United States of America v. Bernard Mettle

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BERNARD METTLE,
Defendant - Appellant.
No. 12-50606
D.C. No. 2:12-cr-00724-PA-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted April 9, 2014 **
Pasadena, California
Before: FERNANDEZ, N.R. SMITH, and MURGUIA, Circuit Judges.
Bernard Mettle appeals from his conviction for possession with intent to
distribute methamphetamine, 18 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii). Mettle was
convicted after he pled guilty, subject to his right to appeal the district court’s
FILED
APR 18 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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denial of his motion to suppress physical evidence and incriminating statements
made to law enforcement officials. Because the district court correctly denied the
motion to suppress, we affirm Mettle’s conviction.
Mettle was detained at Los Angeles International Airport by Customs and
Border Protection Officers (CBPOs) who suspected that he might be smuggling
contraband in his alimentary canal. He was taken to a secondary inspection facility
and then to a hospital, where he was held for a monitored bowel movement. After
Mettle excreted thirty methamphetamine pellets, Homeland Security Investigations
(HSI) agents arrived and read him his Miranda rights. Mettle waived his rights
and confessed to the HSI agents that he had been attempting to smuggle narcotics
from Los Angeles to Tokyo.
We review de novo the denial of a motion to suppress, the legality of a
border search, and the voluntariness of a confession. United States v. Camacho,
368 F.3d 1182, 1183 (9th Cir. 2004) (motion to suppress, border search); United
States v. Gamez, 301 F.3d 1138, 1144 (9th Cir. 2002) (voluntariness of a
confession). In each case, we review the district court’s underlying factual
determinations for clear error. Id.
Mettle first challenges the admissibility of the methamphetamine pellets.
“[T]he detention of a traveler at the border, beyond the scope of a routine customs
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search and inspection, is justified at its inception if customs agents, considering all
the facts surrounding the traveler and her trip, reasonably suspect that the traveler
is smuggling contraband in her alimentary canal.” United States v. Montoya de
Hernandez, 473 U.S. 531, 541 (1985). Here, the CBPOs detained Mettle because
he was visibly nervous, gave suspicious answers to routine questions, had
purchased his plane ticket with cash shortly before his flight, and was traveling on
a flight that an individual smuggling methamphetamine pellets in his alimentary
canal had also tried to take two days earlier. “Based on these facts, the [CBPOs]
possessed reasonable suspicion of drug smuggling sufficient to support a detention
for monitored bowel movements.” United States v. Gonzalez-Rincon, 36 F.3d 859,
863 (9th Cir. 1994) (discussing circumstances similar to Mettle’s).
Mettle also challenges the admissibility of a confession he gave to HSI
agents after he waived his Miranda rights, claiming that neither the confession nor
the waiver were voluntary. To determine the voluntariness of a confession, “we
determine whether, ‘considering the totality of the circumstances, the government
obtained the statement by physical or psychological coercion or by improper
inducement so that the suspect’s will was overborne.’” United States v. Heller,
551 F.3d 1108, 1112 (9th Cir. 2009) (quoting United States v. Leon Guerrero, 847
F.2d 1363, 1366 (9th Cir.1988)).
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Mettle argues that he was coerced because he was handcuffed for the
majority of his detention and because he was not read his Miranda rights prior to
the arrival of the HSI agents; however, he fails to show how these circumstances
amount to “physical or psychological coercion.” Id. He also claims that he was
coerced because he had asked for the assistance of counsel and was denied.
However, even if Mettle had invoked his right to counsel, it would have been
permissible for officials to interrogate him, because he himself initiated further
discussion with the CBPOs once his excretion of the pellets was imminent. See
Shedelbower v. Estelle, 885 F.2d 570, 573 (9th Cir. 1989) (citing Smith v. Illinois,
469 U.S. 91, 95 (1984) (per curiam); Oregon v. Bradshaw, 462 U.S. 1039,
1042–45 (1983)).
Because there is no basis for finding that Mettle was coerced into
confessing, we conclude that his confession was voluntary. We also conclude that
his Miranda waiver was voluntary. See United States v. Bautista-Avila, 6 F.3d
1360, 1365 (9th Cir. 1993) (“[O]ur determination that [a defendant’s] confession
was voluntary is tantamount to a determination that his Miranda waiver was
voluntary.”).
Finally, Mettle argues that he was entitled to an evidentiary hearing on his
suppression motion. “‘An evidentiary hearing on a motion to suppress need be
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held only when the moving papers allege facts with sufficient definiteness, clarity,
and specificity to enable the trial court to conclude that contested issues of fact
exist.’” United States v. McTiernan, 695 F.3d 882, 891 (9th Cir. 2012) (quoting
United States v. Quoc Viet Hoang, 486 F.3d 1156, 1163 (9th Cir. 2007)). Mettle
points to six purportedly contested issues of fact, but the parties’ submissions
before the district court demonstrate that four of those issues are not in dispute. As
to the remaining two issues – whether Mettle asked for counsel and whether one of
the CBPOs pressured him to consent to an x-ray so that she could go home – the
government did not contest these facts in its opposition to Mettle’s suppression
motion. Because there were no contested issues of fact warranting further
proceedings, the district court did not abuse its discretion, id., in declining to give
Mettle an evidentiary hearing.
The district court did not err in denying Mettle’s suppression motion. The
final judgment of the district court is AFFIRMED.
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