UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-50476
UNITED STATES OF AMERICA
Plaintiff - Appellee,
versus
REYNALDO PORTILLO-AGUIRRE
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Texas, Pecos Division
November 1, 2002
Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
Reynaldo Portillo-Aguirre appeals both his conviction of
possession with intent to distribute cocaine and his sentence. He
challenges the denial of his motion to suppress evidence. The
issue is whether a Border Patrol agent unlawfully extended an
immigration checkpoint stop of a commercial passenger bus.
Concluding that the stop exceeded its permissible duration in
violation of the Fourth Amendment, we reverse and remand for entry
of a judgment of acquittal.
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I. BACKGROUND
On September 20, 2000, at about 10:15 p.m., an Americanos
passenger bus arrived at the Sierra Blanca immigration checkpoint.1
Border Patrol agents followed their usual procedure for inspecting
a commercial bus: the bus was directed to a secondary inspection
area; one agent opened the luggage bins located along the lower
exterior of the bus, allowing a second agent with a drug-detecting
dog to inspect the compartments; meanwhile, a third agent, Jade
Woodruff, boarded the bus. Once aboard the bus, Agent Woodruff
announced, in both English and Spanish, that he was performing an
immigration inspection and asked non-United States citizens to have
their documents ready.2 He then inspected each passenger as he
made his way down the aisle to the back of the bus. Portillo-
Aguirre was sitting in the fourth window seat from the front on the
driver’s side of the bus. His wife, Maria Portillo-Bringas, was in
the seat directly in front of him. At the suppression hearing,
Agent Woodruff testified that Portillo-Aguirre seemed nervous from
the moment the agents boarded the bus. Portillo-Aguirre’s
1
The Sierra Blanca checkpoint is permanent in nature. It is
located on Interstate Highway 10 about eighty miles southeast of El
Paso, Texas; four miles west of Sierra Blanca, Texas; and fourteen
air miles from the United States-Mexico border. Recognizing the
importance of Interstate 10 as an artery of domestic travel, this
court has held that the Sierra Blanca checkpoint is not a border
equivalent. See United States v. Jackson, 825 F.2d 853, 854 (5th
Cir. 1987) (en banc).
2
Agent Ted Barron, who initially boarded the bus with Agent
Woodruff, exited shortly thereafter and did not participate in
checking the immigration status of the passengers.
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documents indicated, however, that he was a resident alien, and
Agent Woodruff was satisfied that his presence in the United States
was lawful. So Agent Woodruff continued his inspection, which
included checking the bathroom at the back of the bus for illegal
aliens or narcotics.
After Agent Woodruff completed his immigration inspection, and
while he was returning to the front of the bus to exit, he noticed
a small carry-on bag underneath Portillo-Aguirre’s seat. Agent
Woodruff testified that he had not seen the bag earlier because
Portillo-Aguirre was sitting with his legs straight down and had a
pillow and a book on his lap. In other words, the bag was visible
only from behind Portillo-Aguirre’s seat. Agent Woodruff further
testified that Portillo-Aguirre appeared rigid and was looking
straight ahead, which aroused Agent Woodruff’s suspicion. Acting
on this suspicion, he began to question Portillo-Aguirre.
The first question was whether Portillo-Aguirre had a bag on
the bus. In response, Portillo-Aguirre pointed to a backpack
located in the overhead bin above his seat. Agent Woodruff then
asked Portillo-Aguirre if the bag beneath his seat belonged to him,
and Portillo-Aguirre indicated that it did. Agent Woodruff next
inquired about the contents of the bag, and, according to his
testimony, Portillo-Aguirre began to fidget nervously and replied
that the bag contained books and clothes. When Agent Woodruff
asked if he could look inside the bag, Portillo-Aguirre responded
by placing the bag in the empty aisle seat next to him and opening
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it. Portillo-Aguirre attempted to show that the bag contained only
books and clothes, but Agent Woodruff perceived that something was
concealed in the bottom of the bag. Agent Woodruff therefore
requested permission to search the bag himself, and Portillo-
Aguirre consented. Agent Woodruff moved aside the top objects in
the bag and discovered a brown tape-wrapped bundle that he
recognized as being consistent with narcotics packaging. As a
result of this discovery, Agent Woodruff arrested Portillo-Aguirre
and called for Agent Barron to remove Portillo-Aguirre from the
bus. When Agent Barron came aboard, Agent Woodruff informed his
colleague that he had seized marijuana or cocaine. As Agent Barron
was escorting him off the bus, Portillo-Aguirre turned and said,
“It’s cocaine.”
