United States v. Chacon

                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                  F I L E D
                         REVISED JUNE 16, 2003                     April 30, 2003

                   UNITED STATES COURT OF APPEALS              Charles R. Fulbruge III
                        FOR THE FIFTH CIRCUIT                          Clerk

                        _______________________

                              No. 01-50858
                        _______________________


                       UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                 versus

                          LEE ARTURO CHACON,

                                                   Defendant-Appellant.

_________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas


_________________________________________________________________



Before GARWOOD, JONES and STEWART, Circuit Judges.

EDITH H. JONES, Circuit Judge:

           After   appellant   Chacon   conditionally   pled    guilty     to

possession with intent to distribute less than 50 kilograms of

marijuana following the denial of his motion to suppress evidence,

he was sentenced inter alia to ten months of imprisonment.                 On

appeal, he challenges the district court’s denial of his motion to

suppress   evidence.       Although     this   case     appears     to     be

distinguishable from the court’s recent decision in United States
v. Portillo-Aguirre, 311 F.3d 647 (5th Cir. 2002), we must remand

for further findings to ascertain, inter alia, whether the Border

Patrol officer had not completed his immigration inspection when,

on his way out of the bus, he stopped and asked Chacon and his

companion some questions.

            At the evidentiary hearing concerning the motion to

suppress, Senior United States Border Patrol Agent Jay Woodruff, a

five-year    veteran      of       the   Border     Patrol,         testified     generally

concerning    the       legendary        Sierra     Blanca,         Texas,     immigration

checkpoint.      The checkpoint is located on IH-10 approximately 87

miles east of El Paso, Texas and only six or seven miles from the

Rio Grande River.          The Sierra Blanca checkpoint is a permanent

steel structure with primary and secondary inspection areas. It is

open 24 hours a day, and each vehicle receives some inspection

unless   there     is    bad       weather    or    unusual         traffic   congestion.

Approximately      three    hundred         arrests     are    made     for   immigration

violations    and   approximately            25    to   30    arrests       are   made   for

narcotics violations at the checkpoint each month.

            More    than       a    dozen    buses      a     day    pass     through    the

checkpoint.      All buses stop in the secondary inspection area so

that agents can check the immigration status of the passengers and

perform an inspection of the bus for narcotics.                          The bus driver

unlocks the lower luggage bin for canine inspection of the luggage.

Agents spend about five minutes, on average, checking the occupants

of a bus at the checkpoint.              Agent Woodruff generally boards a bus,

                                             2
identifies     himself,       and   asks       the    passengers     to    have     their

identification, passports, or visas ready if they are not United

States citizens.       In addition to talking with the passengers while

he   checks    their    citizenship,        he       observes    their    behavior      to

determine whether they are concealing anything and how they feel

about his presence on the bus.                  After checking the passengers’

immigration status, the agents usually check the bathroom for

narcotics.     On the way back to the front of the bus, Agent Woodruff

sometimes will talk to passengers and look into matters which may

have attracted his attention or aroused his suspicion.                              Agent

Woodruff testified that sometimes he makes an incorrect decision

concerning citizenship and, after speaking to the passenger again,

his suspicion is allayed.                  Agent Woodruff also observes the

luggage under the seats as he is walking from the back to the front

of the bus.

              On November 6, 2000, at approximately 10:15 p.m., an

Americanos     bus     that    originated        in    El   Paso    arrived       at   the

checkpoint. When the bus stopped at the secondary inspection area,

Agent Woodruff went aboard, introduced himself, and asked everyone

to   present    personal      identification.            There     were   only     a   few

passengers on the bus.         Julio Carrillo, a juvenile, and Chacon were

sitting together about half way down the aisle.                           Carrillo was

sitting in the aisle seat, and Chacon was sitting in the window

seat. When Agent Woodruff asked them about their citizenship, they

spoke English and responded that they were U.S. citizens.                           Agent

                                           3
Woodruff testified that they did not respond with a simple “yes,”

and it seemed that the question concerning their citizenship was

confusing to them, but “[t]hey both established to me that they

were U.S. citizens.”       Agent Woodruff then inspected the bathroom

for hidden narcotics.

