     Case: 10-40556     Document: 00511508615          Page: 1    Date Filed: 06/14/2011




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

                                                  FILED
                                                                            June 14, 2011
                                       No. 10-40556
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee

v.

ROLANDO LOPEZ,

                                                   Defendant–Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                             USDC No. 2:10–CR–126–1


Before REAVLEY, GARZA, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        After a bench trial, Rolando Lopez was convicted of possessing more than
500 grams of methamphetamine with intent to distribute, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(A). Lopez appeals, challenging the district court’s
denial of his motion to suppress evidence seized while Lopez was stopped at an
immigration checkpoint. This appeal requires us to determine whether Lopez’s
detention was unconstitutionally prolonged beyond the time when the
programmatic purpose of the immigration stop had been accomplished (i.e.,



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 10-40556      Document: 00511508615         Page: 2    Date Filed: 06/14/2011



                                      No. 10-40556

when Lopez’s immigration status was verified). Because we find that Lopez’s
prolonged detention was based on a reasonable suspicion that Lopez was
engaged in criminal activity, we AFFIRM.
                                             I
       On January 24, 2010, an El Expresso passenger bus arrived at the
permanent immigration checkpoint on U.S. Highway 77 near Sarita, Texas.
Three U.S. Border Patrol agents boarded the bus and began an immigration
inspection. One agent proceeded immediately to the rear of the bus to check the
bathroom and to begin inspecting passengers from the back, while Agent Brian
Carter began inspecting passengers from the front. The bus, which contained
forty to fifty seats, was carrying roughly twenty passengers that evening, most
of whom were seated towards the front. As the inspection began, Agent Eufracio
Perez remained in the front of the bus as an observer.
       As Agent Carter made his way toward the middle, he noticed Lopez, age
nineteen, in a window seat on the driver’s side of the bus. Lopez was seated next
to a woman in her late thirties or early forties, but the two did not appear to be
traveling together. Lopez looked out the window the entire time Agent Carter
questioned the woman in the aisle seat about her immigration status, which
Agent Carter found unusual.1 When Agent Carter finished talking with the
woman, Lopez turned to him and produced his birth certificate and Texas
identification card before Agent Carter had addressed him. The identification
card showed an address in Brownsville, Texas.
       Conversing in Spanish, Agent Carter asked Lopez whether he was a U.S.
citizen. Lopez answered affirmatively. Carter then asked Lopez whether he was
traveling with anyone, to which Lopez replied that he was headed to Austin.


       1
        At the suppression hearing, Agent Carter explained that “[n]ine times out of ten,”
passengers in the middle of the bus focus their attention on a Border Patrol agent while the
agent questions the person seated next to them.

                                             2
   Case: 10-40556       Document: 00511508615          Page: 3    Date Filed: 06/14/2011



                                       No. 10-40556

Agent Carter repeated his question, and this time Lopez said that he was
traveling alone.2 Agent Carter later described Lopez as appearing “nervous” and
“shifting around in his seat” during this initial questioning.
       Lopez did not appear to have any personal items with him—e.g., a bag,
backpack, magazines, or books—and after Agent Carter confirmed that Lopez
was traveling alone, he asked Lopez whether he had any luggage on the bus.
Lopez said that he did not, and that he had clothes in Austin. Agent Carter
found this suspicious for two reasons. First, as he explained at the suppression
hearing, Agent Carter thought it was unusual that Lopez said he was traveling
without luggage and had clothes in Austin because his identification card listed
a Brownsville address. Second, Carter explained that from his training and
experience as a Border Patrol agent, he knew that narcotics smugglers tended
to separate themselves from their luggage. And so, given Lopez’s unusual body
language and Carter’s heightened suspicion in light of the questions and
answers that just preceded, when Lopez said that he was not traveling with any
luggage on the five- to eight-hour trip from Brownsville to Austin, Agent Carter
“believed he was smuggling narcotics.”
       When Agent Carter finished this series of questions, he had no doubt
about Lopez’s status as a U.S. citizen. But because he now believed that Lopez
was smuggling narcotics, he asked Agent Perez, who had come from his position
at the front of the bus and was standing behind Agent Carter during the
interview,3 to escort Lopez off the bus for further questioning. Agent Perez


       2
          At the suppression hearing, Agent Carter explained that this series of questioning
also raised his interest. As to Lopez’s seating arrangement, Agent Carter was thinking “Why
is he sitting next to this woman if there . . . are open seats on the bus?” As for Lopez’s non-
responsive answer to the opening question about whether he was traveling alone, Agent Carter
said that he began wondering, “Why didn’t he answer my question correctly? It wasn’t a
difficult question. You know, why is he anticipating possibly my questions?”
       3
         Agent Perez explained that he came to assist when Carter began questioning Lopez
because he perceived Lopez to be displaying unusual behavior. See R. 130 (“As I was observing

