Revised March 4, 2003
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 02-40083
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JULIAN GARCIA-GARCIA
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
January 28, 2003
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
KING, Chief Judge:
Defendant-Appellant Julian Garcia-Garcia appeals the ruling
by the District Court for the Southern District of Texas denying
his motion to suppress evidence seized at a fixed immigration
checkpoint. We affirm.
I. FACTS AND PROCEDURAL BACKGROUND
On June 2, 2001, border patrol agents conducted an
immigration inspection of a northbound bus traveling through the
inspection lane at a fixed checkpoint about fifteen miles north
of Laredo. Agent Gutierrez entered the bus to question the
passengers, while Agent Zelmer led a trained dog to search the
undercarriage of the bus. Gutierrez noticed Julian Garcia-Garcia
(“Garcia”) sitting alone near the back of the bus. Garcia was
nervously playing with a piece of paper, which he pocketed before
handing the agent his resident alien card. The agent also
noticed that Garcia appeared anxious, was sweating, and mumbled
answers concerning his citizenship.
Before Gutierrez had finished verifying the immigration
status of the rest of the passengers on the bus, he noticed
Zelmer and the dog get on the bus. Zelmer had taken the dog to
check the luggage bins in the undercarriage of the bus. The
canine alerted in the bin nearest to the rear tires; however, the
dog alerted not to the suitcases in the bin but rather to the
bin’s ceiling (or, in other words, to the floor of the passenger
compartment). Zelmer said that, based on his prior experience,
the dog’s signal indicated that narcotics might be hidden in the
bathroom located at the rear of the bus.
Once inside the bus, the dog pulled Zelmer to the rear of
the vehicle. At the suppression hearing, Zelmer explained that
the detection of drugs by the dog is a two-part process. First,
the dog “alerts” to the odor; the dog’s respiratory rate
increases and the dog generally appears more excited and alert as
it picks up speed and attempts to locate the source of the odor.
2
Second, the dog “indicates” the odor by, in the case of a
“passive alert” dog like the one used in this case, sitting or
standing nearby and staring at the source. Zelmer testified
that, when the dog walked down the aisle, bypassed Garcia,
stopped, and turned around, “that’s an alert in my book.” When
the dog then moved in behind Garcia’s seat and put its nose
underneath his seat, that indication demonstrated that the dog
had traced the odor to Garcia.1 While Zelmer maintains that the
dog, in diving under the seat to indicate the source of the odor,
never made contact with Garcia and did not sniff him individually
at close range, Garcia claims that the dog both sniffed him and
touched its nose to his pants and shoes. Garcia admits that the
dog did not hurt him in any way, either by scratching him,
knocking him over, or biting him.
Zelmer asked Garcia “what he had”; Garcia lifted his shirt
to reveal packages taped to his body. Zelmer told Gutierrez, and
Garcia lifted his shirt to show Gutierrez the packages. The
agents removed Garcia from the bus; when Garcia was exiting, the
dog again alerted to him. Zelmer led the dog back into the bus,
where a full inspection triggered no additional alerts. Garcia
was subsequently searched at the secondary checkpoint complex;
1
Zelmer testified that the dog’s normal method of
indication is to sit or stand next to the source of the odor.
However, the confined surroundings of the bus and narrow width of
the aisle made it impossible for the dog to indicate normally.
3
additional packages were found taped to his lower legs, and all
of the packages contained marijuana.
On July 3, 2001, Garcia was charged with possession of
marijuana and possession of marijuana with intent to distribute.
Garcia filed a motion to suppress the evidence seized as a result
of the dog sniff. Garcia argued that the evidence should be
suppressed because the dog alerted specifically to the bathroom
area. He contended that the police should have removed all of
the passengers from the bus before leading the dog in to search
the bathroom. Garcia also argued that the drugs should be
suppressed because the agents lacked any individualized
reasonable suspicion to permit the dog to sniff him.
The district court, while “[a]ccepting Defendant’s version
that the canine’s nose actually touched his lower leg,” denied
Garcia’s motion to suppress. The court found that the dog’s
alert in the luggage compartment was only to the “rear of the
bus” rather than to the bathroom specifically. The court also
stated that Garcia’s suggestion that the passengers should have
been removed was an unreasonable alternative. The district court
ultimately ruled that the agents’ actions were reasonable under
the circumstances and suppression of the evidence was not
warranted.2
2
The district court never specifically stated that it
considered the sniff-and-contact in this case to be a Fourth
Amendment search; the court said only that the agents had acted
reasonably and that there was “no basis for suppressing the
4
After his motion to suppress the marijuana failed, Garcia
pled guilty to the possession charge and was sentenced to 208
days in jail and three years’ supervised release. He appeals the
denial of his motion to suppress.
