United States Court of Appeals
Fifth Circuit
F I L E D
December 15, 2006
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 04-41700
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
VERONICA JAIME,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
Before KING, GARWOOD and JOLLY, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellee Veronica Jaime (Jaime) is charged in a two
count indictment with having, on or about October 1, 2003,
possessed less than fifty kilograms of marihuana with intent to
distribute it and having conspired to do so, contrary to 21 U.S.C.
§ 841(a)(1), 841(b)(1)(D) and 846. The United States appeals the
district court’s pre-trial order granting Jaime’s motion to
suppress evidence obtained in a search of Jaime’s suitcase while
she was a passenger on a bus stopped at a fixed immigration
checkpoint. We vacate and remand.
Facts and Proceedings Below
On October 1, 2003, Jaime was a passenger on a Greyhound bus
traveling north when it was stopped at the permanent immigration
inspection station fifteen miles north of Laredo, Texas, on
Interstate 35. Border Patrol Agent Corey Grubbs boarded the bus at
its front to perform an immigration inspection of all the
passengers. He was the only agent on the bus. Agent Grubbs
proceeded to move down the aisle of the bus, asking each passenger
(other than those who were “handing me immigration documents”) in
turn to state his or her citizenship and travel plans. Jaime was
seated in an aisle seat slightly in front of the middle of the bus.
The window seat next to her was unoccupied. There were some
passengers in front of her and some behind her. When Agent Grubbs
reached Jaime, he asked her to state her citizenship. Jaime
replied that she was a United States citizen. Agent Grubbs then
asked Jaime about her travel plans and she responded accordingly.
The interview was conducted entirely in English.
Agent Grubbs then asked Jaime whether a suitcase on the floor
in front of the window seat next to her belonged to her.1 He
1
Jaime and Agent Grubbs, the only witnesses to testify at the suppression
hearing, disagreed as to the sequence of these events. At the hearing, Jaime
contended that Agent Grubbs moved on to the next passenger after asking her the
two initial, immigration-related questions. According to Jaime, it was only after
2
testified that he found the bag’s presence odd, and “believed there
might be narcotics in it,” because, in his experience, most people
placed baggage of that size in the checked luggage compartment of
the bus.2 Jaime confirmed the bag was hers and Agent Grubbs then
asked whether he could look inside it.3 Jaime consented, and
opened the front pocket of the bag, revealing only clothing. Agent
Grubbs then asked Jaime to open the back pocket of the bag. She
did so and, upon Jaime opening the back pocket, Agent Grubbs
immediately recognized what appeared to be a bundle of marihuana.4
Agent Grubbs removed Jaime and her bag from the bus, and then
Agent Grubbs completed questioning of all the passengers and checked the bathroom
at the rear of the bus that he returned to her and asked for consent to search
her bag. However, the district court explicitly found Agent Grubbs’s account to
be more credible, stating in its suppression memorandum and order:
“There was some dispute about the sequence of these events. At the
suppression hearing, Defendant contended that Agent Grubbs moved on
to the next passenger after asking her the initial two questions.
According to her testimony, it was only after Agent Grubbs completed
questioning all of the passengers and checked the bathroom that he
returned and asked for consent to search her bag. The Court did not
find this account to be as credible as Agent Grubbs’ testimony.
According to Agent Grubbs, he stopped at Defendant’s seat,
questioned her, and removed her from the bus, all before he had
completed his immigration inspection of the remaining passengers.”
2
Agent Grubbs also testified that as he “was walking down the aisle” he
“noticed” that Jaime “would look at me and then look the other way . . . every
time my eyes would meet her she would look the other way,” and this “caught” his
“attention.”
3
Jaime claims that Agent Grubbs did not ask for her consent to search the
bag, but instead simply asked her to open the bag. Agent Grubbs contends he
“asked Ms. Jaime if she minded if he looked inside the suitcase.” The district
court did not expressly resolve this difference but did recite Agent Grubbs’s
version several times in its order.
4
Agents subsequently found approximately 11 pounds of marihuana in the bag.
3
reboarded the bus to complete his immigration inspection of the
remaining passengers.
