                        REVISED, July 12, 2000

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT

                        _____________________

                             No. 99-40620
                        _____________________


          UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

          v.

          ARTURO HERNANDEZ-ZUNIGA

                                          Defendant-Appellant


_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
_________________________________________________________________
                           June 14, 2000

Before KING, Chief Judge, and REAVLEY and STEWART, Circuit
Judges.

KING, Chief Judge:

     Following a bench trial, Defendant-Appellant Arturo

Hernandez-Zuniga was convicted of possession of cocaine with

intent to distribute.    He appeals his conviction and sentence,

arguing that the district court erred in refusing to grant his

motion to suppress.   We AFFIRM.



                                   I.
     Valley Transit Company (“VTC”) is a commercial bus company

that provides regularly scheduled passenger bus service in Texas.

On December 11, 1998, a VTC bus was traveling on U.S. Highway 77

during regularly scheduled passenger service between Brownsville

and Corpus Christi.1    Around 12:20 a.m., the bus was pulled over

outside of Riviera, Texas by the United States Border Patrol.

Border Patrol Agent Reynaldo Atanacio and his partner boarded the

bus and Atanacio announced: “U.S. Border Patrol, U.S. inspection.

If you’re not a citizen of the United States please have your

immigration documents ready to present to me.”    Atanacio and his

partner then began inquiring as to the passengers’ citizenship.

     While Atanacio was questioning a passenger in the second

row, he glanced up and made eye contact with Defendant-Appellant

Arturo Hernandez-Zuniga (“Hernandez”), who was sitting in the

third row.    Hernandez waved at Atanacio and said “U.S. citizen,

Officer.”    Atanacio directed Hernandez to stay in his seat and

stated that he would get to him shortly.   When Atanacio proceeded

to Hernandez and inquired as to his citizenship, Hernandez stated

that he was a U.S. citizen.    Atanacio then asked Hernandez where

he was traveling to and from, and Hernandez said that he was

traveling from Brownsville to Houston.    At this point, Atanacio


     1
        Highway 77 comes within one-half mile of the U.S.-Mexico
border and is known to law enforcement agencies as a major
thoroughfare for illegal aliens and narcotics traffickers. As a
result, a number of permanent checkpoints are set up along the
road and Border Patrol agents regularly patrol the highway.

                                  2
noticed that Hernandez was becoming increasingly nervous.

Concerned for his safety, Atanacio asked Hernandez whether he was

carrying any weapons.   Hernandez became agitated and answered

that he did not have any weapons.     He then jumped out of his seat

and asked: “Do you want to check on the seat and everything?”

     Atanacio instructed Hernandez to sit down, and then

proceeded to look around and under Hernandez’s seat.    He then

noticed that Hernandez’s coat, which was on the neighboring seat,

was covering a small black bag.   Upon questioning, Hernandez

stated that the bag was his and that it contained clothes.

Atanacio asked Hernandez if he would mind opening the bag.

Hernandez agreed, and Atanacio observed that the bag did indeed

contain clothing.   Atanacio then requested permission from

Hernandez to conduct a more thorough search of the bag and

Hernandez consented.

     During the search, Atanacio found two hard bundles wrapped

in shirts.   As Atanacio lifted the bundles out of the bag,

Hernandez stated: “Oh, that’s not mine.”    Atanacio punctured one

of the bundles with his knife and observed that it contained a

white powder, which he believed to be narcotics.    Atanacio then

placed Hernandez under arrest and transported him to a nearby

weigh station for further questioning.    After being read his

Miranda rights, Hernandez admitted that he knew the bundles were

cocaine, and that he was transporting the drugs from Brownsville

to Houston for an unnamed individual.

                                  3
     Prior to trial, Hernandez moved to suppress the cocaine.     He

argued that the initial stop of the bus by the Border Patrol

constituted an unlawful seizure under the Fourth Amendment.

Therefore, any evidence arising from that stop was tainted and

should be suppressed.

