     Case: 14-40873      Document: 00513017864         Page: 1    Date Filed: 04/23/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40873                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            April 23, 2015
UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee

v.

IRENE YVETTE MOLINA,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:14-CR-150


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       Irene Yvette Molina was arrested at a border patrol checkpoint after she
was found with a package of heroin taped to her midsection. Molina was
traveling on a commercial bus from Mexico to the United States when the bus
was stopped for a routine immigration inspection in Falfurrias, Texas. One of
the agents noticed that Molina would not make eye contact and that she was



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40873
hunched over and grabbing her waist. He questioned her to confirm she was
an American citizen, then asked her to unzip her jacket all the way and lean
forward. When she complied, he noticed something protruding from Molina’s
back and asked Molina to step off the bus. Molina consented to a pat down,
which revealed a hard object on her back. A female agent was then called to
perform a more thorough search. She arrived about seventeen minutes later
and performed the search that resulted in discovery of the heroin. Molina was
arrested.
      Molina filed a motion to suppress evidence on two grounds: (1) the border
patrol agent lacked reasonable suspicion or consent before he requested that
Molina lean forward, an act that made the object protruding from Molina’s
back apparent; and (2) the detention exceeded its permissible length. After a
hearing in which two of the agents testified, the district court denied the
motion. Molina now appeals.
      In reviewing a district court’s denial of a motion to suppress, this court
reviews questions of law de novo and factual findings for clear error, viewed in
the light most favorable to the prevailing party, in this case the United States.
United States v. Portillo-Aguirre, 311 F.3d 647 (5th Cir. 2002); United States
v. Solis, 299 F.3d 420, 435 (5th Cir. 2002). “The voluntariness of consent is a
question of fact to be determined from a totality of the circumstances.” Solis,
299 F.3d at 436. When the underlying facts are undisputed, this court “may
resolve questions such as probable cause and reasonable suspicion as questions
of law.” Portillo-Aguirre, 311 F.3d at 652 (citation omitted).
      The Supreme Court has recognized the constitutionality of stops for
questioning at border patrol checkpoints. United States v. Martinez-Fuerte,
428 U.S. 543 (1976). The purpose of those stops must be to enforce immigration
laws, so unrelated searches or extended detention must be based on consent or
probable cause. Id.; United States v. Machuca-Barrera, 261 F.3d 425, 431 (5th
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                                 No. 14-40873
Cir. 2001) (“The scope of an immigration checkpoint stop is limited to the
justifying, programmatic purpose of the stop: determining the citizenship
status of persons passing through the checkpoint.”).
      It is within this Fourth Amendment framework that we consider
whether Molina was subjected to an unconstitutional search. Molina first
argues that the border patrol agent lacked reasonable suspicion or consent
before he “command[ed]” her to lean over and then visually inspected her. A
review of the record reveals that the district court did not clearly err when it
found that “Defendant consented to a search when she agreed to unzip her
jacket and to lean forward.” ROA 42. The district court heard testimony from
both Agent Tista, who first saw Molina on the bus, and Agent Jackson, the
female agent who searched Molina.          On direct examination, Agent Tista
explained that he “told her if she would mind unzipping her jacket,” and when
she only unzipped it two or three inches, he again “asked her if she would mind
unzipping it all the way so [he] could see her waist.” ROA 100, 102. On cross
examination, Agent Tista confirmed that Molina gave consent, unzipped her
jacket, and when he asked Molina to lean forward, she did, which revealed a
“protrusion” on her back. ROA 114. He then asked Molina to step off the bus.
      The district court did not clearly err in crediting Agent Tista’s testimony
and concluding that Molina consented to unzipping her jacket and leaning
forward when she was asked. See Solis, 299 F.3d at 436 (“Where the judge
bases a finding of consent on the oral testimony at a suppression hearing, the
clearly erroneous standard is particularly strong since the judge had the
opportunity to observe the demeanor of the witnesses.” (citations omitted)).
      Molina also argues that the district court erred when it found that “any
questioning that may have occurred beyond the permissible length of the
immigration stop was lawful,” because it was supported by “reasonable
suspicion of other criminal activity warranting further investigation.” ROA
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                                  No. 14-40873
43. Molina contends that the search should have been over after Agent Tista
ascertained that she was a citizen but that it was unlawfully prolonged when
he asked her to unzip her jacket and lean forward, and then asked her to step
off the bus for a pat down. Additionally, it took seventeen minutes for the
female officer to arrive to perform a more thorough search. All of this, Molina
argues, was impermissible and unsupported by reasonable suspicion or any
individualized suspicion of wrongdoing.
      Although the permissible duration of an immigration checkpoint stop is
the brief “time reasonably necessary to determine the citizenship status of the
persons stopped,” a border patrol agent may “extend a stop based upon
sufficient individualized suspicion.” Machuca-Barrera, 261 F.3d at 433–34.
Both the length of the detention and the time necessary to request consent to
extend the detention are included in the permissible duration of the stop, and
it is therefore “necessarily irrelevant” whether the non-immigration questions
come before or after the immigration questions. United States v. Jaime, 473
F.3d 178, 185 (5th Cir. 2006).
      We agree with the district court that “Agent Tista’s testimony clearly
established the reasonable suspicion necessary to question Defendant about
non-immigration matters beyond the permissible length of the immigration
stop.” ROA 43. Agent Tista noticed Molina avoiding eye contact before he
began questioning her, he observed her “hunched over and grabbing her waist,”
and also saw a “bulge” on her stomach, all of which combined to generate
reasonable suspicion that she possessed contraband.         And once the agent
conducted the consent patdown and was able to feel the contraband, he had
additional suspicion to justify the time it took for the female agent to arrive.
      Based on the record and our standard of review, the district court did not
err when it held that the search of Molina was lawful. Accordingly, the district
court’s denial of Molina’s motion to suppress is AFFIRMED.
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