                                                                       United States Court of Appeals
                                                                                Fifth Circuit
                                                                              F I L E D
                            REVISED MAY 10, 2006
                                                                              April 20, 2006
                    IN THE UNITED STATES COURT OF APPEALS
                                                                          Charles R. Fulbruge III
                              FOR THE FIFTH CIRCUIT                               Clerk



                                     No. 04-41524
                                   Summary Calendar



      UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellant,

                                         versus

      LEONEL VENTURA,

                                                       Defendant-Appellee.


                  Appeal from the United States District Court for
                           the Southern District of Texas
                         (USDC No. 5:04-CR-1436-ALL)
         _________________________________________________________


Before REAVLEY, HIGGINBOTHAM and CLEMENT, Circuit Judges.

REAVLEY, Circuit Judge:

      The Government appeals the district court’s grant of defendant Leonel Ventura’s

motion to suppress evidence of marijuana discovered in the exterior luggage bin of a

commercial bus during an immigration checkpoint stop. We reverse.

                                            I.


                                            1
       Leonel Ventura was a passenger on a commercial bus that arrived at a fixed

immigration checkpoint on Interstate 35 near Laredo, Texas in the early morning hours of

June 21, 2004. Routinely, two Border Patrol agents would perform bus inspections, with

one agent questioning the passengers and inspecting the restrooms for concealed persons

and drugs, while the other used a canine to sniff the bus and run through the exterior

luggage compartment, where hidden undocumented aliens were often discovered.

Because Ventura’s bus arrived at 12:30 a.m., at the moment an agent shift change

occurred, Agent Ian Clevenger, a canine handler, was the only agent available to conduct

the immigration inspection of the bus.

       Agent Clevenger first entered the bus’s passenger compartment and conducted an

immigration inspection of the fifteen or so visible passengers, passing from front to back

asking citizenship and requesting documents if necessary. Ventura told the agent that he

was going to San Antonio and returning later that day and that he had no luggage. Agent

Clevenger later recalled that he found it “kind of awkward” that somebody would be

making such a brief round trip, but he did not question Ventura further.

       After questioning the passengers and checking the restroom, Agent Clevenger left

the bus, got his canine and, opening the undercarriage luggage bins, commanded the dog

to get in and search. The dog, which was trained to detect both concealed people and

narcotics, alerted to two bags. Agent Clevenger later testified that approximately three

and one-half minutes elapsed between the time he began his questioning of the bus’s

passengers and the time the dog alerted in the luggage compartment.

                                             2
       Agent Clevenger got back on the bus and asked all the passengers to claim their

luggage. After this process, one of the two bags to which the dog had alerted remained

unclaimed. The bus driver declared the bag abandoned and Agent Clevenger opened it,

discovering three bundles of marijuana inside. The claim ticket on the bag revealed that

it had been loaded onto the bus in Laredo where, the passenger manifest revealed,

Ventura was one of only two people who had boarded. Ventura consented to being

searched and Agent Clevenger found the matching claim ticket to the offending bag in

Ventura’s shoe.1 The drug possession charges underlying this case followed.

       Ventura moved to suppress the drug evidence on the grounds that the drug

evidence against him was the fruit of an illegally extended seizure. The district court

granted Ventura’s motion and the Government appeals.

                                            II.

       When analyzing a ruling on a motion to suppress, this court reviews questions of

law de novo and findings of fact for clear error. United States v. Portillo-Aguirre, 311

F.3d 647, 651-52 (5th Cir. 2002). In our review, we must view the evidence in the light

most favorable to Ventura, as the party that prevailed below. United States v. Ellis, 330

F.3d 677, 679 (5th Cir. 2003).

                                            III.

       In United States v. Martinez-Fuerte, 428 U.S. 543, 96 S. Ct. 3074 (1976), the


       1
        The second bag was claimed by Ventura. That bag was searched later, after
Ventura’s arrest, and no drugs were found inside.

                                             3
Supreme Court upheld the constitutionality of immigration checkpoints at which

government agents stop travelers without individualized suspicion for questioning about

immigration status. We have recognized that the scope of such immigration checkpoint

stops “is limited to the justifying, programmatic purpose of the stop: determining the

citizenship status of persons passing through the checkpoint.” United States v. Machuca-

Barrera, 261 F.3d 425, 433 (5th Cir. 2001). “The permissible duration of an immigrant

checkpoint stop is therefore the time reasonably necessary to determine the citizenship

status of the persons stopped.” Id. This includes the time necessary 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.