     At the suppression hearing, the district court heard

testimony from Ben Rios, the Director of Operations at VTC.    Rios

testified that VTC has a long-running practice of cooperating

with law enforcement agencies.   Rios stated that VTC keeps the

Border Patrol informed of its buses’ routes and time-tables, and

that the company encourages the Border Patrol to pull over VTC

buses and conduct immigration inspections.   Rios also stated that

the company requires its drivers to pull over and cooperate if

the Border Patrol signals the bus to stop — even if it means the

bus will be late in arriving at its destination.

     Rios explained that VTC adopted this policy for two reasons.

First, the company believed that the law required the buses to

stop when signaled to do so by the Border Patrol.   Second, Rios

stated that random stops and inspections by the Border Patrol

provided a benefit to the company.   Because VTC does not pick up

passengers only at regularly scheduled stops, but will pick up

anyone who flags down a bus, Rios noted that it is difficult to

control who is traveling on VTC’s buses and what they are

carrying on board.   As a result, VTC views random stops and

inspections by the Border Patrol as beneficial.    Therefore, Rios

                                 4
testified, VTC not only consents to, but encourages, the stops.

     The district court also heard from the driver of the bus,

Dionicio Areguellin.    Areguellin testified that random stops by

the Border Patrol were common on this route, and that the bus had

already been stopped by the Border Patrol twice that evening

before being stopped by Atanacio.     Areguellin testified that he

always cooperated during these stops and that he cooperated on

this occasion.   Areguellin stated that, while his managers had

not directly told him to always stop for the Border Patrol,

“everybody knows” that you are to pull over and stop when

signaled to do so.

     Agent Atanacio also testified at the hearing.    He stated

that the area where the bus was stopped is notorious for drug and

alien smuggling.   Atanacio testified that he finds illegal aliens

aboard seventy-five percent of the commercial buses he stops for

immigration inspections.    He also stated that, on average, the

immigration inspections only take ten to fifteen minutes.

Atanacio testified that, because illegal alien smugglers often

scout out Border Patrol checkpoints to see if the stations are

open or closed, he would often stop buses for inspections when,

as here, the closest permanent checkpoint (at Sarita) was closed.

Furthermore, Atanacio testified that when the checkpoints are

open, illegal aliens often try to avoid detection by getting off

the bus before it reaches a checkpoint and then circumventing the

checkpoint on foot.    Once they are around the checkpoint, the

                                  5
aliens will simply flag down a bus and continue their journey.

     The district court found that VTC and the bus driver

consented to the stop by the Border Patrol.   Because the stop was

consensual, the district court reasoned that the stop was

constitutional and did not violate Hernandez’s Fourth Amendment

rights.   Hernandez waived his right to a jury trial and,

following a bench trial, he was found guilty of possession of

cocaine with intent to distribute and sentenced to 72 months in

prison.   Hernandez timely appeals.



                                 II.

     We apply a two-tiered standard of review to a district

court’s denial of a motion to suppress.   We review the court’s

factual findings for clear error and its “ultimate conclusion as

to the constitutionality of the law enforcement action de novo.”

See United States v. Chavez-Villarreal, 3 F.3d 124, 126 (5th Cir.

1993).    Finding that the district court did not err in either its

factual or legal conclusions, we affirm Hernandez’s conviction

and sentence.

     On appeal, Hernandez argues only that the initial stop of

the bus by the Border Patrol constituted an unlawful seizure

under the Fourth Amendment.2   Hernandez contends that because the


     2
        We note in particular that Hernandez does not argue that
the agent’s initial questioning, without reasonable suspicion,
violated the Fourth Amendment.

                                  6
Border Patrol agents who stopped the bus had neither a warrant

nor reasonable suspicion that criminal activity was taking place

on board, the stop was unconstitutional and any evidence

emanating from it should be suppressed.

