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