Case: 17-40525 Document: 00514656314 Page: 1 Date Filed: 09/25/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-40525 FILED
September 25, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
JESUS ALVAREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:16-CR-538-1
Before GRAVES and COSTA, Circuit Judges, and BENNETT, District Judge.*
PER CURIAM: **
Customs and Border Patrol agents at an immigration checkpoint
discovered methamphetamine carried by defendant Jesus Alvarez. The district
court denied Alvarez’s motion to suppress, and he was convicted of possession
of methamphetamine with intent to distribute. This appeal followed. We
AFFIRM.
* District Judge for the Southern District of Texas, sitting by designation.
**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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 17-40525
I.
On May 26, 2016, a passenger bus arrived at the Sarita immigration
checkpoint in south Texas. Customs and Border Protection agents Brian
Carter (“Agent Carter”) and Joel Carrillo (“Agent Carrillo”) boarded the bus,
announced they were performing an immigration inspection, and requested
that the passengers get their documents ready. Jesus Alvarez (“Alvarez”) and
his brother Jaime Alvarez (“Jaime”) were passengers on the bus.
Agent Carter initially began the immigration inspection with Jaime who
was seated in the back of the bus on the aisle seat next to Alvarez. Agent Carter
asked Jaime if he was a United States citizen. Jaime replied that he was and
presented a United States passport card. The passport card was in a
deteriorated condition—lamination was coming off and the photo was
unrecognizable. Agent Carter then asked Jaime for additional documents.
Jaime provided a birth certificate and a Social Security card. While Jaime was
presenting the additional documents, Agent Carter asked Jaime questions
about his travel, specifically where he was going and where he lived. Jaime
replied that he lived in Brownsville, Texas, and was traveling to Houston to
visit his aunt.
Agent Carter also requested to see Jaime’s bus tickets. Though Agent
Carter asked Jaime for the tickets, it was Alvarez who retrieved the tickets
from a bag on the floor and presented them to Agent Carter. While Alvarez was
producing the bus tickets, Agent Carter inquired whether they had any
luggage. Jaime responded that they did not have any luggage and that their
“aunt was going to buy them clothes when they got to Houston.” Alvarez stated
the same.
When Agent Cater inspected the additional documents presented by
Jaime, he noticed that the Social Security card was deteriorated and unsigned.
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The unsigned Social Security card combined with the condition of the passport
card raised Agent Carter’s suspicion concerning the authenticity of the
documents. Agent Carter then asked Jaime if he had a driver’s license or some
form of picture identification. Jaime responded that he did not have any other
form of identification. Agent Carter further asked Jaime his age, to which
Jaime responded he was sixteen.
Agent Carter noticed that Alvarez became increasingly nervous during
his brother’s inspection. Agent Carter turned his investigation to Alvarez and
asked if he was a United States citizen, to which Alvarez answered yes and
produced a birth certificate, Social Security card, and a Mexican school
identification. Agent Carter inquired where Alvarez lived, to which he
answered Matamoros, Mexico. Agent Carter then asked Jaime and Alvarez
where they were traveling from, and they stated Mexico. Agent Carter followed
up by asking where the brothers had crossed the border. Alvarez and Jaime
were unable to identify the name of the international bridge they had crossed
at.
It was at this point that Agent Carter asked for permission to search
Jaime and Alvarez, and they gave the agent permission to do so. Agent Carter
estimated in total the immigration investigation of the brothers lasted about
one minute and thirty seconds. After both brothers gave Agent Carter consent
to search, they were escorted off the bus. Two other Border Agents conducted
the search while Agent Carter continued immigration inspections of other bus
passengers. Immediately upon patting down Alvarez, the Border Agents
discovered packages of methamphetamine taped to his legs.