     The government responds to Hernandez’s argument by stating

that, while the Border Patrol may not have had reasonable

suspicion to stop the bus, the stop was nonetheless

constitutional because it was conducted pursuant to VTC’s

consent.   The government argues that VTC’s consent alone was

sufficient to render the stop constitutional.

     The district court agreed with the government.   Because the

evidence showed that VTC consented to random stops of its buses

by the Border Patrol, the district court ruled that the stop in

question was constitutional.   The district court emphasized that,

as a passenger on the bus, Hernandez did not have any control

over when or where the bus would stop en route.   The court noted

that the bus was liable to make any number of unscheduled stops

once a journey had begun, including stops to pick up passengers

who flagged down the bus.   Because Hernandez had surrendered to

the bus company the power to make unscheduled stops, including

stops to let other passengers on board, the district court ruled

that he “cannot complain that the bus company stops to let Border

Patrol agents, whom it desires to be on the bus, board the bus en

route.”

     The Fourth Amendment guarantees that the “right of the

                                 7
people to be secure in their persons, houses, papers and effects,

against unreasonable searches and seizures, shall not be violated

. . . .”    In the context of this case, the Amendment protects a

person’s interest in freedom of movement and seeks to ensure that

he will not be subject to random and arbitrary seizures.       See,

e.g., Delaware v. Prouse, 440 U.S. 648, 657 (1979) (noting that

the random stop of an automobile by the police interferes with a

person’s “freedom of movement, [is] inconvenient, and consume[s]

time”).    It is the case, however, that “the extent to which the

Fourth Amendment protects people may depend upon where those

people are.”    Minnesota v. Carter, 525 U.S. 83, 88 (1998).

     At issue is whether the Border Patrol’s stopping a public

bus on which Hernandez was a passenger resulted in Hernandez

being seized in violation of the Fourth Amendment.   The Supreme

Court has held that a Fourth Amendment seizure occurs “when there

is a governmental termination of freedom of movement through

means intentionally applied.”    Brower v. County of Inyo, 489 U.S.

593, 597 (1989) (emphasis deleted); see also Michigan Dep’t of

State Police v. Sitz, 496 U.S. 444, 450 (1990) (noting that a

Fourth Amendment seizure occurs when a vehicle is stopped at a

temporary, randomly placed, sobriety checkpoint); United States

v. Martinez-Fuerte, 428 U.S. 543, 556 (1976) (noting agreement

that stops at a checkpoint for detecting illegal aliens was a

Fourth Amendment seizure).   We assume for purposes of this

opinion that Hernandez was seized by the Border Patrol agents.

                                  8
      The question thus becomes whether the seizure was

reasonable.    See United States v. Brignoni-Ponce, 422 U.S. 873,

878 (1975) (“[T]he Fourth Amendment requires that the seizure be

‘reasonable.’”).    “The reasonableness of seizures that are less

intrusive than a traditional arrest depends on a balance between

the public interest and the individual’s right to personal

security free from arbitrary interference by law officers.”

Brown v. Texas, 443 U.S. 47, 50 (1979) (citations and internal

quotation marks omitted).    This test requires us to consider “the

gravity of the public concerns served by the seizure, the degree

to which the seizure advances the public interest, and the

severity of the interference with individual liberty.”    Id. at

51.   In the case before us, we have the additional consideration

of the effect of VTC’s consent.

      Although the concept of third party consent has been most

often applied in the context of searches, it can also be applied

to seizures.    See United States v. Woodrum, 202 F.3d 1, 11 (1st

Cir. 2000).    In the context of searches, it is well established

that the police may conduct a warrantless search of an area

without running afoul of the Fourth Amendment if a third party

with common control over the area consents to the search.    In

United States v. Matlock, 415 U.S. 164, 171 (1974), the Court

held that the consent of a person with common authority over a

shared bedroom legitimated a warrantless search of the room and

that the consent of the other occupant was not necessary.    The

                                  9
Court noted that “it is reasonable to recognize that any of the

co-inhabitants [of the room] has the right to permit the

inspection in his own right and that the others have assumed the

risk that one of their number might permit the common area to be

searched.”     Id. 415 U.S. at 171 n. 7.   We have found this

reasoning to be equally applicable to consensual searches of

automobiles.     See United States v. Crain, 33 F.3d 480, 484 (5th

Cir. 1994); United States v. Baldwin, 644 F.2d 381, 383 (5th Cir.

