United States v. Moreno-Vargas

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 02-40688
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN ANTONIO MORENO-VARGAS,

Defendant-Appellant.

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

December 18, 2002

Before GARWOOD, JOLLY, and SMITH, Circuit Judges.

GARWOOD, Circuit Judge:

Juan Antonio Moreno-Vargas appeals his conviction for

possession of cocaine with intent to distribute. Moreno contends

that the district court erred in denying his motion to suppress

evidence seized from his vehicle at the Sarita immigration

checkpoint. Citing City of Indianapolis v. Edmond, 531 U.S. 32,

121 S.Ct. 447 (2000), Moreno contends that his detention at the

checkpoint was illegal at its inception because the checkpoint has
a secondary programmatic purpose of drug interdiction, as evidenced

by the permanent presence of dogs cross-trained to detect drugs as

well as humans (the alert of the dogs being the same on detection

of either). This argument is without merit.

Moreno does not dispute that, as the district court found (on

the basis of ample, and virtually undisputed, evidence), the Sarita

checkpoint has as its primary programmatic purpose the enforcement

of the immigration laws. Edmond requires no more.

Edmond states “[o]ur holding also does not impair the ability

of police officers to act appropriately upon information that they

properly learn during a checkpoint stop justified by a lawful

primary purpose, even where such action may result in the arrest of

a motorist for an offense unrelated to that purpose.” Id., 121

S.Ct. at 457 (emphasis added).1 In United States v. Machuca-

Barrera, 261 F.3d 425 (5th Cir. 2001), we held that “checkpoints

with the primary purpose of identifying illegal immigrants are

constitutional,” id. at 431 (emphasis added), that in such a case

1
See also id., 121 S.Ct. at 456 n.1:

“. . . our judgment turns on the fact that the primary
purpose of the Indianapolis checkpoints is to advance the
general interest in crime control. THE CHIEF JUSTICE’s
dissent also erroneously characterizes our opinion as
holding that the ‘use of a drug-sniffing dog . . . annuls
what is otherwise plainly constitutional under our Fourth
Amendment jurisprudence.’ Post, at 458. Again, the
constitutional defect of the program is that its primary
purpose is to advance the general interest in crime
control.” (emphasis added).

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“[i]t is the length of the detention, not the questions asked, that

makes a specific stop unreasonable,” id. at 432, and that where

“the primary purpose of the . . . checkpoint is to investigate

immigration status . . . we face only the question of whether the

suspicionless [checkpoint] stop . . . was sufficiently limited in

duration to pass constitutional muster.” Id. at 434-35 (emphasis

added). In that case, we upheld the search despite the fact that

the Border Patrol Agent at the checkpoint had asked the defendant

about drugs, because the questioning was “within the permissible

duration of an immigration checkpoint stop.” Id. at 435. We are

aware that in its footnote 2 Edmond states “we need not decide

whether the State may establish a checkpoint program with the

primary purpose of checking licenses or driver sobriety and a

secondary purpose of interdicting cocaine.” Id., 121 S.Ct. at 457

n.2. However, we agree with the D.C. Circuit that this “footnote

seems divorced from the rest of the opinion” and that, as indicated

in other passages of Edmond above cited, a checkpoint is

constitutional if its primary purpose is lawful. United States v.

Davis, 270 F.3d 977, 979 (D.C. Cir. 2001). That is likewise the

necessary inference of our Machuca-Berrera holding discussed above.

Further, we cited Davis with approval in United States v. Green,

293 F.3d 855, 859 (5th Cir. 2002), in respect to determining “the

primary purpose of a checkpoint.”

The Sarita checkpoint, where Moreno was stopped, is and has

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been for over twenty-five years an established fixed immigration

checkpoint operated by the Border Patrol, the validity of which was

sustained in United States v. Martinez-Fuerte, 96 S.Ct. 3075, 3079,

3087 (1976), affirming United States v. Sifuentes, 512 F.2d 1402

(5th Cir. 1975) (table). We have long sustained such stops at this

checkpoint, including those where drugs were discovered (within the

scope of the immigration inquiry). See, e.g., United States v.

Rojas, 538 F.2d 670 (5th Cir. 1976); United States v. Medina, 543

F.2d 553 (5th Cir. 1976). Moreno does not argue, and did not argue

below, that the Sarita checkpoint would not be maintained were it

not for the fact that the immigration stops there often result in

interdiction of drugs, nor would the evidence support any such

finding, and the district court implicitly found to the contrary.

We accordingly hold that Moreno’s immigration stop at the

Sarita checkpoint was valid because the checkpoint has as its

primary programmatic purpose the enforcement of the immigration

laws, regardless of whether or not it could also be said to have a

secondary programmatic purpose of drug interdiction.2

In the instant case, a dog alerted to Moreno’s vehicle at the

primary inspection area, while a border patrol agent was

questioning Moreno about his citizenship (the dog was then outside

of the vehicle and no entry into it had been made). Thus, the

2
The district court made no finding as to whether or not there
was any such secondary programmatic purpose.

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agent had a reasonable suspicion before she had finished verifying

Moreno’s citizenship and the presence of the dog did not affect the

duration of the stop.

The judgment is

AFFIRMED.

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