After the arrest, Agent Woodruff noticed another bag under the
seat in front of the one where Portillo-Aguirre had sat. Although
different in color, the bag was identical in design to the one
seized from Portillo-Aguirre. Agent Woodruff questioned the
passengers and discovered that the bag belonged to Portillo-
Aguirre’s wife. She consented to a search, and Agent Woodruff
found another wrapped bundle. He then placed her under arrest and
escorted her off the bus.3 According to Agent Woodruff, the entire
stop lasted about ten minutes.
3
Both bundles contained cocaine. A grand jury charged both
Portillo-Aguirre and his wife with possession with intent to
distribute cocaine, but the government later dropped the charges
against her.
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The district court denied Portillo-Aguirre’s and his wife’s
motions to suppress the evidence obtained on the bus, holding that
the seizure of the bus at the checkpoint was constitutionally
permissible and that the Border Patrol has the authority to extend
an immigration seizure to investigate whether illegal drugs are on
board a vehicle if the agent is aware of specific articulable facts
that reasonably warrant suspicion. The court found that there was
reasonable suspicion to support the continued seizure of Portillo-
Aguirre and his fellow passengers based on the following facts:
Portillo-Aguirre was nervous; the bag under his seat could be seen
only from behind; when asked about his luggage, Portillo-Aguirre
initially pointed to his backpack in the overhead compartment; and
he became increasingly nervous as the questioning progressed.
Finally, the court held that Portillo-Aguirre voluntarily consented
to the search of his bag.
A jury convicted Portillo-Aguirre of possession with intent to
distribute cocaine in violation of 21 U.S.C. § 841(a)(1).4 He now
appeals his conviction and argues that the district court should
have granted his motion to suppress.
4
Portillo-Aguirre stipulated at trial that the substance seized
from him was cocaine and that, with packaging, the cocaine weighed
17.19 kilograms. Without packaging, the cocaine weighed 12.99
kilograms. Based on the presentence report, which erroneously
listed the net weight of the cocaine at 17.19 kilograms instead of
12.99 kilograms, the trial judge sentenced Portillo-Aguirre to 151
months’ imprisonment and five years of supervised release.
Portillo-Aguirre appeals his sentence and contends that the drug-
quantity error increased his base offense level from 32 to 34.
Because we reverse his conviction, we do not reach this issue.
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II. ANALYSIS
A. Standard of Review
In an appeal from the denial of a motion to suppress, we
review questions of law de novo and the district court’s factual
findings for clear error.5 “To the extent the underlying facts are
undisputed, as they essentially are here, we may resolve questions
such as probable cause and reasonable suspicion as questions of
law.”6
B. Seizure of the Bus
The Fourth Amendment provides that “[t]he right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated . . . .”7
“A search or seizure is ordinarily unreasonable in the absence of
individualized suspicion of wrongdoing.”8 When law enforcement
officers stop a vehicle at a highway checkpoint, a seizure within
the meaning of the Fourth Amendment has occurred.9 In United
States v. Martinez-Fuerte, however, the Supreme Court upheld the
constitutionality of permanent immigration checkpoints at which
5
United States v. Burbridge, 252 F.3d 775, 777 (5th Cir. 2001).
6
Blackwell v. Barton, 34 F.3d 298, 305 (5th Cir. 1994). Accord
United States v. Ibarra-Sanchez, 199 F.3d 753, 758 (5th Cir. 1999).
7
U.S. CONST. amend. IV.
8
City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000).
9
See id. at 40; United States v. Martinez-Fuerte, 428 U.S. 543,
556 (1976).
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travelers were stopped and briefly questioned about their
immigration status without individualized suspicion.10 Although not
supported by reasonable suspicion, the Court considered the
programmatic purpose of the stops—interdicting the flow of illegal
aliens—to be sufficient justification for checkpoint seizures.11
Balancing the government’s interest in enforcing its immigration
policy against the rights of those lawfully present in the United
States, the Court found that “[w]hile the need to make routine
checkpoint stops is great, the consequent intrusion on Fourth
Amendment interests is quite limited.”12 The Court further stated
that the principal protection of Fourth Amendment interests at
checkpoints “lies in appropriate limitations on the scope of the
stop.”13 Thus, any further detention beyond a brief question or two
or a request for documents evidencing a right to be in the United
States must be based on consent or probable cause.14
Passengers traveling on a commercial bus receive the same
degree of constitutional protection and are subject to the same
legitimate intrusions on their Fourth Amendment interests as those
10
See 428 U.S. at 566–67.
