Marrufo

MEMORANDUM **

Petitioner Martin Marrufo and a passenger were arrested at an immigration control checkpoint after agents performing a secondary search of his pickup truck discovered methamphetamine in the truck’s spare tire. Before that discovery Marrufo also produced a small quantity of marijuana from his pocket in response to an agent’s demand that he tell them where any contraband was hidden because they would find it anyway. The secondary search was conducted after a dual purpose dog, one trained to recognize the scent of both humans and drugs, alerted to the rear portion of the truck. After their arrest, Marrufo and his passenger were transferred to the custody of the Drug Enforcement Administration. Both were advised of their Miranda rights and questioned. Marrufo waived his rights and made two statements, but his passenger asserted his rights and refused to talk. The passenger was released and never charged, but Marrufo was tried and convicted of possession of methamphetamine with intent to distribute under 21 U.S.C. § 841 (a)l and 18 U.S.C. § 2 .

The district court did not err in deciding that the passenger’s bare assertion of his Fifth Amendment rights following a…