Unit A 1981) (per curiam) (holding that a person with common

authority over an automobile may consent to the search, even if

another person with common authority objects to the same).

     Arguably, a seizure by consent is presumptively reasonable

because “the consent acknowledges the individual’s right to be

free from interference and vitiates the intrusiveness of the

action.”   Woodrum, 202 F.3d at 11 (citing Florida v. Jimeno, 500

U.S. 248, 250-51 (1991)).     Here, however, the seizure is

authorized by a third party, rather than each of the individuals

subject to the seizure.     Therefore, we analyze the reasonableness

of a seizure conducted pursuant to third party consent, and

determine whether that consent justifies the stop.

     Hernandez maintains that, despite VTC’s consent, absent a

warrant or reasonable suspicion of criminal activity, the Border

Patrol’s seizure was unconstitutional because the bus was stopped

by agents, rather than stopped for another purpose.     Like the

district court, we do not accept this argument.     By purchasing a

                                  10
bus ticket from VTC and boarding its bus, Hernandez relinquished

to VTC a substantial amount of control over his movement.

Although the ticket gave Hernandez some expectations regarding

the bus’s   movement — namely that it would transport him from

Brownsville to Houston — VTC retained control over what route the

bus would take, the speed the bus would travel, and when and

where and for how long the bus would stop along the way.

Specifically, the evidence shows that VTC retained the right to

stop en route and pick up any passenger who flagged down a bus.

     In this respect, Hernandez is in a much different position

than the taxicab passenger in Woodrum.    That passenger, the

United States Court of Appeals for the First Circuit noted, had

“contracted to pay for both the right to exclude others from the

cab and the right to control its destination in certain respects”

and thus had “a reasonable expectation that he [would] not

gratuitously be seized while en route.”    Woodrum, 202 F.3d at 6.3

Hernandez could neither exclude others nor direct that the bus

driver take a particular route.    He could not order that the bus

continue moving toward its destination despite a driver-

     3
        In a case presenting somewhat similar facts as
Hernandez’s, the Ninth Circuit determined that the boarding of a
bus by a border patrol agent while the bus was stopped at a red
light implicated no constitutional rights of the appellant. See
United States v. Gonzales, 979 F.2d 711, 712-13 (9th Cir. 1992).
The primary differences between the facts of the Gonzales case
and those of the case before us are that in Gonzales, the bus was
already stopped when the agents boarded, and the agents
questioned passengers while the bus continued on its route. See
Gonzales, 979 F.2d at 713.

                                  11
determined reason to stop.   At the minimum, given that a VTC bus

may make any number of stops to pick up passengers, it is

reasonable to conclude that Hernandez assumed the risk that the

bus would make unplanned stops, as well as the risk that during

these stops the bus might be boarded by Border Patrol agents.

     Under these circumstances, the intrusion on Hernandez’s

Fourth Amendment interests effectuated by the Border Patrol’s

stop of VTC buses is quite limited.   As we have noted, Hernandez

could expect numerous stops while en route.   Frequent stops would

moderate any element of “fear and surprise,” Sitz, 496 U.S. at

452, associated with any particular cessation of forward

movement.   Uncontradicted evidence indicates that the Border

Patrol’s stops rarely exceed ten to fifteen minutes in length.

Furthermore, the stops and inspections consist of little more

than each passenger being asked some brief questions about his

citizenship and, perhaps, being asked to show proof of

citizenship.   All in all, the stop and immigration inspection is

no more than a minor intrusion upon an individual passenger’s

liberty.    Cf. Sitz, 496 U.S. at 451 (characterizing the intrusion

visited upon motorists forced to stop at a randomly placed,

temporary sobriety checkpoint was slight); Martinez-Fuerte, 428

U.S. at 560 (holding that, in the context of immigration

inspections conducted at a permanent Border Patrol checkpoint,

the “objective intrusion” caused by a brief inquiry into a

person’s citizenship is minimal).