            As he proceeded back down the aisle, Agent Woodruff

testified, he was trying to figure out why the conversation with

Carrillo and Chacon was awkward, and he returned to ask them a few

additional questions to determine whether they were concealing

something or whether he had made a wrong decision concerning their

citizenship.      He further stated, “I figured before I asked for

consent of the bags [sic], I’ll talk to them a little while longer

and   establish    maybe   a   little       more   suspicion.”       On     cross-

examination, Chacon’s lawyer tried to establish that Woodruff had

completed   his   immigration    questioning        and   was   at   this   point

suspicious only of drug trafficking.               Woodruff, however, denied

this implication, stating twice that he was still also wondering if

he had made a wrong decision on immigration.1




      1
            Perhaps his clearest statement of his intent at this point is as
      follows:
            A. When I finished with them, in my mind, I’m going on to the
            next person and in my mind I’m wondering to myself why this
            conversation was awkward. Did I maybe make a wrong decision
            about the immigration status? Did they fool me or what the
            deal is. Okay? As I return, I see the bags and so in my mind
            now, maybe I am right about the immigration, maybe it is
            drugs, I don’t know. So, I make additional inquiries with
            these two subjects.

                                        4
            In   response    to   Agent       Woodruff’s     question,    Carrillo

gestured toward Chacon and stated that they were traveling from El

Paso to Dallas, Texas.       Chacon verified that he was traveling with

Carrillo.    Agent Woodruff then asked if they had any luggage.

Chacon stated that he had some bags containing clothes in the lower

luggage compartment.

            Carrillo stated that he had bags under his seat and under

Chacon’s seat.     Agent Woodruff asked if he could see inside of the

bags, and Carrillo consented and pulled out the bags.                     Carrillo

stated that the bags contained clothes.                Agent Woodruff testified

that the bags felt heavier than bags containing just clothes; when

he moved a shirt, a tape-wrapped bundle fell out of the shirt.

Agent Woodruff asked Chacon what the bundle was, and Chacon just

shrugged.    Making a small incision in the bundle with his knife,

the agent found marijuana.         Carrillo and Chacon were escorted off

of the bus with their bags.         Agent Woodruff discovered about nine

pounds of marijuana in four bundles in Carrillo’s bags.                           He

arrested both Carrillo and Chacon.

            Border Patrol Agent David Guajardo testified Chacon was

interviewed by Border Patrol Agent Mayfield.                Chacon admitted that

he knew the marijuana was in the bags, and that he had made

arrangements     with   a   man   named       Panzas   in   Dallas   to   sell   the

marijuana for $400 a pound.

                                  DISCUSSION



                                          5
          Chacon asserts that the district court erred in denying

his motion to suppress the evidence and the statements he made

following his arrest.       He contends that after Agent Woodruff

initially questioned him and Carrillo concerning their citizenship,

the agent did not have reasonable suspicion to extend Chacon’s

detention with further questioning.           Chacon also argues that the

agent did not have probable cause to arrest him merely because he

was traveling with Carrillo, who had marijuana hidden in his carry-

on luggage.

          When analyzing a ruling on a motion to suppress, this

court reviews questions of law de novo and findings of fact for

clear error.    United States v. Castro, 166 F.3d 728, 731 (5th Cir.

1999) (en banc).     Moreover, this court may uphold the denial of a

motion to suppress if there is any reasonable view of the evidence

to support it.     United States v. Gonzalez, 190 F.3d 668, 671 (5th

Cir. 1999).

          Border Patrol agents stationed at a permanent checkpoint

may stop a vehicle, question its occupants about citizenship, and

conduct   a    visual   inspection       of   the   vehicle   without   any

individualized suspicion that the vehicle or its occupants is

involved in a crime.     United States v. Martinez-Fuerte, 428 U.S.

543, 556-62 (1976); United States v. Hernandez, 976 F.2d 929, 930

(5th Cir. 1992).     Referral of vehicles to a secondary inspection

area is also permissible under the Fourth Amendment, even in the

absence of any individualized suspicion. Martinez-Fuerte, 428 U.S.

                                     6
at 563-64; Hernandez, 976 F.2d at 930.         Border Patrol agents may

also make referrals to secondary inspection to conduct inquiries

about controlled substances.         Hernandez, 976 F.2d at 930 (citing

United States v. Dovali-Avila, 895 F.2d 206, 207 (5th Cir. 1990)).

