     Case: 12-40019       Document: 00512098161         Page: 1     Date Filed: 01/02/2013




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

                                                                            FILED
                                                                          January 2, 2013
                                     No. 12-40019
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

OSCAR MONTANO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:11-CR-482-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Oscar Montano pleaded guilty to possession with intent to distribute
cocaine under Federal Rule of Criminal Procedure 11(a)(2), reserving his right
to appeal the district court’s denial of his motion to suppress. He asserts that
the district court clearly erred in finding that his encounter with border patrol
agents at a bus station in Brownsville, Texas, was not a seizure under the
Fourth Amendment. He relies on the agents’ actions of positioning themselves
at the entrance to the bus, identifying themselves to boarding passengers as

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40019

border patrol agents, asking the passengers to show proof of citizenship, and
requesting permission to search carry-on bags to argue that a seizure occurred.
Montano contends that a reasonable person under the circumstances would not
have felt free to disregard the agents and board the bus, and he notes that
passengers were not allowed to board without undergoing the inspection. We
conclude that the district court did not clearly err in finding that there was no
seizure.
      The applicable test is whether a reasonable innocent person would feel free
to leave, decline the officers’ requests, or otherwise terminate the encounter in
light of the officers’ actions. Florida v. Bostick, 501 U.S. 429, 435-38 (1991).
Nothing in the record here suggests that a reasonable innocent person would not
have felt free to abandon the boarding line and leave the bus station. While the
agents were uniformed and carried weapons, they made no threatening or
intimidating movements. They did not block the exits to the station, brandish
weapons, or use any show of force. See United States v. Drayton, 536 U.S. 194,
204-05 (2002). Montano conceded at the suppression hearing that he was free
to leave the bus station. See Bostick, 501 U.S. at 435-38. Although the agents
did not advise passengers that they could refuse to cooperate, that factor is not
determinative. See Drayton, 536 U.S. at 198, 203.
      Montano compares his contact with agents to the unconstitutional seizures
found in Brown v. Texas, 443 U.S. 47, 48-50 (1979), and United States v. Bowles,
625 F.2d 526, 532 (5th Cir. 1980). These cases are distinguishable from the
instant matter.
      For the first time on appeal, Montano also contends that the pre-boarding
inspection process violated the Fourth Amendment as a checkpoint primarily for
the purpose of general crime control. One of the agents testified that the
purpose of the inspection was to “check anything [traveling north] within the
proximity . . . of the border” for weapons or drugs “because of the escalating
violence in Mexico.” Because Montano did not raise this argument in his motion

                                       2
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                                  No. 12-40019

to suppress in the district court, he waived it. See United States v. Pope, 467
F.3d 912, 914-15, 917-20 (5th Cir. 2006). Even if we assume that he merely
forfeited the argument, see United States v. Baker, 538 F.3d 324, 328-29 (5th Cir.
2008), we find no plain error on the limited record before the district court. See
Puckett v. United States, 556 U.S. 129, 135 (2009); City of Indianapolis v.
Edmond, 531 U.S. 32, 37 (2000); Chandler v. Miller, 520 U.S. 305, 323 (1997).
      AFFIRMED.




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