FILED
NOT FOR PUBLICATION APR 28 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50600
Plaintiff - Appellee, D.C. No. 3:06-cr-01708-H-3
v.
MEMORANDUM *
RAFAEL MACIAS-ENCINAS,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Submitted April 15, 2011 **
Pasadena, California
Before: KOZINSKI, Chief Judge, D.W. NELSON and BYBEE, Circuit Judges.
In determining the reasonableness of a detention, we look to both (1) the
absolute length of the detention, “regardless of the police officers’ assiduousness in
seeking probable cause,” and (2) the context of the Terry stop length, i.e., “whether
*
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).
law enforcement officers unduly extended the detention by their lack of diligence.”
United States v. $191,910.00 in U.S. Currency, 16 F.3d 1051, 1059–60 (9th Cir.
1994); see Terry v. Ohio, 392 U.S. 1 (1968).
The forty-five minute stop here was not per se unreasonable. See United
States v. Sharpe, 470 U.S. 675, 685–86 (1985) (twenty-minute detention was
reasonable); United States v. Place, 462 U.S. 696, 710 (1983) (ninety-minute
detention was unreasonable). We also find that the context of this detention did not
render it unreasonable. The record does not indicate that, during the detention,
Defendant-Appellant Rafael Macias-Encinas (“Macias”) objected to being detained
in the heat or that he suffered any harm, injury, or ill effects from the heat.
Accordingly, we do not find that Macias’s discomfort rendered the detention
unconstitutional.
We likewise reject Macias’s argument that the U.S. Border Patrol agents
unnecessarily prolonged his detention by failing to diligently pursue their
investigation. The record indicates that the agents attempted to locate a narcotic
detector dog shortly after pulling over the truck in which Macias was a passenger.
The border patrol agents diligently located a narcotics dog from the nearest
checkpoint as soon as they knew where it was needed.
AFFIRMED.
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