           A Border Patrol agent may extend an immigration stop to

search for drugs so long as this extension is based upon “consent

or probable cause.”        Martinez-Fuerte, 428 U.S. at 567; United

States v. Machuca-Barrera, 261 F.3d 425, 434 (5th Cir. 2001).

“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.”     Id. at 434.    “The key is the rule that a[n

immigration] stop may not exceed its permissible duration unless

the officer has reasonable suspicion.”        Id.

           After thoughtfully analyzing the governing caselaw from

the Supreme Court and this circuit up to the date of its decision,

and finding this to be an extremely close case, the district court

held that Agent Woodruff “was able to articulate specific facts

that warrant reasonable suspicion that suspicious circumstances




                                      7
were afoot.”2     Thus, the agent was permitted constitutionally to

“continue the seizure” of Chacon and the juvenile long enough to

question them about their luggage and obtain consent to search.

The district    court    also   noted       the   agent’s    testimony      that    he

continues to observe passengers and their luggage for suspicious

activity as he moves through the bus, even after he initially

questions them.     The district court did not rule on probable cause

to arrest Chacon.

           Chacon    principally    argues         that     Agent   Woodruff       had

completed his immigration inquiries by the time he asked Chacon and

Carrillo two follow-up questions while returning from the back to

the front of the bus.     On this basis, Chacon argues that Woodruff’s

additional questions unconstitutionally extended the detention of

the bus on subjects not germane to the checkpoint’s principal

immigration    control   purpose   and       for   which     the    agent   had    no

reasonable suspicion. A panel of this court recently held that “if

an agent does not develop reasonable suspicion of [criminal]

activity before the justifying purpose of a checkpoint stop has

been accomplished, he may not prolong the stop.”                United States v.

Portillo-Aguirre, 311 F.3d at 657.




     2
           These circumstances included the awkwardness and difficulty of his
     initial conversation with the passengers,    the frequency of narcotics
     smuggling on commercial buses, and the presence of several pieces of
     luggage under their seat. The court pointed out that reasonable suspicion
     need not rise to the level of probable cause.

                                        8
            There are similarities between Portillo-Aguirre and this

case – the identical checkpoint, the late evening arrival of

commercial bus passengers, the identity and practices of Agent

Woodruff, the interrogation followed by a consent search that led

to the discovery of the illegal drugs, even the same federal judge.

Moreover, just as in this case, Agent Woodruff was walking from the

rear to the front of the bus when he was provoked to additional

questioning   of   Portillo.   In       Portillo-Aguirre,   denial   of   a

suppression motion was reversed.

            We conclude, however, that Portillo-Aguirre does not

establish an inflexible rule concerning immigration checkpoints

that limits agents to one set of questions. Portillo-Aguirre rests

on this court’s previous discussion in United States v. Machuca-

Barrera, supra, which rejected defendants’ motions to suppress

evidence.   In Machuca-Barrera, the defendants’ marijuana smuggling

was discovered after they were stopped at an immigration checkpoint

and were 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 . . .
     .




                                    9
Id. at 432 (footnotes omitted).3            Although this court set no

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.

Id. at 435.   This court emphasized that it would not scrutinize the

particular questions a border patrol agent asks as long as they

relate generally to determining citizenship status.             Id. at 433.

           Viewed in light of Machuca-Barrera, Portillo-Aguirre

represents a situation in which the agent conceded his immigration

inspection had ended before, on moving from the back to the front

of the bus, he developed reasonable suspicion that Portillo and his

wife might be transporting illegal drugs.           Portillo-Aguirre does

not constrain immigration agents to making an irrevocable decision,

on their first encounter with bus passengers, about the passengers’

immigration status.     Further, because an agent who boards a bus to

investigate    the   passengers     must    necessarily     disembark,     the

reasonable length of the detention ordinarily includes his walking

down the aisle to the front door.          The agent may continue to ask




     3
           This court has also recently held that illegal drug interdiction may
     be carried out at immigration checkpoints, though not as the primary
     purpose of those checkpoints. United States v. Moreno-Vargas, 315 F.3d
     489 (5th Cir. 2002), cert. denied, ___ S.Ct. ___, 2003 WL 1339035 (2003).

