United States v. Abernathy

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 14, 1999
• Docket: 99-40222
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40222 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ERIK JACKSON ABERNATHY,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-98-CR-833-1 --------------------

December 14, 1999

Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Erik Jackson Abernathy appeals from the district court’s

denial of his motion to suppress the cocaine seized from his

person. He argues that a Border Patrol agent’s request that he

stand up from his seat on a passenger bus detained at a fixed

Border Patrol checkpoint constituted an illegal seizure under the

Fourth Amendment and that the agent’s touch of an object

concealed in Abernathy’s waistband constituted an illegal search.

We have reviewed the record and find no reversible error. The

agent’s questioning of Abernathy was within the scope allowed for

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 99-40222 -2-

a fixed checkpoint detention. United States v. Martinez-Fuerte,

428 U.S. 543, 556-62 (1976); United States v. Hernandez, 976 F.2d

929, 930 (5th Cir. 1992). The district court did not err in

declining to decide whether the touch violated the Fourth

Amendment, because a subsequent canine sniff provided probable

cause to search Abernathy.

AFFIRMED.