Agent Grubbs testified that his questions to Jaime were “asked
one right after the other” and that from the time he “asked her if
she was a U.S. citizen” to the time when he “actually got consent
to look in the bag”, the total amount of time that “had elapsed”
was “maybe ten seconds.” Agent Grubbs also stated that by the time
he escorted Jaime off the bus, no more than a minute had been spent
with Jaime. Agent Grubbs admitted that he was satisfied that Jaime
was a United States citizen within the first ten seconds, after the
initial two questions, and that asking for consent to search the
bag did not “have anything to do with immigration status” but
“didn’t extend what is customary” for him “to interview somebody
for immigration purposes.” He also testified that he was not
acting in an intimidating or coercive manner when he asked for
consent to search Jaime’s bag and that “she was not in custody”
then. He stated that Jaime seemed cooperative and did not hesitate
to open her bag.5
The district court concluded that the evidence should be
suppressed under the most recent circuit precedent, although the
court noted its belief that the state of the law was
“unsatisfactory” on this issue and that “Ms. Jaime is getting an
5
Agent Grubbs was in uniform. Jaime did not know whether he was armed and
there is no evidence that he was.
4
absolutely undeserved windfall on this.” The court then issued a
written “memorandum and order” granting Jaime’s motion to suppress.
The court there ruled that with respect to Jaime the valid
immigration fixed checkpoint suspicionless detention terminated as
soon as Agent Grubbs was satisfied of her citizenship, which was
immediately after she stated her travel plans, and accordingly any
further detention was unconstitutional.6 Referring to our
decisions in United States v. Portillo-Aguirre, 311 F.3d 647 (5th
Cir. 2002), United States v. Chacon, 330 F.3d 323 (5th Cir. 2003),
and United States v. Machuca-Barrera, 261 F.3d 425 (5th Cir. 2001),
the court concluded that “the Portillo-Aguirre/Chacon ‘subjective
motivation’ test – and not the former Machuca-Barrera ‘duration’
test – is the standard for evaluating the propriety of a seizure at
an immigration checkpoint,” and that “absent reasonable suspicion,
an agent may not continue to question an individual stopped at an
immigration checkpoint after becoming satisfied as to that
6
The court stated that it “does not find that Agent Grubbs had a reasonable
suspicion that Defendant was engaged in wrongdoing” and accordingly determined
that the detention could not be validly extended on such a basis. The government
in its appeal does not challenge that ruling of the district court, and we
accordingly accept it for present purposes. See United States v. Bigler, 817
F.2d 1139, 1140 (5th Cir. 1987).
The district court also rejected the government’s contention made below
that the validity of the detention was to be determined on a bus-wide, not on an
individual passenger, basis. At oral argument the government agreed, as did
appellee Jaime, that the individual passenger approach is appropriate, and
accordingly we here proceed on that basis. But see, e.g., United States v.
Garcia-Garcia, 319 F.3d 726, 730 (5th Cir. 2003); United States v. Ventura, 447
F.3d 375, 381-82 (5th Cir. 2006). Nor does the government argue that the good
faith exception to the exclusionary rule, United States v. DeLeon-Reyna, 930 F.3d
396, 400-01 (5th Cir. 1991) (en banc), is applicable. We accordingly likewise
do not address that matter.
5
individual’s immigration status.” The court held that “the
immigration purpose of the stop was complete” at the “moment” Agent
Grubbs was satisfied as to Jaime’s immigration status, and, there
being no reasonable suspicion, from that instant on Jaime was under
“illegal detention.” The court held that the search was not
validated by Jaime’s consent because it was requested and given
after – albeit virtually immediately after – Agent Grubbs became
satisfied as to Jaime’s immigration status, and “no circumstances
intervened between the detention and the consent,” and
“[t]herefore, no matter how voluntarily Defendant gave her consent,
the search was impermissible.”
Discussion
A. Standard of Review
Reviewing a district court’s ruling on a motion to suppress,
this court accepts the district court’s factual findings “unless
clearly erroneous or influenced by an incorrect view of the law.”
United States v. Alvarez, 6 F.3d 287, 289 (5th Cir. 1993). The
district court’s conclusions of law are reviewed de novo. Id. To
the extent the underlying facts are undisputed we may resolve
questions such as probable cause and reasonable suspicion as
questions of law. United States v. Ibarra-Sanchez, 199 F.3d 753,
758 (5th Cir. 1999).
