UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50832
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
VERSUS
DELPHINE LUSTER,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Texas
(01-CR-5)
October 25, 2002
Before WIENER, EMILIO M. GARZA, and PARKER, Circuit Judges.
*
PER CURIAM:
We must determine whether the district court erred by basing
its decision to suppress cocaine seized by a Border patrol agent
during a routine immigration checkpoint inspection on a
determination that the agent extended his immigration stop to
*
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this opinion should not be published and is not precedent except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.
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search for drugs without reasonable suspicion of criminal activity.
We vacate and remand.
I. Background.
On December 13, 2000, a Greyhound Bus entered the Sierra
Blanca Immigration Checkpoint, east of El Paso on Interstate 10,
for inspection. Border Patrol agents opened its cargo bay and
conducted an inspection, including the use of canines. During that
time, Border Patrol Agent Jade Woodruff entered the passenger area
of the bus and proceeded down the aisle ascertaining nationality
status and making occasional inquiries about illegal drugs.
Approaching the rear of the bus, he observed a blue duffel bag
in the overhead rack but nobody sitting near it. The United States
(“the Government”) asserts that his attention was drawn to the bag
specifically because nobody was seated near it and that in his
experience, passengers attempt to disassociate themselves from bags
containing illegal drugs by placing them away from the area in
which they are seated.
Agent Woodruff asked whose bag it was and the Appellee,
Delphine Luster, identified it as hers. The accounts of the
parties are sharply divided at that point. The Government contends
that Agent Woodruff asked for Luster’s consent to look inside the
bag and that she replied, “Sure, go ahead.” Luster asserts that
she was never asked for nor granted consent to look in the bag.
Instead, she contends that Woodruff manipulated or “squeezed” the
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bag and then opened it without her consent.
Agent Woodruff testified that after Luster gave permission,
she said, “Oh, it’s just my bed sheets,” which he thought to be an
odd thing to be carrying in that manner. Inside the bag, Agent
Woodruff found “insignificant pieces of linen” and, upon moving
them, felt a hard bundle. His past experience made him believe
that it was a likely package of illegal drugs.
He asked or told Luster to leave the bus and then had the bag
subjected to a canine “sniff.” Why he did so, given his assertion
that Luster had given consent to search the bag, is unclear. The
dog alerted and Border Patrol Agents then extracted a bundle of
cocaine from the bag.
In the district court, Luster moved to suppress the evidence
from the seizure. She argued that the stop of the bus was extended
impermissibly because Woodruff had no “reasonable suspicion.”
Further, she asserted that Woodruff’s alleged squeezing of the bag
was illegal under Bond v. United States, 529 U.S. 334 (2000).
The district court ruled on August 9th, 2001, that Agent
Woodruff did not have reasonable suspicion to extend the stop of
the bus and make his inquiries of Luster. The court so ruled
because the “totality of objective factors on which Agent Woodruff
relied” were that he “noticed the blue duffel bag in the overhead
bin, asked to who it belonged, and that the Defendant, sitting a
few seats away, said that it belonged to her.” See United States
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v. Luster, No. P-01-CR-5, at 3 (W.D. Tex. Aug. 13, 2001). The
court found that this set of facts did not support reasonable
suspicion, which it held as required to extend the stop long enough
for an inquiry. The court did not rule on the issue of whether
Agent Woodruff obtained Luster’s consent, nor on Luster’s claim
that Woodruff impermissibly manipulated the bag.
The Government appeals, largely on the basis of our opinion in
United States v. Machuca-Barrera, 261 F.3d 425 (5th Cir. 2001),
rehear’g denied.
II. Standard of Review.
When considering a ruling on a motion to suppress, we review
questions of law de novo and factual findings for clear error.
United States v. Hernandez, 279 F.3d 302, 306 (5th Cir. 2002);
United States v. Jones, 234 F.3d 234, 239 (5th Cir. 2000). A
finding is clearly erroneous if the court is left with the
“definite and firm conviction that a mistake as been committed.”
Hernandez, 279 F.3d at 306 (quoting Anderson v. City of Bessemer
City, 470 U.S. 564, 573 (1985)). Additionally, the court views the
evidence in the light most favorable to the party that prevailed in
the district court. Hernandez, 279 F.3d at 306; Jones, 234 F.3d at
239. The district court may be affirmed on any basis established
by the record. United States v. McSween, 53 F.3d 684, 687 n.3 (5th
Cir.), cert. denied, 516 U.S. 874 (1995).