II. SNIFF-AND-CONTACT AS A FOURTH AMENDMENT SEARCH
“When reviewing a district court’s ruling on a motion to
suppress, we review questions of law de novo and accept the
factual findings of the trial court unless they are clearly
erroneous.” United States v. Kelly, 302 F.3d 291, 293 (5th Cir.
2002). We must also view the evidence in the light most
favorable to the party who prevailed in the district court.
United States v. Jones, 234 F.3d 234, 239 (5th Cir. 2000). Here
the district court “accepted” Garcia’s allegation that the dog
came into contact with his pants or shoes during the course of
the checkpoint stop. Because this finding of fact is not clearly
erroneous, we must presume that a “sniff-and-contact” occurred.
A. Drug-Sniffing Dogs at Immigration Checkpoints
The purpose of an immigration checkpoint is to verify the
immigration and naturalization status of the passengers in the
vehicles passing through the checkpoint. The Supreme Court has
held that this purpose is constitutionally sufficient to support
stopping all vehicles which pass through the checkpoint, even in
the absence of any individualized reasonable suspicion or
evidence in this case.”
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probable cause that a particular vehicle contains illegal
immigrants. United States v. Martinez-Fuerte, 428 U.S. 543, 556
(1976). However, “[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.” United States v. Machuca-Barrera, 261 F.3d 425, 433
(5th Cir. 2001). “[A]ny 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.” United States v. Portillo-Aguirre, 311 F.3d 647, 652
(5th Cir. 2002).
Therefore, the “permissible duration of an immigration stop
is the ‘time reasonably necessary to determine the citizenship
status of the persons stopped.’” Id. at 653 (quoting Machuca-
Barrera). This duration is brief – only long enough for the
vehicle’s occupants to “respon[d] to a brief question or two and
possibly [produce] a document evidencing a right to be in the
United States.” Martinez-Fuerte, 428 U.S. at 557-58. While an
officer may ask questions outside of the permissible scope of the
stop, he may do so “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.”
Machuca-Barrera, 261 F.3d at 432. “[I]f an agent does not
develop reasonable suspicion of [drug] activity before the
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justifying purpose of a checkpoint stop has been accomplished, he
may not prolong the stop.” Portillo-Aguirre, 311 F.3d at 657.
Where border patrol agents wish to employ a drug-sniffing
dog at an immigration stop, they may do so only if it does not
lengthen the stop beyond the time necessary to verify the
immigration status of the vehicle’s passengers. Machuca-Barrera,
261 F.3d at 432 n.21. In this case, the dog alerted to the
presence of narcotics before Agent Gutierrez had completed his
questioning of the passengers on the bus. Once the dog alerted,
the agents had, at a minimum, sufficient reasonable suspicion to
permit them to prolong the stop to explore further the potential
source of the dog’s alert. Cf. United States v. Williams, 69
F.3d 27, 28 (5th Cir. 1995) (holding that a canine alert is
sufficient to establish probable cause to search a vehicle for
drugs). Therefore, this stop did not exceed the scope and limits
placed on immigration checkpoint activity in prior Fifth Circuit
cases.
B. “Sniff-and-Contact” as a Fourth Amendment Search
While the sniff alert to the undercarriage of the bus
provided probable cause to search the vehicle, it did not
automatically also provide probable cause to search the
individuals in the vehicle. As the Supreme Court has explained:
Where the standard is probable cause, a search or seizure
of a person must be supported by probable cause
particularized with respect to that person. This
requirement cannot be undercut or avoided by simply
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pointing to the fact that coincidentally there exists
probable cause to search or seize another or to search
the premises where the person may happen to be. The
Fourth and Fourteenth Amendments protect the “legitimate
expectations of privacy” of persons, not places.