B. Detention
6
At a fixed checkpoint having the primary purpose of
identifying illegal immigrants, vehicles may be briefly detained in
furtherance of that purpose and their occupants questioned, all
without either a warrant or any individualized reasonable
suspicion, but “checkpoint searches are constitutional only if
justified by consent or probable cause to search” and “[a]ny
further detention . . . must be based on consent or probable
cause.” United States v. Martinez-Fuerte, 96 S.Ct. 3074, 3087
(1976) (internal quotation marks and citations omitted).7
In City of Indianapolis v. Edmond, 121 S.Ct. 447 (2000), the
Supreme Court held invalid a highway checkpoint program concededly
having “the primary purpose of interdicting illegal narcotics,” id.
at 453, stating “we decline to approve a program whose primary
purpose is ultimately indistinguishable from the general interest
in crime control.” Id. at 455.8 At such checkpoints, “stops can
7
Over ten years after Martinez-Fuerte, our en banc court in United States
v. Jackson, 825 F.2d 853 (5th Cir. 1987), in reviewing that and related Supreme
Court decisions, noted that the legal limitations imposed by those cases on
detentions at fixed immigration checkpoints were not unduly restrictive because
even as so limited those stops afforded agents the “opportunity to” (inter alia)
“obtain consent to support a search.” Id. at 862.
8
Edmond asserts that the dissenting opinion there “erroneously
characterizes” the majority as holding that the “‘use of a drug-sniffing dog .
. . annuls what is otherwise plainly constitutional;’” that characterization is
said to be erroneous because “the constitutional defect of the program is that
its primary purpose is to advance the general interest in crime control.” Id.
at 456 n.1.
We have held that a fixed checkpoint having as its primary purpose the
identification of illegal immigrants is not rendered invalid under Edmond by
having as a secondary purpose narcotics interdiction (as reflected by having
permanently available there dogs cross-trained to detect drugs as well as
humans). United States v. Moreno-Vargas, 315 F.3d 489 (5th Cir. 2002) (noting
7
only be justified by some quantum of individualized suspicion.”
Id. at 457. Edmond goes on to state that its holding “does not
impair the ability” of officers to act on “information they
properly learn during a checkpoint stop justified by a lawful
primary purpose,” even though that results in “arrest . . . for an
offense unrelated to that purpose.” Id. Immediately thereafter,
Edmond explains “that the purpose inquiry in this context is to be
conducted only at the programmatic level and is not an invitation
to probe the minds of individual officers acting at the scene. Cf.
Whren [v. United States, 116 S.Ct. 1769 (1996)], supra.” (emphasis
added).9
As noted, the district court ruled that Jaime’s consent to the
search of her bag was invalid, “no matter how voluntarily [she]
gave her consent,” because it was given while she was under illegal
detention and “no circumstances intervened between the detention
there was no evidence the checkpoint would not be maintained without the
secondary purpose). See also, e.g., United States v. Davis, 270 F.3d 977, 979
(D.C. Cir. 2001).
9
As Edmond had earlier observed, Whren held that “an individual officer’s
subjective intentions are irrelevant to the Fourth Amendment validity of a
traffic stop that is justified objectively” and that the same is true of “the
actual motivations of the individual officers involved.” Edmond at 456. As more
recently reflected in Brigham v. City of Stuart, 126 S.Ct. 1943, 1948 (2006),
Whren is but one of many Supreme Court holdings that “[a]n action is ‘reasonable’
under the Fourth Amendment, regardless of the individual officer’s state of mind,
‘as long as the circumstances, viewed objectively, justify the action’ . . .
[t]he officer’s subjective motivation is irrelevant,’” and Edmond “has nothing
to do with discerning what is in the mind of the individual officer conducting
the search.” See also Ohio v. Robinette, 117 S.Ct. 417, 420 (1996) (“the
subjective intentions of the officer did not make the continued detention of
respondent illegal,” citing Whren).
8
and consent.” The central issue on this appeal is the correctness
of the district court’s legal conclusion that Jaime was then under
illegal detention because virtually immediately before Agent Grubbs
asked for, and Jaime gave, her consent, he had (as reflected only
by his admission at the suppression hearing) subjectively satisfied
himself (on the basis of her answers to his initial two questions)
as to her citizenship. The district court reached this conclusion
notwithstanding that Agent Grubbs’s credited testimony reflects
that no more than approximately ten seconds elapsed between his
initial encounter with Jaime and his asking and receiving the
consent to search, and that the total elapsed time from his initial
question of Jaime to her giving of consent to search her bag was
not greater than what was customary to interview somebody for
immigration purposes.
