                                                                                        United States Court of Appeals
                                                                                                 Fifth Circuit
                                                                                               F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                                July 16, 2004
                                   FOR THE FIFTH CIRCUIT
                                                                                           Charles R. Fulbruge III
                                                                                                   Clerk


                                            No. 03-51116
                                          Summary Calendar



UNITED STATES OF AMERICA,

                                                                                         Plaintiff-Appellee,

                                                 versus

JOAQUIN CERVANTES-MORALES,

                                                                                       Defendant-
                                                          Appellant.

                       -------------------------------------------------------------
                           Appeal from the United States District Court
                                  for the Western District of Texas
                                USDC No. DR-02-CR-614-1-AML
                       -------------------------------------------------------------

Before SMITH, DeMOSS AND STEWART, Circuit Judges:

PER CURIAM:*

       Joaquin Cervantes-Morales entered a conditional guilty plea to conspiracy to possess with

intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(B) and 846. Cervantes

was sentenced to 37 months in prison and five years of supervised release. He appeals the district

court’s order denying his motion seeking the suppression of his incriminating statements.




       *
           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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
        Cervantes argues that he was detained for Fourth Amendment purposes duri ng a roadside

encounter with border patrol agents. He points to the following facts. Cervantes was detained

for over an hour at the Comstock, Texas, border patrol station. Agent Jose Rendon followed

Cervantes in a marked police cruiser when he left the station. After Cervantes pulled to the side of

the road and activated his safety hazard lights, Agent Rendon pulled in behind him and activated his

emergency flashing lights. Shortly thereafter, Agent Francisco Hernandez pulled up behind Agent

Rendon and activated his emergency flashing lights. The agents questioned Cervantes and asked

permission to search his car. Cervantes waited inside Agent Rendon’s cruiser during the search and

then was released from the cruiser. Cervantes contends that these facts, along with the fact that the

encounter took place at 4:00 a.m., amount to a seizure that required an articulable reasonable

suspicion of criminal activity.

        It is undisputed that the border patrol agents did not exert any physical force over Cervantes.

Reviewing the record for clear error, as we must, we conclude that the agents’ conduct and speech

had no coercive effect on Cervantes. See United States v. Mask, 330 F.3d 330, 334-35, 337 (5th Cir.

2003). Because, under the circumstances surrounding the incident, a reasonable and innocent person

would have believed that he was free to leave, we conclude that the district court did not clearly err

in determining that the roadside encounter did not amount to a seizure for Fourth Amendment

purposes. See United States v. Mendenhall, 446 U.S. 544, 554 (1980); Mask, 330 F.3d at 336.

        Cervantes argues that his detention ripened into a full custodial arrest when he agreed to

accompany the agents back to the Comstock station and that his consent to do so was the result of

coercion or duress. The evidence showed that Cervantes was asked, not commanded, to follow the

agents back to the Comstock station. The fact that Cervantes’ vehicle was between the agents’ two


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cruisers on the trip back is not decisive. The Government’s evidence showed that Cervantes agreed

to follow the agents in his own car despite the absence of any threats or show of force and that the

agents did not use their emergency flashing lights for the trip back to the station. The totality of the

evidence in this case was adequate to support the district court’s finding that Cervantes voluntarily

consented to accompany the agents to the Comstock station. See Mendenhall, 446 U.S. at 557-58;

United States v. Brunson, 549 F.2d 348, 358 (5th Cir. 1977).

        Alternatively, Cervantes argues that his detention ripened into a full custodial arrest while he

waited in the border patrol station for over three hours before being interviewed. The evidence

showed that Agents Rendon and Hernandez took Cervantes into the station through a doorway that

leads into a hallway full of supervisory offices. It is unclear where he was left to wait. However, the

evidence showed that he was not taken into the back of the station where aliens are processed and

where the holding cells are located. Instead, Cervantes was left unattended while agents processed

illegal aliens that had been apprehended contemporaneously with Cervantes’ roadside encounter.

Under these circumstances, no reasonable person would have understood the situation to constitute

a restraint on his freedom such as is normally associated with a formal arrest. See United States v.

Garcia, 77 F.3d 857, 860 (5th Cir. 1996). Thus, the district court did not err in finding that there was

no custodial arrest for purposes of the Fourth Amendment.

        AFFIRMED.




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