                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                    February 11, 2004

                        _______________________                Charles R. Fulbruge III
                                                                       Clerk
                              NO. 01-50858
                        _______________________

                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

                           LEE ARTURO CHACON,

                                                     Defendant-Appellant.



            Appeal from the United States District Court
                  for the Western District of Texas
                            P-00-CR-412-F


Before GARWOOD, JONES, and STEWART, Circuit Judges.

PER CURIAM:*

           This case returns to the panel following remand to the

district court to determine the proper scope of the immigration

inspection at issue and to evaluate whether probable cause existed

to arrest Chacon.     See United States v. Chacon, 330 F.3d 323, 329

(5th Cir. 2003) (“Chacon I”).         Having now reviewed the factual

findings and legal determinations made by the district court on

remand, we find them consistent with this court’s precedents and

therefore AFFIRM the district court’s grant of Chacon’s motion to


     *
            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opinion should not be published and is not precedent except under the limited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.
suppress     and   REMAND    with    instructions     to    vacate   Chacon’s

conviction.

                              I.    BACKGROUND

           On November 6, 2000, Border Patrol Agent Jade A. Woodruff

boarded an Americanos bus originating in El Paso, Texas, at the

Sierra Blanca immigration checkpoint.              Agent Woodruff proceeded

through the bus asking for identification and questioning the

occupants regarding their immigration status.           When Agent Woodruff

approached Chacon and his juvenile companion, Julio Carrillo, to

inquire about their citizenship, they identified themselves as

U. S. citizens.       Agent Woodruff, noting that the two gave somewhat

awkward responses, continued to the back of the bus and inspected

the restroom in the rear.       While heading back to the front of the

bus, Agent Woodruff noticed the luggage stowed under Chacon’s and

Carrillo’s seats and began to wonder if the bags might contain

narcotics.    He then stopped next to the two passengers and began to

question them regarding their itinerary and the contents of their

luggage.      After    obtaining    consent   to   search   the   bags,   Agent

Woodruff discovered a nine-pound bundle of marijuana in Carrillo’s

bag.   The two were arrested and escorted off the bus.

           During the proceedings before the district court, Chacon

moved to suppress the evidence obtained as a result of the search

and his statements made following the search.              The district court

initially denied this motion in an order dated May 25, 2001.


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Chacon then conditionally pled guilty to possession with intent to

distribute less than 50 kilograms of marijuana, and was sentenced,

inter alia, to ten months of imprisonment.             On appeal, this panel

noted that the district court had “made no explicit finding whether

Agent Woodruff had or had not completed his immigration inquiries

of Chacon and Carrillo as he walked from the rear to the front of

the bus (or whether the bus’s immigration detention was unduly

prolonged.)”    See Chacon I, 330 F.3d at 329.               The district court

also “failed to address Chacon’s argument that Agent Woodruff

lacked probable cause to arrest him simply because he was traveling

with a juvenile who was carrying marijuana in his baggage.”                   Id.

On   remand,   the   district   court       found   that   Agent   Woodruff   had

completed his immigration inquiries of Chacon and Carrillo by the

time he returned from the back of the bus.                 See United States v.

Chacon, 2003 WL 22231298, at *4 (W.D. Texas, Sept. 19, 2003)

(“Chacon II”).        Because   the   district       court   found   that   Agent

Woodruff’s additional questioning of Chacon and Carrillo did not

conform to the immigration purpose of the initial stop, it held

that under this court’s decision in United States v. Portillo-

Aguirre, 311 F.3d 647 (5th Cir. 2002), the detention was unduly

prolonged and was therefore improper under the Fourth Amendment.

Chacon II, 2003 WL 22231298 at *7-*10.              As a result, the district

court reversed its initial denial of Chacon’s motion to suppress

and granted the motion as to all the evidence derived from the

search, as well as Chacon’s subsequent statement.               Chacon II, 2003

                                        3
WL 22231298 at *11.        The district court also decided that, even if

the search had been constitutional, Agent Woodruff would not have

had the requisite probable cause to arrest Chacon merely because he

was   traveling    with    Carrillo.            Id.   at     *12-*13.        This    appeal

followed.

                                  II.    DISCUSSION

A.    Standard of Review

            When analyzing a ruling on a motion to suppress, this

court reviews questions of law de novo and findings of fact for

clear error.      See Chacon I, 330 F.3d at 326 (citing United States

v. Castro, 166 F.3d 728, 731 (5th Cir. 1999) (en banc)).

B.    Scope of the Stop

            Acting   at    the     behest       of    this    court,    on    remand      the

district court undertook a comprehensive review of the evidence

adduced   at   trial      and    noted    that        Agent    Woodruff      made     “five

unequivocal statements to the effect that he had completed the

immigration purpose of the stop” before proceeding from the back of

bus toward the front.           See Chacon II, 2003 WL 22231298 at *3.                    At

the same time, however, two other statements made by Agent Woodruff

on cross-examination appeared to conflict with his statements that

he had completed the immigration purpose of the stop.                               Id.    To

reconcile the statements, the district court carefully examined

their context and determined that Agent Woodruff had resolved the

immigration status of both Chacon and Carrillo before he prolonged


                                            4
the detention of the bus through his questioning.                    Id. at *4.

Regardless how this court might have evaluated the transcript, we

find no clear error in this factual finding.

           The district court accordingly determined that Agent

Woodruff’s additional questioning of Chacon and Carrillo was not

objectively reasonable because it did not conform to the justifying

purpose of the stop — determining the citizenship status of persons

traveling through the Sierra Blanca checkpoint. Id. at *5-*7. The

district court applied this court’s decision in Portillo-Aguirre,

a case involving the same checkpoint, the same Border Patrol agent

and a similar factual scenario.              In Portillo-Aguirre, this court

held that where a border patrol agent has completed the immigration

purpose of a stop, questioning that unduly prolongs the duration of

the stop may be improper under the Fourth Amendment.                    See United

States v. Portillo-Aguirre, 311 F.3d at 657 (holding that “if an

agent does not develop reasonable suspicion of [criminal] activity

before the    justifying       purpose   of    a    checkpoint   stop    has   been

accomplished, he may not prolong the stop”).                The district court’s

legal determination, based on its factual determination that the

immigration purpose of the stop was completed before the stop was

extended   by     Agent    Woodruff’s         additional      drug-interdiction

questions, necessarily follows from Portillo-Aguirre.

           Notwithstanding this case, we continue to read Portillo-

Aguirre to hold only that where an agent acknowledges that the

immigration     purpose   of     a   stop     has    been   completed,     further

                                         5
questioning may impermissibly extend the stop, and we reiterate

that   Portillo-Aguirre      “does   not    establish    an    inflexible    rule

concerning immigration checkpoints that limits agents to one set of

questions.”   Chacon I, 330 F.3d at 327-29.             Moreover, there is no

evidence here, based on the court’s findings, that the agent was

alerted to additional facts that might have raised a reasonable

suspicion of criminal activity as he was proceeding down the aisle

after checking the bathroom.         As a result, the evidence seized as

a result of the improper search, as well as Chacon’s statements to

authorities following his arrest, must be suppressed.

C.   Probable Cause for Arrest

           Because we have affirmed the district court’s suppression

ruling, we need not reach the question whether probable cause

existed to arrest Chacon.

                              III.   CONCLUSION

           For the reasons discussed above, we AFFIRM the district

court’s   grant   of   the    motion       to   suppress      and   REMAND   with

instructions to vacate Chacon’s conviction.




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