After being charged with possession with intent to distribute more than
500 grams of methamphetamine, Alvarez moved to suppress the drugs
claiming Agent Carter extended the immigration stop beyond its permissible
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limit and that the consent Alvarez gave Agent Carter to search did not
dissipate the taint of the unconstitutionally extended stop. The district court
held an evidentiary hearing at which both Agent Carter and Alvarez testified
to the events leading to the search. The district court orally denied the motion
to suppress. Alvarez was subsequently found guilty after a bench trial and
sentenced to 63 months imprisonment.
Alvarez raises two issues on appeal. Alvarez’s primary argument is that
Agent Carter’s questioning exceeded the permissible scope of an immigration
checkpoint stop because Agent Carter extended the detention beyond the
limited citizenship inquiry and lacked reasonable suspicion. Additionally,
Alvarez argues that even though he consented to a search, suppression is
required because his consent was not sufficiently attenuated from the
unconstitutional extension of the immigration inspection.
II.
“When examining a district court’s ruling on a motion to suppress, we
review questions of law de novo and factual findings for clear error.” United
States v. Wise, 877 F.3d 209, 215 (5th Cir. 2017) (quoting United States v.
Hearn, 563 F.3d 95, 101 (5th Cir. 2009)). Specifically, we review de novo the
“ultimate conclusion about the constitutionality of the law enforcement
conduct.” United States v. Danhach, 815 F.3d 228, 233 (5th Cir. 2016) (quoting
United States v. Roberts, 612 F.3d 306, 309 (5th Cir. 2010)). “We view the
evidence introduced at a suppression hearing in the light most favorable to the
prevailing party, here, the Government.” United States v. Perales, 886 F.3d
542, 545 (5th Cir. 2018).
III.
Border Agents may conduct “suspicionless seizures of motorists” for
immigration checks at fixed Border Patrol checkpoints. Indianapolis v.
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Edmond, 531 U.S. 32, 37 (2000) (citing United States v. Martinez-Fuerte, 428
U.S. 543 (1976)). The permissible duration of the detention is limited to the
time reasonably necessary to complete a brief investigation of matters within
the scope of the stop. United States v. Machuca-Barrera, 261 F.3d 425, 433 (5th
Cir. 2001). “The permissible duration of an immigration stop is therefore the
time reasonably necessary to determine the citizenship status of the persons
stopped.” Id. This includes “the time necessary to ascertain the number and
identity of the occupants of the vehicle, inquire about citizenship status,
request identification or other proof of citizenship, and request consent to
extend the detention.” Id.
Alvarez argues that Agent Carter unlawfully prolonged the immigration
investigation when his questions ventured to topics not related to discerning
citizenship status. However, the Fourth Amendment protects against
“unreasonable seizures, not unreasonable questions.” Machuca-Barrera, 261
F.3d at 432. Certainly, if a Border Patrol agent is presented with documents
that are questionable or insufficient to verify citizenship, the agent can ask for
more documents and pose other questions useful to determine the truth of
citizenship status. Also, questions about travel including origin and
destination would be commonplace for an agent to ask during an immigration
inspection. “We will not scrutinize the particular questions a Border Patrol
agent chooses to ask as long as in sum they generally relate to determining
citizenship status.” Id. at 434.
We find that Agent Carter’s questions concerning Alvarez’s citizenship,
residence, luggage, and travel plans were all generally related to his mission
of determining Alvarez’s citizenship status. Furthermore, Agent Carter’s
questions were posed while requesting and inspecting immigration related
documents. There is no indication that these inquiries measurably extended
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the duration of the immigration stop, therefore, we hold that Agent Carter’s
immigration check did not violate the Fourth Amendment. Accordingly, the
district court properly denied Alvarez’s motion to suppress.
IV.
Because we find that Agent Carter did not impermissibly extend
Alvarez’s detention during the immigration inspection, we need not address
Alvarez’s second argument concerning whether his consent was sufficiently
attenuated from a Constitutional violation.
V.
The decision of the district court is hereby AFFIRMED.
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