III. Analysis.
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Immigration checkpoints for the purpose of making
suspicionless stops to determine nationality or immigration status
are constitutional. United States v. Martinez-Fuerte, 428 U.S.
543, 566 (1976). Searches or further detention beyond this purpose
require consent or probable cause. Id. at 567. The validity of
suspicionless stops at a checkpoint depends on the “programmatic
purpose” of the checkpoint. City of Indianapolis v. Edmond, 531
U.S. 32, 46 (2000). Checkpoints created to control “ordinary
criminal wrongdoing,” id. at 41, or to interdict drugs, id. at 47-
48, are invalid programmatic purposes. An immigration stop is a
valid programmatic purpose for such a suspicionless stop. Machuca-
Barrera, 261 F.3d at 433.
Luster continues to argue on appeal that Agent Woodruff’s
request for consent to search her bag exceeded the scope of the
immigration search and impermissibly extended its duration. The
Government counters that Agent Woodruff’s actions were within the
durational scope of the immigration stop under Machuca-Barrera.
Id. at 432. The issue, however, is not the scope or duration of
the search but whether a law enforcement officer may ask an
individual for consent to answer questions or submit to a
consensual search, without a need for reasonable suspicion or
probable cause.
“[L]aw enforcement officers are always free to question
individuals if in doing so the questions do not effect a seizure.”
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Id. (citing United States v. Shabazz, 993 F.2d 431 (5th Cir.
1993)). The United States Supreme Court has addressed this issue
in its latest term. Where bus passengers are asked, without
coercion, by law enforcement agents for voluntary consent and are
questioned or searched by consent, the passengers are not “seized”
under the Fourth Amendment. United States v. Drayton, ___U.S.___,
122 S. Ct. 2105, 2110 (2002)(where passengers are free to
participate or to leave, there is no coercion or seizure when
plainclothes officers showing badges and carrying concealed weapons
request passengers for consensual questioning and searches).
“Police officers act in full accord with the law when they ask
citizens for consent.” Id. at 2114. Whether such consent has been
granted is determined by the totality of the circumstances. Id. at
2113-14.1
In this case, Luster and the other passengers on the bus may
have been required to submit to an immigration stop, but there is
no assertion of being coerced into consenting to answering
unrelated questions or submitting to a baggage search. Luster
admits that Agent Woodruff asked several other passengers for
permission to search belongings; such a request dispels the notion
1
We note that our opinion in Machuca-Barrera, which
interprets scope of permissible questioning and inspection in terms
of duration consistent with its programmatic purpose, see 261 F.3d
at 432, may be at odds with Drayton’s “totality of the
circumstances” approach to determining consent. We need not
resolve that aspect of Machuca-Barrera in this examination of
officer-requested consent, however.
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that a passenger’s consent, where granted, was other than
voluntary. Id. There was no requirement for Agent Woodruff to act
under reasonable suspicion or to obtain probable cause to ask for
such consent. Id. At issue, however, is whether Luster actually
consented to the search of her bag. The district court did not
make a determination on that point when it ruled that Agent
Woodruff had impermissibly extended the inspection to ask consent
without reasonable suspicion. The answer to that question will, in
part, determine whether the cocaine found in Luster’s bag was
properly seized or excluded.
The district court should consider Luster’s contention that
Agent Woodruff did not obtain her consent but simply ordered her
off of the bus to conduct a canine “sniff,” as well as her
contention that he squeezed or manipulated her bag before opening
it or obtaining any permission. When a bus passenger places a
soft-sided bag in an overhead bin, she expects that it may be moved
or touched by other passengers or employees. She does not expect
that those others will, as a matter of course, feel the bag in an
exploratory manner. For a law enforcement agent to do so is a
violation of that expectation and of the Fourth Amendment, and is
therefore impermissible. See Bond, 529 U.S. at 338-39. The
district court’s order does address, with some concern, Luster’s
assertion that Woodruff squeezed the bag, noting that Bond
invalidates the Border Patrol’s practice of “squeeze and sniff”
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searches on board a bus. The court did not make a credibility
judgment as to whether the squeeze actually happened, however, but
merely offered the observation as a caution. Making such a
determination may provide Luster with a defense to a finding of
having granted consent.
IV. Conclusion.
For the reasons stated herein, we VACATE the order of the
district court and REMAND for a determination of whether consent
had been granted for the bag search and whether Agent Woodruff
squeezed or manipulated it beforehand.
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