In its resolution of this legal issue the district court, and
the parties below and on this appeal, focused mainly on our
decisions in Machuca-Barrera, Chacon and Portillo-Aguirre. The
district court concluded that the latter two cases essentially
supplanted Machuca-Barrera and controlled outcome here. We
disagree, and accordingly vacate the district court’s order and
remand.
In Machuca-Barrera, we addressed the validity of a
suspicionless consent based search at a fixed immigration
checkpoint in light of Martinez-Fuerte and Edmond. The evidence
9
there showed that late on a Sunday afternoon the 19-year-old
defendant Machuca-Barrera, accompanied by a 15-year-old-male
companion, drove his car to the checkpoint, where Border Patrol
Agent Holt:
“. . . questioned the pair about their travel plans and
citizenship. [They] replied that they were U.S. citizens
living in Pecos, Texas, and that they were returning from
a weekend trip to Ojinaga, Mexico.
At this point, Agent Holt asked them whether they
were carrying any firearms or drugs. Machuca-Barrera
replied no. Agent Holt requested consent to search the
car, which Machuca-Barrera gave.” Id., 261 F.3d at 429-
30. (emphasis added; footnote omitted).
The district court, although crediting the defendant’s version of
the events, overruled a motion to suppress the fruits of the search
which found marihuana hidden in a speaker box. Id. We affirmed.
We held that “because the brief stop . . . lasted no longer
than necessary to fulfill its immigration-related purpose, the stop
did not violate the Fourth Amendment.” Id. at 429. For this
purpose, we considered only the time “up to the point at which
Machuca-Barrera consented to a search of his car”10 because “[a]fter
Machuca-Barrera consented to a search, Agent Holt needed no
10
We noted that throughout that period there was no reasonable suspicion
respecting Machuca-Barrera (or his car or his companion). Id. at 435 ns.31 and
32.
10
justification to prolong the encounter.” Id. at 435.11 Our holding
in this respect rested on two legal principles.
First, that so long as the primary programmatic purpose of the
checkpoint was the detection of illegal immigrants, the permissible
duration of a suspicionless detention there would be determined by
objective factors, not by the subjective motivation or state of
mind of the specific individual officers conducting the stop and
related examination or questioning on the particular occasion at
issue. Thus we stated that “[i]t is the length of the detention,
not the questions asked, that makes a specific stop unreasonable,”
id. at 432, and that:
“We decline a protocol that measures the pertinence of
questions to the immigration purpose by an after-the-fact
standard for admissibility at trial. . . . policing the
duration of the stop is the most practical enforcing
discipline of purpose. The key is the rule that a stop
may not exceed its permissible duration . . . We deploy
a test that is both workable and which reinforces our
resistance to parsing the relevance of particular
questions. To scrutinize too closely a set of questions
asked by a Border Patrol agent . . . would court inquiry
into the subjective purpose of the officer asking the
questions.[26]
26. We do not inquire into the motives of individual
Border Patrol agents in performing stops. See Whren v.
United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135
L.Ed.2d 89 (1996). . . .” Id. at 432.
11
In this connection we observed that “[b]ecause we find no Fourth
Amendment violation, we need not address Machuca-Barrera’s claim that his consent
was invalidated by a constitutional violation.” Id., n.33.
11
See also id. at 433 (“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”).
The second principle thus relied on in Machuca-Barrera is that
the permissible duration of a suspicionless stop at a fixed
immigration checkpoint includes the time necessary to “request
consent to extend the detention.” Id. at 433. Thus, we held:
“The 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. The permissible duration of an
immigration checkpoint stop is therefore the time
reasonably necessary to determine the citizenship status
of the persons stopped. This would include 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. (emphasis added; footnotes omitted).
On the basis of the foregoing two principles, we held that
Machuca-Barrera’s suspicionless detention at the checkpoint was
legal because its duration, up to the time he gave his consent to
search, was objectively reasonable, and thereafter the duration of
his detention could be lawfully extended without any other
justification. We stated:
“. . . the permissible duration of the stop was the
amount of time reasonably necessary for Agent Holt to ask
a few questions about immigration status. Agent Holt’s
few questions took no more than a couple of minutes; this
is within the permissible duration of an immigration
checkpoint stop. Although Machuca-Barrera notes that
Agent Holt asked a question about drugs, we will not
12
second-guess Agent Holt’s judgment in asking that
question. The brief stop by Agent Holt, which determined
the citizenship status of the travelers and lasted no
more than a couple of minutes before Agent Holt requested
and received consent to search, was constitutional.” Id.
at 435.