                                     10
questions of the passengers during this exit passage so long as he

still has immigration-related motives in mind.

             Here, for instance, the agent’s testimony suggests that

he remain concerned about the initial encounter with Chacon and

Carrillo,     specifically     about    whether       the   awkward    conversation

implied that they were concealing something, whether immigration or

other violations.      Twice he testified that he wondered whether he

might   be    wrong   about    his     earlier    satisfaction        as   to    their

immigration status.      His follow-up questions are not inconsistent

with the desire to allay this uncertainty, even if they had a dual

purpose that could lead to the discovery of contraband.                           (For

instance, whether the travelers were carrying luggage could relate

to their immigration status.)           From the agent’s testimony in this

case, it might be found that the purpose of the immigration stop

had not ended when he posed additional questions to Chacon.

             Moreover, even if the inquiries related to illegal drugs,

Machuca-Barrera holds them permissible so long as they were made

during the reasonable length of an immigration detention.                        Here,

there is no evidence that Agent Woodruff’s follow-up questions

unduly prolonged the detention of the bus.                   Since the agent was

entitled to continue questioning Chacon and Carrillo in order to

resolve his uncertainty about their immigration status, and since

it is “the length of the detention, not the questions asked, that

makes a specific stop unreasonable . . .” Machuca-Barrera, 261 F.3d

at   432,    the   agent’s    questions       could   not    violate    the     Fourth

                                         11
Amendment.    See also United States v. Shabazz, 993 F.2d 431, 436

(5th Cir. 1993) (“we reject any notion that a police officer’s

questioning, even on a subject unrelated to the purpose of the

stop, is itself a Fourth Amendment violation.”)4

           As we have noted, however, the district court made no

explicit finding whether Agent Woodruff had or had not completed

his immigration inquiries of Chacon and Carrillo as he walked from

the rear to the front of the bus (or whether the bus’s immigration

detention was then unduly prolonged).       This lapse is hardly to be

faulted.     Neither Machuca-Barrera nor Portillo-Aguirre had been

decided and put this issue in perspective at the time the court

ruled. Moreover, this issue is antecedent to the question actually

decided by the district court, i.e. whether reasonable suspicion of

criminal activity existed if the immigration purpose of the step

had been completed.      The district court also failed to address

Chacon’s argument that Agent Woodruff lacked probable cause to

arrest him simply because he was traveling with a juvenile who was

carrying marijuana in his baggage.




     4
           Chacon has no standing to question the sufficiency of Carrillo’s
     consent to search Carrillo’s luggage where the marijuana was found.

                                   12
                             CONCLUSION

            For the foregoing reasons, we remand to the district

court to obtain additional findings. The amended opinion will then

be returned to this panel for further consideration.

            REMANDED with INSTRUCTIONS.



ENDRECORD




                                 13
CARL E. STEWART, Circuit Judge, specially concurring:



            I agree with the majority that this case should be

remanded because the district court did not determine: (1) whether

the immigration stop was complete when Agent Woodruff began his

second round of questioning of Chacon and his companion, and (2)

whether there was probable cause to arrest Chacon.              I write

separately because I find the majority’s discussion of the mindset

of the officer and the limitations of this Court’s decision in

Portillo-Aguirre unnecessary to our decision at this time. The

district    court’s   answer   to   the    first   question,   which   it

understandably did not make because Portillo-Aguirre and Machuca-

Barrera had not been decided at that time, is key to resolving this

case.    If the district court finds that the immigration stop was

not complete, then and only then, will it be necessary for this

Court to expound on the motivations behind Agent Woodruff’s actions

and the interpretation of Portillo-Aguirre and other relevant case

law.     Moreover, depending on the district court’s probable cause

determination, the outcome of this case could change dramatically.

            In short, I agree that the case must be remanded in order

for the district court to determine these critical determinations,

but I do not join in the opinion’s advisory discussion of the

limits     of   Portillo-Aguirre,    the   possible    motivations     and

                                    14
ramifications of     Agent Woodruff’s behavior, and its premature

finding   that   Agent   Woodruff’s    questioning   of   Chacon   and   his

companion could not violate the Fourth Amendment.




                                      15