11
See Edmond, 531 U.S. at 37–39.
12
Martinez-Fuerte, 428 U.S. at 557.
13
Id. at 567.
14
See id. at 558, 567 (citing United States v. Brignoni-Ponce,
422 U.S. 873 (1975)).
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in private vehicles.15 Accordingly, immigration officers may detain
a busload of passengers at a permanent checkpoint and conduct an
immigration inspection without violating the passengers’ Fourth
Amendment right to be free from unreasonable seizures.16 We
therefore agree with the district court that the initial seizure of
Portillo-Aguirre and his fellow passengers on the Americanos bus
was constitutionally permissible.
C. Extension of the Seizure
Although the Supreme Court created a narrow exception to the
general requirements of reasonable suspicion and probable cause in
Martinez-Fuerte, it emphasized that appropriate limitations on the
scope of an immigration stop safeguard Fourth Amendment rights at
permanent checkpoints.17 In United States v. Machuca-Barrera, we
addressed those limitations in detail and noted that “[t]he scope
of an immigration checkpoint stop is limited to the justifying,
programmatic purpose of the stop: determining the citizenship
status of persons passing through the checkpoint.”18 It follows
that the permissible duration of an immigration stop is the “time
15
See Florida v. Bostick, 501 U.S. 429, 438 (1991).
16
See Men Keng Chang v. Jiugni, 669 F.2d 275, 279 (5th Cir.
1982) (recognizing that the stop of a bus at a permanent
immigration checkpoint is permissible even without reasonable
suspicion of wrongdoing).
17
See Martinez-Fuerte, 428 U.S. at 566–67.
18
261 F.3d 425, 433 (5th Cir. 2001). The district court did not
have the benefit of our opinion in Machuca-Barrera when it denied
Portillo-Aguirre’s motion to suppress.
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reasonably necessary to determine the citizenship status of the
persons stopped.”19 In this case, Agent Woodruff testified that he
had determined the citizenship status of the bus passengers before
he began to question Portillo-Aguirre about the bag underneath his
seat. Consequently, the issue is whether Agent Woodruff unlawfully
extended the stop beyond its permissible duration. Our cases
provide significant guidance on this issue.
In Machuca-Barrera, we considered the stop of an automobile at
a permanent immigration checkpoint. While questioning the driver
and his passenger about their citizenship, a Border Patrol agent
asked whether they were carrying any firearms or drugs.20 After
they answered in the negative, the agent asked for and received
consent to search the car.21 Agents discovered a large stash of
marijuana in the car’s trunk.22 On appeal from the denial of his
motion to suppress, Machuca-Barrera claimed that the agent’s
inquiry about drugs violated the Fourth Amendment because it was
not based on reasonable suspicion.23
In our analysis, we stated that the Constitution is violated
when a detention extends beyond the valid reason for the initial
19
Id.
20
Id. at 429–30.
21
Id. at 430.
22
Id.
23
Id.
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stop.24 “An officer may ask questions outside the scope of the
stop, but only so long as such questions do not extend the duration
of the stop.”25 Thus, we declined to second-guess the questions a
law enforcement officer chooses to ask and focused instead on
policing the duration of the stop.26 A stop may not exceed its
permissible duration unless the officer has reasonable suspicion of
criminal activity:
Of course, a Border Patrol agent may extend a stop
based upon sufficient individualized suspicion. For
extended detentions or for searches, Martinez-Fuerte
requires consent or probable cause. Also, if the
initial, routine questioning generates reasonable
suspicion of other criminal activity, the stop may be
lengthened to accommodate its new justification. Thus,
an agent at an immigration stop may investigate non-
immigration matters beyond the permissible length of the
immigration stop if and only if the initial, lawful stop
creates reasonable suspicion warranting further
investigation.27
The stop of Machuca-Barrera lasted only a couple of minutes.28
We found that this was within the permissible duration of an
immigration checkpoint stop.29 And we concluded that the Border
Patrol agent’s single question about drugs during the course of the
immigration inspection did not unlawfully extend the stop: “The
24
Id. at 432.
25
Id.
26
See id. at 433–34.
27
Id. at 434.