It is clear that Machuca-Barrera dictates the result here.
There, the time elapsed between the agents’ initial contact with
the defendant until he consented to the request to search his
vehicle was “no more than a couple of minutes;” here the comparable
time was clearly less than half a minute. During that period of
time three things occurred in Machuca-Barrera. First, citizenship
and travel plan questions were asked and answered, the answers
reflecting United States citizenship, and that is likewise the case
here. Second, in Machuca-Barrera, the agents asked questions about
carrying drugs and guns, which were answered in the negative, and
we declined to “second-guess” the asking of that question or to
engage in “inquiry into the subjective purpose of the officer
asking the questions.” The next thing that occurred in Machuca-
Barrera was that consent to search the car was asked for and given,
and we expressly and specifically held that the permissible
duration of a suspicionless fixed checkpoint immigration stop
included the time reasonably necessary to request consent to extend
the detention (and, by necessary implication, to receive the reply
to the request) by consenting to search of the vehicle. Here, what
immediately followed the citizenship and travel plan questions and
13
answers, was Jaime being asked if the bag was hers, and on her
promptly responding that it was, whether she would consent to its
search and her affirmative reply. Clearly the question whether the
bag was hers was a part of, and a necessary predicate to, asking
her consent to search it, and hence should be treated in the same
way as the request for and receipt of consent to search was in
Machuca-Barrera. But, even wholly apart from that, there is no
conceivable justification for holding that the bag ownership
question and answer impermissibly extended the duration of the stop
here, while the carrying drugs or weapons question and answer in
Machuca-Barrera did not.
Jaime argues that Machuca-Barrera is distinguishable because
there the consent to search was given before the agents had
satisfied themselves that the car’s occupants were citizens. We
reject that argument. In the first place, no statement in Machuca-
Barrera, nor anything in its factual recitation, supports that
assertion. The opinion’s factual recitation reflects that the
first questions concerned citizenship and travel plans and the
answers reflected that both individuals were U.S. citizens. The
next questions related to drugs or guns being carried, and were
answered negatively, followed only by asking for and receiving
consent to search. Nothing else is related. Nothing suggests that
the opinion does not completely state all the relevant facts up to
14
that point, and it specifically states that what follows that is
irrelevant, as noted above. In the second place, Machuca-Barrera
clearly holds both that test is “the length of the detention” and
that “the time necessary to . . . request consent to extend the
detention” (by requesting and receiving consent to search) is
included in the “permissible duration of the stop.” Therefore,
under Machuca-Barrera it is necessarily irrelevant whether a non-
immigration question comes before, rather than immediately
following, the completion of the immigration questions and answers,
for in either event the duration of the stop is equally extended,
and, if the non-immigration question and answer are asking and
giving consent to search, in either event the extension of the
stop’s duration is permissible.
Machuca-Barrera compels the conclusion that the duration of
Jaime’s detention from the first question Agent Grubbs asked her to
the time she gave her consent to search her bag, a period of less
than half a minute, was not excessive and that her detention during
all that time was legally valid, no matter what Agent Grubbs
subjectively concluded respecting her citizenship following her
answers to his initial questions of her.
No subsequent decision of the Supreme Court or of this court
en banc is inconsistent with Machuca-Barrera or the principles it
announces, and consequently the later panel decisions in Portillo-
15
Aguirre and Chacon cannot require a different result here than that
mandated by Machuca-Barrera. See, e.g., Rios v. City of Del Rio,
Texas, 444 F.3d 417, 425 n.8 (5th Cir. 2006). We note, however,
that in any event Portillo-Aguirre and Chacon involve a possibly
significantly different factual scenario than that presented here.
In Portillo-Aguirre, we addressed a bus stopped at the Sierra
Blanca fixed immigration checkpoint in September 2000. Agent
Woodruff alone inspected the passengers’ compartment starting at
the front of the bus, following his standard modus operandi
verifying each passenger’s citizenship status as he made his way
down the aisle to the back of the bus. The defendants, Mr. and
Mrs. Portillo-Aguirre, were sitting respectively in the driver’s
side window seats in the fourth and third rows from the front of
the bus. 311 F.3d at 650. The agent testified he was satisfied
their “presence in the United States was lawful” and continued his
inspection to the back of the bus where he also checked the
bathroom for illegal aliens or narcotics. “After . . . [the agent]
completed his immigration inspection, and while he was returning to
the front of the bus to exit, he noticed a small carry-on bag
underneath Portillo-Aguirre’s seat” which he had not seen before,
and this aroused his suspicion and he asked Portillo-Aguirre if he
had a bag on the bus. Aguirre pointed to a backpack in the
16
overhead bin, the agent asked if the bag under the seat was his,
and, on an affirmative response, next asked what it contained, to
which the response was books and clothes. The agent then asked for
and received consent to search the bag. Id. at 650-51.