       If the initial, routine questioning generates reasonable suspicion of other criminal

activity, the stop may be lengthened to accommodate its new justification. Id. at 434.

Thus, an agent at an immigration stop may investigate non-immigration matters beyond

the permissible length of the immigration stop if the initial lawful stop creates a

reasonable suspicion warranting further investigation. Id. Accordingly, illegal drug

interdiction may be carried out at immigration checkpoints, though not as the primary

purpose of those checkpoints. Id. at 431. In this vein, we have recognized that the use of

drug-sniffing dogs at immigration stops is permissible so long as such use does not

lengthen the stop beyond the time necessary to verify the immigration status of a

vehicle’s passengers. United States v. Garcia-Garcia, 319 F.3d 726, 730 (5th Cir.

                                              4
2003).

                                             IV.

         While Ventura does not challenge the legality of the initial immigration stop, he

argues that the agent violated his Fourth Amendment rights by extending the detention to

conduct a search for drugs, after the lawful immigration purpose of the stop had

terminated. Ventura contends that the legitimate immigration purpose of the checkpoint

stop ended when Agent Clevenger, satisfied that all visible passengers aboard the bus

were lawfully present in the country, exited the passenger compartment; and thus,

Ventura was unlawfully detained without reasonable suspicion, probable cause, or

consent, while the exterior luggage bins were inspected.

         The Government responds that since agents routinely ran a trained canine through

the exterior luggage compartment to detect any concealed persons, this action did not

unlawfully extend the stop. The Government argues that, because detection and

interdiction of concealed, undocumented aliens is just as much a part of the immigration

inspection as questioning the visible passengers on a bus, the immigration purpose of the

stop had not yet been completed at the time the dog alerted to luggage in the exterior bin.

         The general question then is whether the Border Patrol agent unlawfully extended

the immigration checkpoint stop beyond its permissible duration. Our inquiry as to the

constitutionality of the stop’s duration considers only Agent Clevenger’s actions up to the

point at which Ventura consented to a search of his person, as after the defendant

consents, the agent needs no justification to prolong the encounter. Machuca-Barrera,

                                              5
261 F.3d at 435. Ventura characterizes this inquiry as factual, relying on our decision in

United States v. Chacon, 330 F.3d 323 (5th Cir. 2003). We disagree.

       Chacon was remanded because the district court had not made an explicit factual

finding as to whether the agent had completed his immigration inspection at the time

further questioning aimed at drugs occurred. Id. at 329. However, in Chacon all of the

actions of the agent in question took place in the passenger compartment of the

commercial bus on which Chacon was riding. Id. at 325. Another agent was

contemporaneously conducting the exterior luggage bin inspection. Id. Thus, the

subjective inquiry as to when the top side agent was satisfied that the compartment

contained only legal travelers was important to the determination of whether he switched

his focus to drug interdiction after his immigration purposes were complete. Here, it is

undisputed that Agent Clevenger had satisfied himself that the visible passengers riding

on the top side of the bus were lawfully present in the United States but, absent a partner,

he went on to inspect the exterior luggage bins himself.

       We believe the inquiry in this case is broader, considering whether Agent

Clevenger’s general method of inspection passes constitutional muster. The legal

question presented is whether an agent’s satisfaction with the status of the visible

passengers of a bus concludes the permissible scope of a checkpoint stop; or, in other

words, whether the sweep for persons hidden in the exterior luggage compartment of a

commercial bus is within the programmatic purpose of a Border Patrol checkpoint and

concomitant immigration inspection.

                                             6
                                             V.

       The Supreme Court has recognized that the principal problem with illegal

immigration arises from surreptitious entries. Martinez-Fuerte, 428 U.S. at 552, 96 S. Ct.

at 3080. Martinez-Fuerte specifically identified the smuggling of hidden aliens as a

legitimate concern justifying the existence of fixed immigration checkpoints. Id. at 552,

556-57. The Sentencing Commission has specified such conduct as deserving of a

sentence enhancement for reckless endangerment. U.S. SENTENCING GUIDELINES

MANUAL § 2L1.1, cmt. n.6 (2005).