28
Id. at 435.
29
Id.
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brief stop by Agent Holt, which determined the citizenship status
of the travelers and lasted no more than a couple of minutes before
Agent Holt requested and received consent to search, was
constitutional.”30
Conversely, when officers detain travelers after the
legitimate justification for a stop has ended, the continued
detention is unreasonable. We have found that police violated the
Fourth Amendment by extending a stop even three minutes beyond its
permissible duration.
In United States v. Jones, officers stopped a car for a
speeding violation.31 The initial detention lasted about fifteen
minutes; during that period, the officers ran background checks and
questioned the driver and his passenger about their rental car.32
But after the police dispatcher informed the officers that neither
traveler had a criminal history and that their drivers’ licenses
were valid, the officers continued to detain them and eventually
obtained their consent to search the car, which contained
narcotics.33 This court reversed their convictions, holding that
the officers’ failure to release the defendants after discovering
that they had clean records violated the Fourth Amendment:
30
Id.
31
234 F.3d 234, 237 (5th Cir. 2000).
32
Id. at 237–39.
33
Id. at 238–39.
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The basis for the stop was essentially completed when the
dispatcher notified the officers about the defendants’
clean records, three minutes before the officers sought
consent to search the vehicle. Accordingly, the officers
should have ended the detention and allowed the
defendants to leave. And the failure to release the
defendants violated the Fourth Amendment.34
Similarly, in United States v. Dortch, highway patrol officers
stopped the defendant’s car for traveling too close to another
vehicle.35 Because the rental papers for the car Dortch was driving
did not list him as an authorized driver, the officers ran a
computer check on his license and the rental papers.36 After the
computer check turned up no reason to hold Dortch, the officers
nevertheless continued to detain him until a canine unit arrived
nearly five minutes later.37 With the help of the canine unit, the
officers eventually discovered that Dortch was concealing cocaine
underneath his clothing. We found, however, that Dortch should
have been free to leave when the computer check came back
negative.38 “Once he was not permitted to drive away, the extended
detention became an unreasonable seizure . . . .”39 Since there was
34
Id. at 241.
35
199 F.3d 193, 195 (5th Cir. 1999).
36
Id. at 195–96. The law enforcement purposes to be served by
the computer check were to ensure that there were no outstanding
warrants on Dortch and that the vehicle had not been stolen. Id.
at 199.
37
Id. at 196.
38
Id. at 199.
39
Id.
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no reasonable or articulable suspicion that Dortch was trafficking
in narcotics at the time the computer check was completed, we
reversed his conviction.40
With these authorities in mind, we return our focus to the
continued detention of Portillo-Aguirre after the immigration check
was completed. At the suppression hearing, Agent Woodruff
testified that his modus operandi for bus inspections in September
2000 was to verify the passengers’ citizenship status and then
begin looking for signs of narcotics trafficking. Because he
proceeded in this manner on the day he arrested Portillo-Aguirre,
we must first decide whether Agent Woodruff’s general method passes
constitutional muster. We find that it does not.
The Supreme Court has upheld brief, suspicionless seizures of
motorists at checkpoints created to intercept illegal aliens41 or
remove drunk drivers from the road.42 When the primary purpose of
a checkpoint is to intercept illegal narcotics, however, the
Supreme Court has held that the checkpoint violates the Fourth
Amendment.43 The Court reached this conclusion in City of
Indianapolis v. Edmond, where it pronounced: “We have never
approved a checkpoint program whose primary purpose was to detect
40
Id. at 199, 203.
41
See United States v. Martinez-Fuerte, 428 U.S. 543 (1976).
42
See Michigan Dep’t of State Police v. Sitz, 496 U.S. 444
(1990).
43
See City of Indianapolis v. Edmond, 531 U.S. 32, 47–48 (2000).
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evidence of ordinary criminal wrongdoing.”44 The government’s
interest in intercepting illegal drugs, the Court held, was
indistinguishable from the government’s interest in “ordinary crime
control.”45 Thus, as we recognized in Machuca-Barrera, “checkpoints
with the primary purpose of identifying illegal immigrants are
constitutional, and checkpoints with the primary purpose of
interdicting illegal drugs are not.”46 We have no doubt that the
primary purpose of the Sierra Blanca checkpoint is to investigate
immigration status. The fact that an initial stop at the
checkpoint is constitutional, however, does not leave us free to
ignore the unconstitutionality of suspicionless detentions designed
to intercept drug traffickers. Agent Woodruff’s method is
essentially an attempt to circumvent the Court’s holding in Edmond
by broadening the scope of an otherwise lawful immigration seizure
to include drug interdiction activity. But when the purpose of a
stop switches from enforcement of immigration laws to drug
interdiction, a Fourth Amendment violation occurs unless the Border
Patrol agent has individualized suspicion of wrongdoing. Again,
“[t]he key is the rule that a[n immigration] stop may not exceed
its permissible duration unless the officer has reasonable
44
Id. at 41.