Subsequently, consent was also requested and received to search
Mrs. Portillo-Aguirre’s similarly designed but different colored
carry-on bag. Id. The agent “testified that he had determined the
citizenship status of the bus passengers before he began to
question Portillo-Aguirre about the bag underneath his seat.” Id.
at 653. The opinion further states that on the occasion in
question the agent followed his usual “modus operandi for bus
inspections,” which was to first “verify the passengers’
citizenship status and then begin looking for signs of narcotics
trafficking.” The panel stated that this “general method” does not
pass “constitutional muster” because it “is essentially an attempt
to circumvent the Court’s holding in Edmond by broadening the scope
of an otherwise lawful immigration seizure to include drug
interdiction activity.” Id. at 655. The panel noted “immigration
inspection of a passenger bus normally lasts three to five minutes”
but that “[a]fter determining the passengers’ citizenship status”
the agent “extended the stop for an additional three to five
minutes” to investigate whether Portillo-Aguirre was carrying
drugs. Id. at 656. This led the panel to distinguish Machuca-
17
Barrera on the ground that “unlike in Machuca-Barrera, where the
Border Patrol agent inquired about drugs during the course of the
immigration inspection, Agent Woodruff had completed his inspection
before he turned his attention to drug interdiction.” Id.
Such reasoning likewise distinguishes the present case from
Portillo-Aguirre because here Agent Grubbs, when he asked Jaime
whether the bag was hers and if she would consent to its search,
had not completed his immigration inspection of the bus (and indeed
had not even reached the back half of the bus).12 Further, it may
arguably be that Portillo-Aguirre does not contravene the
prohibition of probing “the minds of individual officers acting at
the scene” which Edmond recognizes as distinct from the permissible
determination of the primary programmatic purpose of the
establishment and maintenance of the checkpoint. See note 9 supra
and accompanying text.13 This is perhaps so because the duration
of the agent’s inspection (unextended by any consent or reasonable
suspicion) took approximately twice as long as the normal
12
We also note that Portillo-Aguirre’s quoted statement suggesting that the
drug questions in Machuca-Barrera were asked while the agents were still trying
to satisfy themselves as to citizenship is wholly unsupported, as the only
citizenship and travel plan questions had already been asked and answered.
Moreover, in Machuca-Barrera the drug questions did not produce a different
result because the court based its decision on the reasonable length of the
detention objectively determined, not on the questions asked (or the agent’s
subjective motives in asking them).
13
We note, however, that Portillo-Aguirre does not address or even cite
this portion of Edmond, or the comparable passages of Machuca-Barrera. That is
also true of Chacon and of United States v. Ellis, 330 F.3d 677 (5th Cir. 2003),
each discussed infra.
18
immigration-only inspection and also because the agent’s general
modus operandi, followed in that instance, was to go from the front
of the bus to the back and in that process question each and every
passenger on the bus as to his or her citizenship and authority to
be in the United States, examining the bathroom at the rear, and
then proceed from the back to the front to exit the bus without
further questioning any passengers as to their citizenship or right
to be in the United States. In any event, such facts are plainly
distinguishable from those here, where the time from the first
question of Jaime to her giving consent to search was less than
thirty seconds and did not exceed the normal, objectively
reasonable time to question a passenger as to immigration status.
We also note that nothing in Portillo-Aguirre is inconsistent with
(or, indeed, even cites) Machuca-Barrera’s holding that the
permissible duration of a suspicionless detention at a fixed
immigration checkpoint includes the time reasonably necessary to
request consent (and receive response thereto) to extend the
detention (in that case and this by consenting to a search).14
Chacon, decided after Portillo-Aguirre, involved the same
border patrol agent inspecting a bus at the same checkpoint about
six weeks after the stop at issue in Portillo-Aguirre. In Chacon,
the defendant and his companion “were sitting together about half
14
This is also true of Chacon, discussed infra.