       Policy considerations notwithstanding, Ventura asserts that, because the Supreme

Court in Martinez-Fuerte stated that “the inspection of a vehicle is limited to what can be

seen without a search” (429 U.S. at 558, 96 S. Ct. at 3083), the scope of a suspicionless

immigration check is limited to the visible passengers in the bus. Ventura apparently

concludes that, since the exterior luggage compartments are not readily visible, any

inspection of those compartments is ancillary to the top side immigration check and must

be completed before the quiz of the visible passengers is finished to avoid prolonging the

detention. If the law were otherwise, Ventura asserts, the Border Patrol would be able to

search every trunk and compartment in every vehicle that passed through the checkpoint,

even if there were no reasonable suspicion that the travelers were engaged in illegal

activity and no question as to their immigration status.

       The district court recognized that Ventura’s argument, carried to its logical

conclusion,

                                             7
       would mean that a Border Patrol agent could never look in a bus restroom
       or in its baggage compartment. Such a restriction would seriously impair
       the efficacy of permanent checkpoint stops: if an illegal alien could escape
       detection by merely hiding in the bathroom, between the seats, or in a
       luggage bin, the inspection would be a mere farce.

The district court, while conceding its flaws, nonetheless appears to have been swayed by

Ventura’s “simultaneous with passenger quiz or not at all” rule for exterior luggage

compartment sweeps, finding that the immigration-related purpose of the stop terminated

when the passenger questioning was complete. We agree with the Government that

Ventura’s argument, and the result adopted by the district court, constitutes an incorrectly

narrow view of the programmatic purpose of fixed immigration checkpoints and ignores

the distinctions between private and commercial inspections.

                                             VI.

       As we have recognized, “[p]assengers traveling on a commercial bus receive the

same degree of constitutional protection and are subject to the same legitimate intrusions

on their Fourth Amendment interests as those in private vehicles.” Portillo-Aguirre, 311

F.3d at 652 (citing Florida v. Bostick, 501 U.S. 429, 438, 111 S. Ct. 2382 (1991)).

However, the practical and legal realities of inspecting a commercial bus differ from

inspections of private vehicles.

       First, the sheer mechanics of immigration inspections of commercial buses and

private vehicles are different. At the Interstate 35 checkpoint, as at most similar

immigration checkpoints, all commercial buses are sent to a special lane for inspection,

where an agent actually boards the vehicle and walks down the center aisle, observing all

                                              8
open spaces and talking to passengers along the way. It is not practical to literally apply

the Martinez-Fuerte restriction on inspection to what and who agents can see and

question while standing on the pavement.

       More importantly to this case, Martinez-Fuerte’s limitation of suspicionless

checkpoint inspections to visible spaces was premised on the privacy expectations of

private motorists in their vehicles. 428 U.S. at 558-60, 96 S.Ct. at 3083. Consistent with

this limitation, Agent Clevenger testified that the Border Patrol does not open and search

the luggage compartments of passenger cars unless there is reasonable suspicion to do so.

Ventura had no reasonable expectation of privacy in the exterior luggage compartment of

a commercial bus, and therefore no standing to contest the actual inspection of that

compartment, to which the bus operator consented. See United States v. Hernandez-

Zuniga, 215 F. 3d 483, 487 (5th Cir. 2000) (recognizing that consent to search and

seizure by controlling third party applies to immigration inspections of commercial

buses). Ventura’s individual bag, in which he maintained an expectation of privacy at the

time it was placed in the luggage bin, was not searched until the bag was determined to be

abandoned. See United States v. Castro, 129 F.3d 752, 758 (5th Cir. 1997)(citing United

States v. Seals, 987 F.2d 1102, 1106 (5th Cir. 1993) (recognizing that a dog sniff is not a

search within the meaning of the Fourth Amendment).

       We have acknowledged and impliedly approved the routine sweep of commercial

bus restrooms during immigration checkpoint stops as falling within the programmatic

purpose of such stops. See, e.g., Portillo-Aguirre, 311 F.3d at 650 (noting that the

                                             9
agent’s immigration inspection “included checking the bathroom at the back of the bus

for illegal aliens or narcotics”); Chacon, 330 F.3d at 323 (same). We perceive no

constitutional violation in the routine brief inspections of a bus’s restrooms and

undercarriage luggage bins for concealed aliens, so long as such sweeps do not unduly

prolong the checkpoint stop. To hold otherwise would encourage illegal aliens and alien

smugglers to conceal themselves and others in luggage, luggage compartments, engine

compartments, and other unsafe places in commercial buses in an effort to circumvent the

checkpoint inspection.