                                              3
   Case: 10-40556       Document: 00511508615          Page: 4    Date Filed: 06/14/2011



                                       No. 10-40556

asked Lopez in Spanish, “Can you get off the bus to ask you more questions?”
Lopez did not say anything in response, but stood up and got off the bus. Agent
Carter then resumed inspecting passengers inside the bus while Agent Perez
questioned Lopez outside.
       After asking several questions alongside the bus, Agent Perez noticed that
Lopez’s feet were “high” in his shoes and appeared to be uncomfortable. Agent
Perez asked Lopez to remove his shoes, which, upon further inspection, revealed
a bundle containing .93 kilograms of methamphetamine.
       Lopez moved to suppress the evidence seized by Agent Perez on the ground
that it was obtained in violation of the Fourth Amendment to the U.S.
Constitution. Specifically, Lopez argued that Agent Carter’s questioning, which
ultimately led to the discovery of the methamphetamine, was unconstitutionally
prolonged beyond the time when the programmatic purpose of the immigration
stop had been accomplished (i.e., when Lopez’s immigration status was no longer
in question). The district court conducted an evidentiary hearing and denied
Lopez’s motion to suppress, explaining:
       I think it’s very close but I think it was a very short time and I
       believe that when the officer testified – and I don’t have any reason
       to doubt his credibility – and I think that your client was also
       creditable – that the difference in the addresses, where he said he
       was living in Austin but his driver’s license said an address in
       Brownsville. He had gone for a very long trip actually to Matamoros
       and back to Austin without any baggage, any luggage. And the fact
       that he appeared to the agent to be nervous was enough to give him
       reasonable suspicion to make further inquiries. And it didn’t last
       long. The whole bus stop apparently was seven minutes or less, and
       the conversation with your client was five minutes or less.

The district court observed that the defense had failed to elicit any evidence as
to “how many times [Border Patrol agents] searched people and found nothing.”


the people in the bus, I noticed that Mr. Lopez was kind of nervous, avoiding eye contact, just
looking outside the window. And I approached Mr. Carter to see if he needed anything.”).

                                              4
   Case: 10-40556    Document: 00511508615     Page: 5   Date Filed: 06/14/2011



                                  No. 10-40556

      After a short bench trial, the district court convicted Lopez of possessing
more than 500 grams of methamphetamine with intent to distribute, and
sentenced him to 63 months’ imprisonment, among other penalties. This appeal
followed.
                                        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). “To the extent
the underlying facts are undisputed, as they essentially are here, we may resolve
questions such as probable cause and reasonable suspicion as questions of law.”
Id. at 652 (quoting Blackwell v. Barton, 34 F.3d 298, 305 (5th Cir. 1994)). We
view the evidence in this case in the light most favorable to the government, as
the party that prevailed below. See United States v. Ellis, 330 F.3d 677, 679 (5th
Cir. 2003).
                                       III
      The Fourth Amendment provides that “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated.” U.S. C ONST. amend. IV. “A search
or seizure is ordinarily unreasonable in the absence of individualized suspicion
of wrongdoing.” City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). The
Supreme Court, however, has upheld the constitutionality of suspicionless
searches at permanent immigration checkpoints like the one involved in this
case. See United States v. Martinez-Fuerte, 428 U.S. 543, 566 (1976); see also
United States v. Moreno-Vargas, 315 F.3d 489, 490 (5th Cir. 2002). Border
Patrol agents stationed at a permanent checkpoint may stop a vehicle, question
its occupants about their citizenship, and conduct a visual inspection of the
vehicle without any individualized suspicion that the vehicle or its occupants are
involved in a crime. See Martinez-Fuerte, 428 U.S. at 558–61. This rule applies