45
Id. at 44.
46
261 F.3d at 431.
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suspicion.”47
It bears repeating that the permissible duration of an
immigration stop is the time reasonably necessary to determine the
citizenship status of the persons stopped.48 Here, the stop
unquestionably exceeded this permissible duration. Agent Woodruff
testified that an immigration inspection of a passenger bus
normally lasts three to five minutes, and he was confident that the
inspection in this case fell within that range because the bus was
not full. After determining the passengers’ citizenship status,
however, Agent Woodruff extended the stop for an additional three
to five minutes in order to investigate whether Portillo-Aguirre
was carrying illegal drugs. Thus, unlike in Machuca-Barrera, where
the Border Patrol agent inquired about drugs during the course of
the immigration inspection, Agent Woodruff had completed his
inspection before he turned his attention to drug interdiction.
And his testimony at the suppression hearing does not establish
that the initial, routine questioning of the passengers for
immigration purposes generated reasonable suspicion of criminal
activity. Although Agent Woodruff stated that Portillo-Aguirre
seemed nervous from the moment the agents boarded the bus, this
“generic claim of nervousness” does not justify the extension of
47
Id. at 434.
48
See id. at 433.
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the stop.49
Because Agent Woodruff did not develop reasonable suspicion
during his initial, lawful encounter with Portillo-Aguirre, our
final inquiry is whether he developed the requisite suspicion while
returning to the front of the bus to exit. This inquiry hinges on
the two articulated facts known to Agent Woodruff before he
extended the detention by questioning Portillo-Aguirre about his
luggage: (1) there was a bag underneath Portillo-Aguirre’s seat
that Agent Woodruff did not notice during the immigration
inspection because of the manner in which Portillo-Aguirre was
sitting, and (2) Portillo-Aguirre appeared rigid and was looking
49
United States v. Wood, 106 F.3d 942, 948 (10th Cir. 1997). We
have never held that nervousness alone is sufficient to create
reasonable suspicion of criminal activity. In fact, we often give
little or no weight to an officer’s conclusional statement that a
suspect appeared nervous. See, e.g., Dortch, 199 F.3d at 199;
United States v. Samaguey, 180 F.3d 195, 198–99 (5th Cir. 1999).
Other circuits have explicitly held that nervousness alone does not
justify detention beyond the permissible duration of a stop. See
United States v. Chavez-Valenzuela, 268 F.3d 719, 726 (9th Cir.
2001) (“We . . . hold today that nervousness during a traffic
stop—even the extreme nervousness Chavez-Valenzuela exhibited
here—in the absence of other particularized, objective factors,
does not support a reasonable suspicion of criminal activity, and
does not justify an officer’s continued detention of a suspect
after he has satisfied the purpose of the stop.”); United States v.
Salzano, 158 F.3d 1107, 1113 (10th Cir. 1998) (“Nervousness alone
cannot support reasonable suspicion of criminal activity. This is
because it is common for most people to exhibit signs of
nervousness when confronted by a law enforcement officer whether or
not the person is currently engaged in criminal activity.”)
(internal quotation and citations omitted); see also United States
v. Mesa, 62 F.3d 159, 162 (6th Cir. 1995) (“Although there are a
plethora of cases referring to a defendant appearing nervous,
nervousness is generally included as one of several grounds for
finding reasonable suspicion and not a ground sufficient in and of
itself.”).
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straight ahead.50
First, the fact that the manner in which Portillo-Aguirre was
sitting obscured the view of his bag does not support a finding of
reasonable suspicion. Agent Woodruff acknowledged that it was
perfectly normal for luggage to be obscured by people’s legs:
[A]s you’re walking off the bus, you’re facing everyone’s
back. So, I’m looking beneath the seats as I’m walking
off because there’s things you can’t see stored beneath
the seats from the front because people’s legs are in the
way . . . or . . . the particular piece of luggage is
pushed far back where you can’t see that as you’re
walking down the bus.