19
way down the aisle.” 330 F.3d at 325. The agent followed his
routine of proceeding from the front of the bus to the rear
examining all the passengers as to their citizenship and authority
to be in the United States, and then examining the bathroom at the
rear of the bus. The agent testified he was satisfied the
defendant and his companion were United States citizens. However,
as the agent started back to the front of the bus he recalled that
the two had seemed “awkward” in their responses, and determined
that he would ask them some more questions, arguably mentioning
both immigration and drug related concerns. Id. When on his way
back up the aisle the agent again reached the defendant and his
companion he asked them where they were going and if they had any
luggage, and subsequently requested and received consent to search
one of their bags, which was found to contain marihuana. The
district court in ruling on the motion to suppress failed to
expressly make certain findings, and we remanded for that purpose,
including findings on whether the agent had “completed his
immigration inquiries of” the defendant and his companion “as he
walked from the rear to the front of the bus” and “whether the
bus’s immigration detention was then unduly prolonged.” Id. at
329. We had observed that “even if the inquiries” of the agent to
the defendant and his companion on the agent’s return to the front
of the bus “related to illegal drugs, Machuca-Barrera holds them
permissible so long as they were made during the reasonable length
20
of an immigration detention.” Id. at 328. Chacon plainly proceeds
on the premise that as the agent began his return to the front of
the bus he had already completed his immigration examination of all
passengers, with the possible single exception of the defendant and
his companion. Chacon, like Portillo-Aguirre, not only cannot
modify the holdings of Machuca-Barrera, but even apart from that
does not in any event mandate affirmance here.15
15
This is likewise true of United States v. Ellis, 330 F.3d 677 (5th Cir.
2003), also relied on to some extent by the district court and appellee. In
Ellis, involving a 1998 stop of a bus at the Sierra Blanca checkpoint,
“Agent Manuel Marquez boarded the bus and inquired as to every
passenger’s citizenship as he moved to the back of the bus. By the
time he reached the back of the bus, Marquez had assured himself
that all passengers on board were legally in the United States.
Marquez then began to return to the front of the bus,
searching the carry-on luggage in the upper bins using the ‘squeeze
and sniff’ method that he had been taught as part of his Border
Patrol training. Marquez would remove a piece of luggage from the
overhead bin, squeeze it ‘all the way around’ to check for soft
spots, and sometimes smell it. At some point in this process,
Marquez felt a ‘brick-like hard item’ in a black travel bag, which
he believed could be narcotics.” Id. at 678.
After procuring a drug sniffing dog who alerted to the bag, other bags were
“squeezed and sniffed,” and eventually searched, disclosing narcotics. There the
agent’s actions – even apart from the fact that he had already asked all
passengers about their immigration status – objectively considered by themselves
(and without reliance on testimony as to the agent’s subjective motivation) might
well be deemed not immigration related. Indeed, as we recognized, such actions
constituted a search, as the Supreme Court held in Bond v. United States, 120
S.Ct. 1462 (2000) (Bond II, reversing our contrary decision in United States v.
Bond, 167 F.3d 225 (5th Cir. 1999) (Bond I)). No prior consent was given to any
of the “squeezing and sniffing,” nor (at least prior to the first time the
process produced the feel of a brick like object), was there any reasonable
suspicion. Under Martinez-Fuerte a search at a fixed immigration checkpoint is
never justified – no matter when in the process it occurs – unless it is
supported by “consent or probable cause.” Whether the search in Ellis occurred
before or after completion of the immigration inspection there, it was in either
event illegal. Moreover, in Bond the Supreme Court made clear that the officer’s
“subjective intent” or “state of mind” in his squeezing and “physical
manipulation of” the luggage in the overhead bin was “irrelevant in determining
whether the officer’s actions violated the Fourth Amendment.” Id., 120 S.Ct. at
1465 n.2.
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Under Machuca-Barrera, it is clear that the district court
erred in holding that when Agent Grubbs received Jaime’s consent to
the search of her bag the permissible duration of her suspicionless
detention at the fixed immigration checkpoint had been exceeded and
her constitutional rights had been violated. Accordingly, the
district court’s determination that “no matter how voluntarily the
Defendant [Jaime] gave her consent, the search was impermissible”
because the consent was given while she was being illegally
detained and no circumstances intervened between the illegal
detention and the giving of the consent, is based on an error of
law. We therefore vacate the district court’s suppression order.
CONCLUSION
The district court’s suppression order is VACATED and the
cause is REMANDED to the district court for further proceedings not
inconsistent herewith.
VACATED and REMANDED.
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