                                 12
     Compared to the limited intrusion on Fourth Amendment

interests, the public concerns served by the stop are weighty.

Testimony in the district court indicated that VTC voluntarily

consented to random stops and immigration inspections by the

Border Patrol and that the company considered such stops

beneficial.   Rios testified that, given VTC’s willingness to pick

up passengers on the side of the road, the company has little

ability to monitor who is riding its buses and what they might be

carrying on board.   His testimony indicated that VTC feels that

random stops of its buses by the Border Patrol help ensure the

passengers’ and driver’s safety, and help prevent passengers from

using VTC buses to transport contraband.   Therefore, the

consented-to stops provide a certain benefit to the public by

helping ensure the safety of passengers on VTC buses.

     The stops also serve the public interest by helping law

enforcement agencies enforce immigration laws.   Agent Atanacio

testified that, in stops and inspections such as the one at issue

here, he discovered illegal aliens on board the bus seventy-five

percent of the time.   Given the relative likelihood of

discovering illegal aliens during these stops and inspections,

the stops additionally weigh in favor of the public interest by

aiding the Border Patrol in enforcement of the law.

     Further supporting the reasonableness of the stops is the

fact that VTC’s consent does not give the Border Patrol

unfettered discretion.   Rather, the consent limits the Border

                                13
Patrol to stopping VTC buses en route in order to conduct

immigration inspections.    As such, VTC’s consent is narrow in

scope and purpose.    While it is true that, in this instance, the

inspection revealed more than the presence of illegal aliens,

this does not detract from the limited nature and purpose of the

original stop.     Cf. Florida v. Jimeno, 500 U.S. 248, 257 (1991)

(holding that “[t]he scope of a search is generally defined by

its expressed object”).

     In light of VTC’s voluntary consent, and considering the

public benefits of the stop as opposed to the intrusion upon the

rights of the individual bus passenger, the balance tips in favor

of finding the stop reasonable.    As a result, we hold that when a

commercial bus company having a policy of making random,

unplanned stops to pick up passengers consents to random stops

and immigration inspections of its buses by the Border Patrol, a

stop conducted in accordance with that consent does not violate

the bus passengers’ Fourth Amendment rights.    In this case, there

is no evidence that the agreement between VTC and the Border

Patrol was not voluntary, or that the scope of this stop and

inspection went beyond the type of stop agreed to by VTC.    As

such, Hernandez’s Fourth Amendment right to be free from

unreasonable seizures was not violated when the Border Patrol

stopped the bus.

     Our holding today is supported by the First Circuit’s recent

decision in Woodrum.     At issue in Woodrum was Boston’s Taxi

                                  14
Inspection Program for Safety (“TIPS”), an effort by that city’s

police department and taxicab companies to prevent crimes against

taxi drivers.   Participation in TIPS is voluntary, and taxicab

companies choosing to participate consent to stops of their taxis

by police officers for the purpose of checking on the driver’s

safety.   Because participation in the program is voluntary, and

the scope and purpose of the stops limited, the First Circuit

held that the stops did not violate a taxicab passenger’s Fourth

Amendment rights.   See Woodrum, 202 F.3d at 12.    Hernandez could

not have had a greater expectation of privacy than Woodrum, a

single passenger in a taxicab.    Hernandez clearly did not have

the degree of control over the movement of the bus on which he

was riding that Woodrum had over the taxicab he had hired.



                                 III.

     Because Hernandez’s Fourth Amendment rights were not

violated when his bus was stopped by the Border Patrol, the

cocaine was properly admissible and the district court did not

err in denying Hernandez’s motion to suppress.     AFFIRMED.




                                  15