And during cross-examination by Portillo-Aguirre’s counsel Ray
Velarde, Agent Woodruff also admitted that there was nothing
inherently suspicious about the bag underneath Portillo-Aguirre’s
seat:
VELARDE: Now, there was nothing apparent about the bag
upon visual inspection that aroused your
suspicion. Correct?
WOODRUFF: Other than — no.
VELARDE: Nothing[?]
WOODRUFF: From where I stood, no.
VELARDE: It’s just a plain and ordinary bag.
WOODRUFF: It’s a bag that’s not visible from the front.
VELARDE: And this bag is not commonly used . . . by
50
The additional facts credited by the district court in finding
that Agent Woodruff had reasonable suspicion, i.e., that Portillo-
Aguirre initially admitted ownership of the backpack in the
overhead compartment alone and became increasingly nervous as the
questioning progressed, did not surface until after the detention
had been unlawfully extended. Consequently, they are irrelevant to
our inquiry.
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dope smugglers?
WOODRUFF: Not that I’m aware of.
VELARDE: That didn’t come into the picture?
WOODRUFF: No.
In short, neither the bag nor its location suggested that criminal
activity was afoot. If such common circumstances qualified as
reasonable suspicion, then most interstate travelers would be
subject to prolonged detention, for virtually any item of luggage,
from a handbag to a suitcase, is capable of housing illegal
narcotics.
Second, Agent Woodruff’s additional observation that Portillo-
Aguirre was sitting in an erect and rigid fashion and looking
straight ahead does not tip the scales in favor of reasonable
suspicion. Because consistency between a bus passenger’s posture
and the design of his seat is hardly suspicious, this fact can be
given little or no weight. Considering, then, the totality of the
circumstances, including the Border Patrol agent’s constitutionally
defective modus operandi, we conclude that Portillo-Aguirre’s
nervous appearance, the position of his luggage, and his erect
posture did not amount to reasonable suspicion of drug trafficking
or any other crime.
In Machuca-Barrera, we observed limitations on the use of
immigration checkpoints to stop and question people regarding their
citizenship status without individualized suspicion of wrongdoing.
Although we do not require Border Patrol agents to look the other
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way when evidence of criminal activity is before them, if an agent
does not develop reasonable suspicion of such activity before the
justifying purpose of a checkpoint stop has been accomplished, he
may not prolong the stop. Agent Woodruff did not develop
reasonable suspicion of criminal activity while he was questioning
the passengers on the Americanos bus about their citizenship
status. So, unless something occurred while Agent Woodruff was
returning to the front of the bus that raised reasonable suspicion
of criminal activity, thereby justifying his extension of the stop,
Portillo-Aguirre and his fellow passengers, like the motorists in
Jones and Dortch, should have been permitted to leave.51 As we have
explained, no such thing happened here. We therefore hold that the
extended detention became an unreasonable seizure in violation of
the Fourth Amendment.52
51
See Jones, 234 F.3d at 241; Dortch, 199 F.3d at 199.
52
Contrary to our dissenting colleague’s opinion, United States
v. Drayton, 122 S.Ct. 2105 (2002), is fundamentally distinguishable
from the present case and therefore does not govern our decision.
In Drayton, the passengers who consented to searches by
plainclothes police officers were not seized because the requests
for consent were made under circumstances in which a reasonable
person would feel free to refuse or otherwise terminate the
encounter: the passengers were on a Greyhound bus temporarily
parked at an ordinary bus terminal; the driver had left the bus to
complete paperwork inside the terminal building; passengers who
declined to cooperate or who chose to exit the bus at any time
would have been allowed to do so without argument; and it was
common for passengers to leave the bus for a cigarette or a snack
while the officers were on board. See id. at 2109–10, 2112.
In the present case, however, there is no dispute that
Portillo-Aguirre and his fellow passengers were “seized” during the
entire time that their bus was stopped at the Sierra Blanca
checkpoint. See Edmond, 531 U.S. at 40 (“[A] vehicle stop at a
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D. Search of Portillo-Aguirre’s Bag
Under the fruit of the poisonous tree doctrine, all evidence
derived from the exploitation of an illegal seizure must be
suppressed, unless the government shows that there was a break in
the chain of events sufficient to refute the inference that the
evidence was a product of the Fourth Amendment violation.53 In this
case, Portillo-Aguirre consented to the search of his bag.
