flores was in custody; (2) whether the officers had their guns drawn; (3) whether
Miranda warnings were given; (4) whether Ortiz-Flores was notified that he had a

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right not to consent; and (5) whether Ortiz-Flores had been told a search warrant
could be obtained. United States v. Brown, 563 F.3d 410, 415 (9th Cir. 2009).
In concluding that Ortiz-Flores voluntarily consented to the searches of his
backpack and person, the district court failed to apply the correct legal standard for
determining whether consent was free and voluntary. Although we only reverse a
finding of voluntariness if clearly erroneous, Castillo, 866 F.2d at 1082, such
deference is not warranted where, as here, the district court applied the wrong legal
standard. United States v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en
banc).
Here, three factors indicate that the consent was involuntary: (1) Ortiz-
Flores was seized at the time he gave putative consent, see Preciado-Robles, 964
F.2d at 884 (“A stop at a permanent immigration checkpoint constitutes a ‘seizure’
within the meaning of the Fourth Amendment.” (citing United States v. Martinez-
Fuerte, 428 U.S. 543, 556 (1976))); (2) the agent did not give Ortiz-Flores
Miranda warnings; and (3) the agent did not tell Ortiz-Flores he could refuse
consent. Two factors weigh in favor of voluntariness: (1) guns were not drawn;
and (2) the agent did not tell Ortiz-Flores that he could obtain a search warrant.
Considering these facts in light of the totality of the circumstances and the context
in which the searches took place, we find that Ortiz-Flores did not voluntarily

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consent to the backpack search or the pat-down search.
Additionally, the backpack and pat-down searches cannot be justified by the
extended border search doctrine because the government has not shown with
reasonable certainty that Ortiz-Flores carried the drugs into the United States.
United States v. Villasenor, 608 F.3d 467, 471-72 (9th Cir. 2010) (reasonableness
of extended border search depends on, inter alia, whether the totality of the
circumstances convinces the fact finder with “reasonable certainty” that any
contraband on the vehicle at the time of the search was aboard that vehicle at the
time of entry into the United States).
Furthermore, the agent did not have probable cause to search Ortiz-Flores’s
backpack. See Graves v. City of Coeur D'Alene, 339 F.3d 828, 841-45 (9th Cir.
2003) (officer lacked probable cause to search backpack where suspect was
protesting parade held by group known for violence; threats had been made
suggesting that violence would take place during parade; protester had heavy
backpack that appeared to contain objects shaped like pipe bombs; officer was
aware of prior bombing caused by backpack bomb; and protester became
increasingly loud during confrontation with officer), abrogated on other grounds
by Hiibel v. Sixth Judicial Dist. Ct. of Nev., Humboldt County, 542 U.S. 177
(2004); see also Florida v. Royer, 460 U.S. 491, 501-06 (1983). Therefore, the

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backpack search was unlawful.
Because the agent would not have had reasonable suspicion to conduct the
pat-down search without the evidence obtained from the unlawful backpack search,
the pat-down search was also unlawful. See United States v. Hill, 55 F.3d 479, 481
(9th Cir. 1995) (per curiam) (holding that search warrant is invalid if officers’
decision to seek warrant was prompted by what they had seen during a prior,
unlawful search (citing Murray v. United States, 487 U.S. 533, 542 (1988))).
Accordingly, we REVERSE the district court’s denial of Ortiz-Flores’s
motion to suppress, and remand the matter to the district court for further
proceedings.

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