                                            VII.

       For the reasons we have stated above, immigration checkpoint agents are entitled

to sweep the restrooms and exterior luggage compartments of commercial buses so long

as (1) during the time frame those checks are conducted, the primary purpose remains

interdiction of illegal immigrants, and (2) the checks do not unreasonably prolong the

duration of the stop. Here, nothing about Agent Clevenger’s actions evinces a shift in the

primary purpose of the stop from enforcing immigration laws to drug interdiction up until

the time individualized suspicion arose. Agent Clevenger testified that his primary

purpose for getting off the bus and checking the luggage bins was the interdiction of

illegal immigration. He explained to the district court that he had found undocumented

aliens concealed in such luggage compartments, as well as inside of boxes and suitcases

on “many” prior occasions and that his canine was specifically trained to detect “[h]idden

people, first and foremost.” That Agent Clevenger and his dog were able to detect drugs

                                             10
simultaneously with concealed persons does not offend Martinez-Fuerte. Garcia-Garcia,

319 F.3d at 730; Portillo-Aguirre, 311 F.3d at 649. Once the dog alerted, Agent

Clevenger had sufficient reasonable suspicion to permit him to prolong the stop to

explore further the potential source of the dog’s alert. Garcia-Garcia, 319 F.3d at 730.

       Since we have determined that the permissible duration of the stop was the amount

of time reasonably necessary for agents to question the visible passengers and conduct

brief checks of the bus’s restrooms and undercarriage luggage bins, the final

consideration is whether Agent Clevenger’s lone conduct of all of these inspection

components unreasonably extended the stop. We believe that it did not.

       We have recognized that how an inspection is comported, i.e. the sequential steps

taken by an agent or agents when conducting same, may bear on whether the permissible

duration of an immigration stop has been exceeded. Garcia-Garcia, 319 F.3d at 730.

However, we have declined to establish a set script of immigration questioning to which

agents must adhere by rote, recognizing that, generally, it is the length of the detention,

not the questions asked, that makes a specific stop unreasonable. Chacon, 330 F.3d at

327, 328; Garcia-Garcia, 319 F.3d at 729; Machuca-Barrera, 261 F.3d at 433-34.

       We are likewise reluctant to impose an inflexible sequence of actions that all

agents must follow in performing immigration inspections of commercial buses. Given

the gravity of its mandate, we are loath to dictate to the Border Patrol how to deploy its

limited resources and accomplish its legitimate mission. Circumstances vary and agents

must retain the flexibility to perform their statutory duties effectively, so long as they do

                                              11
so within constitutional parameters.

       That Ventura’s bus happened to arrive at the moment a shift change occurred, such

that one agent consecutively (rather than two agents concurrently) conducted the upper

and lower compartment inspections, does not change the programmatic, and therefore

legal, nature of the stop. There is no evidence that a single agent performing the

inspections of both levels unduly prolonged the detention of the bus. The chain of events

leading to the canine alert, which in total lasted only a few minutes, lasted no longer than

necessary to fulfill the stop’s immigration-related purposes and, thus, the detention did

not violate the Fourth Amendment.

                                       VIII. Conclusion

       The Fourth Amendment and the case law of the Supreme Court and this circuit

permit Border Patrol Agents at fixed checkpoints to take the reasonable time necessary to

determine the number and citizenship of the individuals passing through the checkpoint.

The immigration purpose of such checkpoints is not necessarily complete when an agent

becomes satisfied as to the immigration status of the visible occupants of a commercial

bus’s passenger compartment. Agents are entitled to briefly check for concealed persons

in the bus’s other common areas, including the restrooms and undercarriage luggage bins,

so long as the concomitant detention of the bus and its passengers is brief and reasonable.

       Up to the time the canine alerted, at which time reasonable suspicion to extend the

stop to look for drugs arose, Agent Clevenger’s actions neither strayed from the

programmatic purpose of the stop — interdiction of illegal immigrants — nor unduly

                                             12
prolonged it. Accordingly, the checkpoint detention of Ventura and his fellow passengers

did not exceed its permissible duration. Because the drug evidence against Ventura was

not the fruit of an illegally extended seizure, the district court wrongly granted the motion

to suppress.

REVERSED AND REMANDED




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