Therefore, our finding of an illegal seizure does not definitively
determine whether the evidence derived from the search must be
excluded.54 “Consent to search may, but does not necessarily,
dissipate the taint of a fourth amendment violation.”55
In United States v. Chavez-Villarreal, we noted that when we
evaluate consent given after a Fourth Amendment violation, “[t]he
admissibility of the challenged evidence turns on a two-pronged
inquiry: whether the consent was voluntarily given and whether it
highway checkpoint effectuates a seizure within the meaning of the
Fourth Amendment.”); Martinez-Fuerte, 428 U.S. at 556
(“[C]heckpoint stops are ‘seizures’ within the meaning of the
Fourth Amendment.”). Thus, this case presents a very different
question from the one raised in Drayton. Our concern is not with
whether Portillo-Aguirre was seized, for he unquestionably was.
Instead, the question here is whether the seizure of Portillo-
Aguirre, his fellow passengers, and their bus extended beyond its
permissible duration in violation of the Fourth Amendment. For the
reasons we have given, we conclude that it did.
53
United States v. Rivas, 157 F.3d 364, 368 (5th Cir. 1998).
Thus, “[t]he burden of showing admissibility rests on the
government.” United States v. Chavez-Villarreal, 3 F.3d 124, 128
(5th Cir. 1993).
54
See Chavez-Villarreal, 3 F.3d at 127.
55
Id.
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was an independent act of free will.”56 “Voluntariness focuses on
coercion, and the second prong considers the causal connection
between the ‘consent’ and the prior constitutional violation.”57
Six factors bear on the voluntariness of the consent:
(1) the voluntariness of the defendant’s custodial
status; (2) the presence of coercive police procedures;
(3) the extent and level of the defendant’s cooperation
with the police; (4) the defendant’s awareness of his
right to refuse consent; (5) the defendant’s education
and intelligence; and (6) the defendant’s belief that no
incriminating evidence will be found. Although all six
factors are relevant, no single factor is dispositive.58
The district court considered these factors and found that
Portillo-Aguirre voluntarily consented to Agent Woodruff’s search
of his bag. Because this finding is entitled to great deference
under the clearly erroneous standard of review, we pretermit our
inquiry into voluntariness, as it is clear that the government
failed to prove that Portillo-Aguirre’s consent was an independent
act of free will.59 “Even though voluntarily given, consent does
not remove the taint of an illegal detention if it is the product
of that detention and not an independent act of free will.”60
To determine whether the consent was an independent act of
56
Id.
57
Dortch, 199 F.3d at 201.
58
United States v. Shabazz, 993 F.2d 431, 438 (5th Cir. 1993)
(internal quotation and citation omitted).
59
See Chavez-Villarreal, 3 F.3d at 128; Dortch, 199 F.3d at
201–02; Jones, 234 F.3d at 243.
60
Chavez-Villarreal, 3 F.3d at 127–28.
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free will and, thus, broke the causal chain between the consent and
the illegal detention, we must consider: (1) the temporal proximity
of the illegal conduct and the consent; (2) the presence of
intervening circumstances; and (3) the purpose and flagrancy of the
initial misconduct.61 First, Agent Woodruff’s testimony establishes
a close temporal proximity between the illegal conduct—the extended
detention—and the consent. Indeed, the illegal detention continued
until Portillo-Aguirre gave his consent, which came less than five
minutes after Agent Woodruff began questioning him about his
luggage.62 Second, “no circumstances intervened between the
detention and the consent, and there is no reason to think that
[Portillo-Aguirre] believed he was free to go during that time.”63
Finally, we have determined that Agent Woodruff executed bus
inspections in a manner inconsistent with the passengers’ Fourth
Amendment protection from unreasonable seizures. Because the
purpose of the extended detention was to “detect evidence of
ordinary criminal wrongdoing,”64 and was not supported by reasonable
suspicion, we find that “only suppression will serve the deterrence
61
Jones, 234 F.3d at 243; Chavez-Villarreal, 3 F.3d at 128.
62
See Jones, 234 F.3d at 243 (finding a close temporal proximity
because the detention that became prolonged and unreasonable after
the computer checks were completed continued up to the time of
defendant’s consent); Dortch, 199 F.3d at 202 (same).
63
Dortch, 199 F.3d at 202.
64
Edmond, 531 U.S. at 41.
