United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 20, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-50603
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID ALLEN LONG,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. EP-01-CR-1997-ALL-F
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Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
David Allen Long appeals his conviction and the sentence he
received for possession with intent to distribute marijuana after
the district court denied his motion to suppress evidence. The
marijuana was seized after Long was stopped at an immigration
checkpoint. This court reviews the district court's factual
findings regarding a motion to suppress for clear error and its
legal conclusions de novo. United States v. Portillo-Aguirre,
*
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that this opinion should not be published and is not precedent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. 02-50603
-2-
311 F.3d 647, 651-52 (5th Cir. 2002). When the facts are
undisputed, as they are in the instant case, questions such as
probable cause and reasonable suspicion are resolved as questions
of law. Id. at 652.
The gist of Long’s argument is that once the agent
ascertained Long’s citizenship he could ask no further questions
and could not refer him to the secondary inspection area. The
initial stop was constitutional. United States v.
Martinez-Fuerte, 428 U.S. 543, 562 (1976). In United States v.
Machuca-Barrera, 261 F.3d 425, 432 (5th Cir. 2001), this court
held that once the purpose justifying the stop has been served,
the detained person must be free to leave.
Long likens his case to Portillo-Aguirre, where this court
held that a Border Patrol agent unlawfully extended an
immigration checkpoint stop of a commercial passenger bus. 311
F.3d at 656. However, the agent in that case lacked reasonable
suspicion of criminal activity before further detaining the
defendant. Id. at 656-58. Long ignores that the Border Patrol
agent in this case had reasonable suspicion of criminal activity
before he ascertained Long’s citizenship when he observed Long to
be nervous and observed the unusual circumstance that the air
conditioner was blowing hot air in a distracting manner. See
Machuca-Barrera, 261 F.3d at 434 (an agent at an immigration stop
may investigate non-immigration matters beyond the permissible
length of the immigration stop if the initial, lawful stop
No. 02-50603
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creates reasonable suspicion warranting further investigation).
Given that the Border Patrol agent had reasonable suspicion to
further question Long and that the additional questions gave rise
to more reasonable suspicion, there was no Fourth Amendment
violation.
AFFIRMED.