     Case: 09-41142 Document: 00511384960 Page: 1 Date Filed: 02/16/2011




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

                                                 FILED
                                                                          February 16, 2011
                                       No. 09-41142
                                                                            Lyle W. Cayce
                                                                                 Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

LEONEL GARCIA, III,

                                                   Defendant-Appellant.




                    Appeal from the United States District Court
                         for the Southern District of Texas
                                  No. 5:09-CR-727




Before HIGGINBOTHAM, SMITH, and ELROD, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Leonel Garcia, III, was convicted of one count of possession with intent to
distribute less than fifty kilograms of marihuana under 21 U.S.C. § 841(a)(1) and



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-41142

(b)(1)(D) and 18 U.S.C. § 2. He appeals, challenging the denial of his motion to
suppress the marihuana seized from his truck when he attempted to enter the
United States at a border patrol checkpoint. We affirm, because Garcia consent-
ed to further searches before the agents had completed the programmatic immi-
gration purpose of the stop, so the search was reasonable.


                                       I.
      Garcia approached the checkpoint just south of Hebbronville, Texas, in his
pickup truck. Border Patrol Agent Carlos Cortez stopped the truck and asked
Garcia the routine immigration checkpoint questions about his citizenship,
where he was coming from, and where he was going. Garcia answered that he
was a U.S. citizen headed to Falfurrias, Texas, and that he was coming from his
job at an oil rig near La Gloria, one mile south of the checkpoint.
      About fifteen seconds into the questioning, Agent Ron Williams ap-
proached the truck and began visually inspecting it. He noticed a gasoline can
in the truck bed, which from experience he knew could mean that the driver was
carrying extra gas because the gas tank contained contraband. Williams bent
down to inspect the tank and noticed that it had clean patches that were incon-
sistent with the wear on the rest of the vehicle, indicating that someone had re-
cently tampered with it.
      At the same time, a third agent, Flores, approached the vehicle from the
other side and also inspected the tank. Shortly thereafter, he said to Williams
that it “looks like a gas tank,” thus confirming Williams’s suspicions. Williams
then flashed a hand signal to Cortez indicating that the truck should undergo
secondary inspection. The hand signal came about ninety seconds into the stop,
just after Cortez had completed the questioning about Garcia’s citizenship.
      Within a few seconds of seeing the hand signal, and about ten seconds
after completing the questioning about citizenship, Cortez asked Garcia whether

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                                  No. 09-41142

he would consent to pulling over for a secondary inspection, and Garcia agreed.
There were no other questions between the citizenship questions and the request
for consent.
      Garcia pulled to the side of the road while Williams obtained a dog, which
immediately alerted to the gas tank. The agents continued the search by using
a scope that indicated that the inside of the tank was obstructed. They took the
truck to the Border Patrol station in Hebbronville, where they removed the tank
and found approximately forty kilograms of marihuana.


                                        II.
      “In an appeal from the denial of a motion to suppress, we review questions
of law de novo and the district court’s factual findings for clear error.” United
States v. Portillo-Aguirre, 311 F.3d 647, 651-52 (5th Cir. 2002). Agents may stop
a vehicle briefly at a border patrol checkpoint without a warrant or individual-
ized reasonable suspicion for the purpose of identifying illegal aliens. United
States v. Jaime, 473 F.3d 178, 181 (5th Cir. 2006). Nonetheless, “‘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.’” Id. (alterations in original) (quoting United States v. Martinez-Fuerte,
428 U.S. 543, 567 (1976)).
      The agents obtained Garcia’s consent to a further search ninety seconds
into the stop. That search led to a positive canine alert, which then justified fur-
ther detention and searches. See United States v. Williams, 69 F.3d 27, 28 (5th
Cir. 1995). Thus, the entire search is reasonable if the detention was reasonable
up to the point when the agents obtained Garcia’s consent for further searches.
      The pre-consent detention was reasonable. Agents may stop travelers at
an immigration checkpoint stop for as long as “reasonably necessary to deter-
mine the citizenship status of the persons stopped.” United States v. Machuca-

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                                  No. 09-41142

Barrera, 261 F.3d 425, 433 (5th Cir. 2001). That period includes “the time neces-
sary 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). Cortez asked for
consent to extend the detention within ten seconds after he completed his immi-
gration questioning and without any intervening questions. Such a brief pause
is within the time reasonably necessary to formulate the request for consent and
thus was part of the programmatic immigration purpose of the stop.
      Garcia argues that a detention of even a few seconds beyond the comple-
tion of the immigration purpose impermissibly prolongs the stop. See United
States v. Ellis, 330 F.3d 677, 680-81 (5th Cir. 2003). That contention misses the
point, for the request for consent to extend the stop was itself part of the immi-
gration purpose of the stop and did not extend the stop beyond the immigration
purpose in any way.
      It is true that the agents’ request for consent to search apparently was
motivated by their suspicion that Garcia was carrying drugs and not by a desire
to conduct further immigration questioning. While Cortez was questioning Gar-
cia, two agents had independently examined the gas tank by looking underneath
the truck, and both had concluded that it looked suspicious. Moreover, the gas
can in the bed of the truck corroborated their suspicion that the tank was filled
with contraband. The agents communicated those drug-related concerns to Cor-
tez, who combined those concerns with his own observations about Garcia’s over-
ly cheerful manner and decided to ask for consent for further searches. The mo-
tivation behind the request, therefore, was to explore the agents’ drug-related
suspicions.
      Leaving aside the question whether those drug-related concerns them-
selves rose to the level of reasonable suspicion, the motivations behind the
agents’ questions are not constitutionally significant. See Machuca-Barrera, 261

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                                  No. 09-41142

F.3d at 434 (“We deploy a test that is both workable and which reinforces our re-
sistance to parsing the relevance of particular questions. To scrutinize too close-
ly a set of questions asked by a Border Patrol agent would engage judges in an
enterprise for which they are ill-equipped and would court inquiry into the sub-
jective purpose of the officer asking the questions.”). Instead, “policing the dura-
tion of the stop is the most practical enforcing discipline of purpose.” Id. Be-
cause Machuca-Barrera recognizes that a request to extend the detention may
be permissible for the reasonably necessary time needed for the programmatic
purpose of the stop to be completed, any drug-related suspicions that might have
motivated the question, in this case, are irrelevant.
         Consequently, we conclude that the agents obtained consent for further
searches before the end of the permissible immigration purpose of the stop. Their
searches were reasonable, and the denial of the motion to suppress was not
error.
         The judgment of conviction is AFFIRMED.




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