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function of the exclusionary rule.”65 Thus, the three factors weigh
in favor of concluding that there was no consent.
In sum, even if the district court correctly found that
Portillo-Aguirre voluntarily gave his consent, the consent was not
valid. Instead, because the causal chain between the illegal
detention and Portillo’s Aguirre’s consent to the search of his bag
was not broken, the search was nonconsensual.66 And because there
was no valid consent to cure the Fourth Amendment violation, the
cocaine obtained during the search should have been suppressed.67
Portillo-Aguirre’s statement affirming that the wrapped bundle
contained cocaine is likewise inadmissible as fruit of the
poisonous tree.68 There being no other evidence sufficient to
convict him of possession with intent to distribute cocaine, the
district court must enter a judgment of acquittal on remand.69
III. CONCLUSION
The government has an interest in intercepting illegal drugs,
but the Supreme Court has held that this interest does not justify
suspicionless detentions. And we have often recognized that
“[m]otorists lawfully traveling on this nation’s roadways are
65
Chavez-Villarreal, 3 F.3d at 128.
66
Dortch, 199 F.3d at 202.
67
See id. at 202–03.
68
See Chavez-Villarreal, 3 F.3d at 126, 128.
69
See Dortch, 199 F.3d at 203.
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clothed with Fourth Amendment protection from arbitrary government
interference.”70 An individual’s decision to travel by bus does not
weaken this protection.71 If we were to find that the mere presence
of luggage in a vehicle stopped on an interstate highway
constitutes reasonable suspicion of criminal wrongdoing and
therefore justifies detention beyond the valid reason for the
initial stop, we would be ignoring the simple reality that
intrastate and interstate travelers carry luggage.72 Our holding
today reaffirms that those travelers are entitled to arrive at
their destinations free from arbitrary government interference.
Portillo-Aguirre’s conviction is REVERSED, and the case is
REMANDED for entry of a judgment of acquittal.
REVERSED AND REMANDED WITH INSTRUCTIONS.
70
United States v. Jackson, 825 F.2d 853, 858–59 (5th Cir. 1987)
(en banc).
71
See Florida v. Bostick, 501 U.S. 429, 438 (1991).
72
In the words of our sister circuit, “[t]o sanction a finding
that the Fourth Amendment permits [extended detention] based on
such a weak foundation would be tantamount to subjecting the
traveling public to virtually random seizures, inquisitions to
obtain information which could then be used to suggest reasonable
suspicion, and arbitrary exercises of police power.” United States
v. Wood, 106 F.3d 942, 948 (10th Cir. 1997).
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REAVLEY, Circuit Judge, dissenting:
I respectfully dissent. I can find no unreasonableness
or fault in the conduct of the officers. And I do not
believe that the majority gives due deference to the
district court who heard the relevant live testimony. Nor
do I believe that the majority properly applies the
deferential reasonable suspicion standard. Reasonable
suspicion is a considerably less stringent standard than
probable cause. See United States v. Wangler, 987 F.2d 228,
230 (5th Cir. 1993).
To begin, absent any show of coercion or extended
retention, the officers were free to ask the passengers
questions on the way to leaving the bus. The Supreme Court
said in United States v. Drayton that, even with no basis
for suspecting criminal activities, officers were free to
“pose questions, ask for identification, and request consent
to search luggage—provided they do not induce cooperation by
coercive means.” 122 S. Ct. 2105, 2110 (2002).
Furthermore, the officer’s brief pause was justified by
the circumstances. Portillo-Aguirre’s nervousness plus his
posture that concealed the bag so it could only be seen from
behind, together with the notorious history of the Sierra
Blanca checkpoint, provided sufficient reasonable suspicion
for Agent Woodruff to briefly extend the stop to ask
Portillo-Aguirre whether he had a bag. Woodruff testified
that drug seizures on the buses stopped at the checkpoint
were almost a daily event.
When Portillo-Aguirre pointed only to the backpack in
the overhead bin, Woodruff had all the more reasonable
suspicion to inquire about the bag beneath Portillo-
Aguirre’s seat. In my view Woodruff won additional time to
extend the detention when Portillo-Aguirre began to fidget
nervously and unsuccessfully shuffled the contents on the
top of the bag to persuade Woodruff that no contraband was
hidden beneath. I would hold that throughout this chain of
events, which in total lasted only a few minutes, the
detention did not lapse into the realm of an unreasonable
seizure in violation of the Fourth Amendment.
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