     Case: 18-40365      Document: 00514997259         Page: 1    Date Filed: 06/14/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                      No. 18-40365                   June 14, 2019
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk


              Plaintiff - Appellee

v.

JOSE JUAN VALLEJO, JR.,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:17-CR-566-1


Before JONES, HO, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Jose Juan Vallejo appeals from the dismissal of his motion to suppress
evidence.    At an immigration checkpoint, Ernesto Cantu, a Border Patrol
Agent, found marihuana in Vallejo’s car. Vallejo moved to suppress evidence
of the marihuana and his subsequent statements, alleging Cantu found the
drugs after an illegal search. After a hearing on the motion, the district court




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-40365
denied the motion and Vallejo appealed. For the following reasons, we affirm
the district court’s decision.
      Cantu stopped Vallejo at a routine immigration checkpoint near Sarita,
Texas on August 17, 2017.        Cantu asked Vallejo for identification, which
Vallejo provided. At the suppression hearing, Cantu testified that Vallejo was
sweating, fidgety, avoided eye contact, and otherwise seemed nervous. While
Vallejo’s identification papers were standard, Vallejo’s behavior made Cantu
curious. Vallejo claimed to be traveling to Corpus Christi, in a car he claimed
belonged to a friend. Cantu asked if Vallejo would consent to allowing him to
view the interior of the trunk. Vallejo consented. The trunk was empty, which
Cantu found odd in light of Vallejo’s story of traveling to Corpus Christi. He
asked Vallejo if he would consent to inspection in a secondary inspection lane,
and again, Vallejo consented. Cantu testified, and Vallejo does not dispute,
that the entire stop in the primary inspection lane lasted between forty-five
seconds to one minute. Once in the secondary inspection lane, a canine unit
alerted to the front bumper of the car and the officers found marihuana inside.
      Vallejo objected to the search, arguing that the agents unconstitutionally
prolonged his detention beyond the permissible purpose of the immigration
inspection, thus violating his Fourth Amendment rights.
      We review a district court’s factual findings for clear error and its legal
conclusions de novo. United States v. Rodriguez, 702 F.3d 206, 208 (5th Cir.
2012).   Suspicionless “stops for brief questioning routinely conducted at
permanent checkpoints are consistent with the Fourth Amendment” in the
immigration context. United States v. Martinez-Fuerte, 428 U.S. 543, 566
(1976). We have long held that the validity of an immigration stop turns on
“the length of the detention, not the questions asked.”        United States v.
Machuca-Barrera, 261 F.3d 425, 432 (5th Cir. 2001). An immigration stop may
continue for as long as is needed to ascertain the identity of a person, to
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                                 No. 18-40365
“inquire about citizenship status, request identification or other proof of
citizenship, and request consent to extend the detention.” Id. at 433.
      Vallejo argues that Machuca-Barrera is no longer applicable in light of
the Supreme Court’s decision in Rodriguez v. United States, 135 S. Ct. 1609
(2015). But this court recently held that there is no conflict between Machuca-
Barrera and Rodriguez. See United States v. Tello, No. 18-40347, 2019 WL
2183348, at *4 (5th Cir. May 21, 2019).       Rodriguez allows for stops of a
“tolerable duration”—a duration that is circumscribed by the reason for the
stop. 135 S. Ct. at 1614. As this court has recognized, “an immigration stop
may take up to five minutes.” Tello, 2019 WL 2183348, at *5 (citing Martinez-
Fuerte, 428 U.S. at 563).
      Cantu stopped Vallejo for one minute, at the most, before Vallejo
consented to a secondary search. Cantu articulated specific reasons for the
further questions and then asked if Vallejo would consent to a secondary
search, all within forty-five to sixty seconds. There is no evidence that he
impermissibly extended the stop beyond the original purpose.
      Finally, Vallejo argued that even if the stop did not violate the Fourth
Amendment, his consent for a further search was not voluntary. This court
has identified six factors for determining whether consent was voluntarily and
freely given:
       (1) the voluntariness of the defendant’s custodial status; (2) the
       presence of coercive police procedures; (3) the extent and level of
       the defendant’s cooperation with the police; (4) the defendant’s
       awareness of his right to refuse to consent; (5) the defendant’s
       education and intelligence; and (6) the defendant’s belief that no
       incriminating evidence will be found.

United States v. Olivier-Becerril, 861 F.2d 424, 426 (5th Cir. 1988).
      The district court weighed these factors and concluded that factor (1)
weighed in Vallejo’s favor, while factors (2), (3), and (5) weighed in the

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government’s favor. The court found factors (4) and (6) to be neutral. Vallejo
argues he was not informed that he had a right to refuse consent, but the law
does not require Cantu to inform Vallejo of his right to refuse. See United
States v. Lopez, 911 F.2d 1006, 1011 (5th Cir. 1990) (“[T]he lack of awareness
of this right [to refuse consent] does not taint the voluntariness of consent.”).
Vallejo argues his consent could not possibly have been informed and
voluntary, because he suffers from learning disabilities and other mental
health conditions for which he receives social security disability income. The
district court acknowledged that Vallejo had a learning disability, but the court
observed that Vallejo had graduated high school, had lived independently from
his family, and had prior interactions with law enforcement that made him
likely to appreciate the significance of his consent.
      The district court’s finding of consent may be overturned on appeal only
if clearly erroneous. Id. at 1010. “Where the judge bases a finding of consent
on the oral testimony at a suppression hearing, the clearly erroneous standard
is particularly strong since the judge had the opportunity to observe the
demeanor of the witnesses.” United States v. Sutton, 850 F.2d 1083, 1086 (5th
Cir. 1988). Vallejo does not present evidence of error, let alone clear error, in
the district court’s order.
      Accordingly, the district court did not err in denying Vallejo’s motion to
suppress evidence. Cantu stopped Vallejo for a permissible length of time and
Vallejo voluntarily consented to the secondary search. Therefore, we affirm
the district court’s denial of Vallejo’s motion to suppress.




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