IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40057
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROY VILLARREAL, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-476-1
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January 28, 2003
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Roy Villarreal, Jr. appeals the district court’s denial of
his motion to suppress after pleading guilty conditionally to
possession with intent to distribute marijuana. Villarreal’s
argument has several subparts. First, he argues that the
immigration checkpoint constituted a suspicionless roadblock
seizure which is unconstitutional. He bases his argument on
Justice Thomas’s dissent in City of Indianapolis v. Edmond, 531
*
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that this opinion should not be published and is not precedent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. 02-40057
-2-
U.S. 32 (2000). He acknowledges that present Supreme Court and
Fifth Circuit precedent allows for permanent immigration
checkpoints, but he raises the issue for the purpose of
preserving the issue for possible further review.
Second, Villarreal argues that the stop at the immigration
checkpoint exceeded the duration necessary for the officer to
ascertain his citizenship status and thus constituted an illegal
seizure. He argues that according to this Court’s decision in
United States v. Machuca-Barrera, 261 F.3d 425 (5th Cir. 2001),
the stop should have ended when Agent Alcorn was satisfied of his
citizenship. He contends that Agent Alcorn’s further questioning
extended the permissible duration of the stop beyond the purpose
of the stop, to determine his citizenship.
In Machuca-Barrera, 261 F.3d at 434, this Court upheld the
district court’s denial of the defendants’ motions to suppress
evidence where the defendants had been discovered to be smuggling
marijuana in their vehicle after being stopped at an “immigration
checkpoint” and asked, among other questions, whether they were
carrying firearms or drugs. Id. at 430. The Court stated:
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. It is the length of the
detention, not the questions asked, that makes a specific
stop unreasonable: the Fourth Amendment prohibits only
unreasonable seizures, not unreasonable questions * * * .
No. 02-40057
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Id. at 432 (footnotes omitted). Although this Court did not set
specific upper time limits applicable to immigration-related
stops at Border Patrol checkpoints, the Court stated:
The permissible duration of the stop was the amount of
time reasonably necessary for [the Border Patrol agent]
to ask a few questions about immigration status. [The
agent’s] few questions took no more than a couple of
minutes; this is within the permissible duration of an
immigration checkpoint stop.
261 F.3d at 435. This court stated that it would not scrutinize
the particular questions a Border Patrol agent asked as long as
they related generally to determining citizenship status. Id. at
433. “The key is the rule that a stop may not exceed its
permissible duration unless the officer has reasonable
suspicion.” Id. at 434. Because the agent’s questions to
Machuca-Barrera took no more than a couple of minutes, it was
within the permissible duration of an immigration checkpoint
stop. Id. at 435.
Villarreal was questioned for forty to fifty seconds in the
primary inspection lane. This was well within the couple of
minutes approved in Machuca-Barrera, and the time it took for
Agent Alcorn to question Villarreal about the ownership of the
vehicle did not extend the stop beyond its permissible duration.
Villarreal’s third argument is that there was no reasonable
suspicion to warrant his referral to secondary inspection for a
canine sniff. In Machuca-Barrera, this court stated that “if the
initial, routine questioning generates reasonable suspicion of
No. 02-40057
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other criminal activity, the stop may be lengthened to
accommodate its new justification.” 261 F.3d at 434. Agent
Alcorn’s testimony at the hearing supports the conclusion that
there was reasonable suspicion to refer Villarreal’s vehicle to
secondary inspection for further investigation. The district
court found that, in view of Agent Alcorn’s more than five years’
experience as a Border Patrol agent, a variety of factors taken
together gave rise to reasonable suspicion of criminal activity.
Villarreal gave inconsistent explanations concerning the
ownership of the truck and his ultimate destination. The truck
was unusually clean and did not show the signs of wear-and-tear
normally associated with vehicles of similar age and with the
typical early morning traffic of workers passing through the
checkpoint. Villarreal avoided eye contact with Agent Alcorn.
Finally, the district court noted that the checkpoint was located
in an area known for the frequency of arrests for narcotics and
illegal aliens, and Villarreal was stopped driving away from the
border.
Villarreal contends that these factors cannot establish
reasonable suspicion. He contends that the factors of his lack
of eye contact and the fact that he was stopped driving away from
the border in a corridor known for alien and drug smuggling are
entitled to no weight. He concedes that although the unusually
clean appearance of his vehicle could help to support a
No. 02-40057
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reasonable suspicion determination, that fact standing alone
cannot do so.
The Supreme Court recently rejected precisely this sort of
“divide-and-conquer analysis” of reasonable-suspicion
determinations in United States v. Arvizu, 122 S. Ct. 744, 751
(2002). The relevant inquiry is whether the “totality of the
circumstances” create a reasonable suspicion of criminal
activity. Id. Based on the testimony of Agent Alcorn at the
hearing, the district court did not err in determining that
reasonable suspicion existed to continue the checkpoint stop.
United States v. Inocencio, 40 F.3d 716, 721 (5th Cir. 1994)(de
novo review).
Lastly, Villarreal argues that the agents lacked probable
cause to search the vehicle after the canine alerted, because the
Government failed to produce evidence of the canine’s
reliability. He acknowledges that this issue has been decided
against him but raises it to preserve it for possible further
review.
Villarreal also argues that the sentencing scheme in 21
U.S.C. § 841(a) and (b) are unconstitutional after Apprendi v.
New Jersey, 530 U.S. 466 (2000). He acknowledges that this court
has rejected this argument and raises it solely to preserve the
issue for possible further review.
AFFIRMED.