                                        5
   Case: 10-40556    Document: 00511508615      Page: 6   Date Filed: 06/14/2011



                                  No. 10-40556

equally to commercial buses. See Portillo-Aguirre, 311 F.3d at 652; United
States v. Ventura, 447 F.3d 375 (5th Cir. 2006).
      Nonetheless, immigration checkpoint stops, which constitute “seizures”
within the meaning of the Fourth Amendment, are not without limits. See
Martinez-Fuerte, 428 U.S. at 556. “To determine the lawfulness of a stop, we ask
whether the seizure exceeded its permissible duration. We look to the scope of
the stop in order to determine its permissible duration.”        United States v.
Machuca-Barrera, 261 F.3d 425, 432 (5th Cir. 2001). The scope of a checkpoint
stop is limited to determining the citizenship status of persons passing through
the checkpoint, and the permissible duration “is therefore the time reasonably
necessary to determine the citizenship status of the persons stopped.” Id. at 433.
This includes the time needed to ascertain the number and identity of the
occupants of the vehicle, to inquire about citizenship status, to request
identification or other proof of citizenship, and, if necessary, to request consent
to extend the detention. Id.
      “An officer may ask questions outside the scope of the stop, but only so
long as such questions do not extend the duration of the stop. It is the length of
the detention, not the questions asked, that makes a specific stop unreasonable
. . . .” Machuca-Barrera, 261 F.3d at 432; see also United States v. Shabazz, 993
F.2d 431, 436 (5th Cir. 1993) (“[W]e reject any notion that a police officer’s
questioning, even on a subject unrelated to the purpose of the stop, is itself a
Fourth Amendment violation.”). “[D]etention, not questioning, is the evil at
which Terry’s second prong is aimed.” Shabazz, 993 F.2d at 436.
      Here, the district court found that the El Expresso bus was stopped for
approximately seven minutes, and that Agents Carter and Perez questioned
Lopez inside and outside the bus for “five minutes or less” combined. The parties
do not contest these findings. Instead, Lopez avers that the relevant period for
Fourth Amendment purposes is the three-plus minutes of questioning that

                                        6
   Case: 10-40556   Document: 00511508615      Page: 7     Date Filed: 06/14/2011



                                  No. 10-40556

occurred outside the bus after Agent Carter was satisfied of Lopez’s citizenship
status. See Appellant’s Reply Br. at 3; see also Oral Argument at 1:25–1:42,
available at http://coa.circ5.dcn/OralArgRecordings/10/10-40556_4-27-2011.wma.
But, as Lopez agrees, this measuring period is correct only if Agent Carter did
not have reasonable suspicion to prolong the questioning. See Oral Argument
at 2:25–2:55; see generally Machuca-Barrera, 261 F.3d at 434 (“[I]f the initial,
routine questioning generates reasonable suspicion of other criminal activity, the
stop may be lengthened to accommodate its new justification.”). Otherwise, the
relevant period for assessing the reasonableness of Lopez’s detention is the one-
to-two minutes between when Agent Carter began interviewing Lopez on the bus
and the time that he asked Agent Perez to escort Lopez off for additional
questioning. And, as we have found elsewhere, a stop lasting “only a couple of
minutes” is within the permissible duration of an immigration stop. Machuca-
Barrera, 261 F.3d at 435. Thus, this appeal turns on whether Agent Carter had
reasonable suspicion to prolong the interview at the time he concluded his initial
immigration questioning and asked Lopez to get off the bus.
      Reasonable     suspicion   requires   more    than     an    “inchoate    and
unparticularized suspicion or ‘hunch,’” Terry v. Ohio, 392 U.S. 1, 27 (1968), but
“considerably less than proof of wrongdoing by a preponderance of the evidence.”
United States v. Sokolow, 490 U.S. 1, 7 (1989). The relevant inquiry is whether
the “totality of the circumstances” creates a reasonable suspicion of criminal
activity. See United States v. Arvizu, 534 U.S. 266, 273 (2002). Viewed together,
the totality of evidence here—Lopez’s avoidance of Agent Carter as Carter
questioned his seatmate, Lopez’s non-responsive answer to Agent Carter’s
opening question, Lopez’s statement that he had clothes in Austin while his ID
showed a Brownsville address, Lopez’s nervousness and shifting posture, and
Lopez’s indication that he was traveling without any luggage on a lengthy bus
ride, which in Agent Carter’s training and experience was a technique often

                                        7
   Case: 10-40556      Document: 00511508615        Page: 8    Date Filed: 06/14/2011



                                     No. 10-40556

employed by drug smugglers—all combined to create a reasonable suspicion that
Lopez was engaged in criminal activity. As such, we agree with the district court
that Agent Carter was justified in extending Lopez’s detention. And because
Carter’s reasonable suspicion was developed during the permissible duration of
the routine immigration check, see Machuca-Barrera, 261 F.3d at 435, we affirm
the district court’s denial of Lopez’s motion to suppress.4
                                         IV
      The judgment of conviction is AFFIRMED.




      4
         Our finding that Agent Carter had reasonable suspicion to prolong the questioning
obviates the issue of consent alternatively briefed by the parties.

                                            8