Ybarra v. Illinois, 444 U.S. 85, 91 (1979); see also United
States v. Munoz, 957 F.2d 171, 173 (5th Cir. 1992) (“Officers
executing a search warrant of a particular premises may not
search a person found on the premises absent individualized
probable cause.”). As the agents lacked any individualized
probable cause or reasonable suspicion that Garcia was in
possession of drugs prior to the dog’s alerting to his person,
the remaining question in this case is whether, given the
circumstances of the stop, the dog’s sniff-and-contact of Garcia:
(1) constituted a Fourth Amendment search; and (2) if it was a
search, whether it was reasonable under the circumstances.
United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985)
(“The Fourth Amendment commands that searches and seizures be
reasonable. What is reasonable depends upon all the
circumstances surrounding the search or seizure and the nature of
the search or seizure itself.”).
If we assume, without deciding,3 that a dog sniff of an
individual is a search when the dog also makes contact with the
3
Because the district court accepted Garcia’s allegation
that the dog touched him, we are treating this case as a sniff-
and-contact. Therefore, we express no opinion on whether a dog
sniff of an individual without concomitant contact is a Fourth
Amendment search.
8
individual’s body, see Kelly, 302 F.3d at 293 n.1, and Horton v.
Goose Creek Independent School District, 690 F.2d 470, 474 (5th
Cir. 1982), such a search is analogous to a frisk or pat-down of
the type envisioned by the Supreme Court in Terry v. Ohio, 392
U.S. 1 (1968). See Kelly, 302 F.3d at 295; Horton, 690 F.2d at
479. The only remaining question is whether, under the specific
factual circumstances of this case, that search violated Garcia’s
Fourth Amendment rights.
C. The Reasonableness of the “Sniff-and-Contact” at an
Immigration Checkpoint
The reasonableness of a Fourth Amendment search depends on
the circumstances under which the search was conducted.4 Montoya
de Hernandez, 473 U.S. at 537. Here, the sniff-and-contact
occurred at a fixed checkpoint. As stated previously, agents at
a fixed checkpoint may only question the passengers briefly (and
4
The Tenth Circuit has addressed a sniff-and-contact in
the particular circumstance of a roadblock set up to interdict
drugs coming into a prison. In Romo v. Champion, 46 F.3d 1013
(10th Cir. 1995), plaintiffs brought a § 1983 action after police
stopped their car at a roadblock near a prison entrance. At the
roadblock, the police used a dog to sniff the vehicle; the dog
also sniffed both plaintiffs’ bodies (coming into contact with at
least one plaintiff during the sniff). Id. at 1014-15. The
court held that the sniff of the plaintiffs’ bodies was
“reasonable in light of all of the relevant circumstances.” Id.
at 1018. The plaintiffs had a reduced expectation of privacy
because they were visiting the prison, and the court found that a
dog sniff of the “area surrounding one’s body is not terribly
intrusive.” Id. In addressing the sniff-and-contact
specifically, the court stated that, “[t]o the extent that the
dog’s nose physically touched [plaintiff] Misty Gardner, that
contact was purely incidental. Such a brief, unintentional touch
cannot make an otherwise reasonable search unconstitutional.”
Id.
9
request documentation) about their immigration status absent
reasonable suspicion of illegal activity that arises before the
immigration status of the passengers has been verified. While
the dog’s initial alert in the luggage bin did not provide
individualized reasonable suspicion to search Garcia, the dog’s
subsequent alert in the aisle of the bus did provide reasonable
suspicion that Garcia possessed the drugs that the dog sensed.
When the dog then indicated to Garcia by crawling under his seat,
sniffing him more closely and touching its nose to Garcia’s shoes
and lower leg, that sniff-and-contact search was reasonable given
that, as we stated in Horton and reiterated in Kelly, the sniff-
and-contact is the fundamental equivalent of a Terry stop.
The reasonable suspicion created by the dog’s alert is also
sufficient to support Zelmer’s questioning of Garcia about
whether he was in possession of any drugs. Garcia lifted his
shirt to reveal the packages without being frisked, and this new
information surely gave the agents probable cause to remove
Garcia from the bus and search him further. The district court
properly ruled that Garcia’s proposed alternative – removing all
of the passengers from the bus before permitting the dog to
search it – was more unreasonable than what the agents did in
this case. The agents’ actions in this case were reasonable
under the circumstances; there was no Fourth Amendment violation.
III. CONCLUSION
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We AFFIRM the district court’s ruling denying Garcia’s
motion to suppress the evidence seized as a result of the dog
sniff, and we accordingly AFFIRM Garcia’s conviction and
sentence.
11