     Case: 18-40347   Document: 00514965678        Page: 1   Date Filed: 05/21/2019




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

                                                                        FILED
                                    No. 18-40347                      May 21, 2019
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

             Plaintiff - Appellee

v.

RAFAEL TELLO,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before STEWART, Chief Judge, and DAVIS and ELROD, Circuit Judges.
CARL E. STEWART, Chief Judge:
      A federal grand jury returned a three-count indictment charging Rafael
Tello with transporting an illegal alien within the United States by means of
a motor vehicle. At an immigration checkpoint, the aliens were found hidden
in a storage compartment in the sleeper area of the tractor-trailer that Tello
was driving. The case proceeded to trial on the first two counts. Midway
through the trial, after the two Border Patrol agents had testified, Tello moved
to suppress the evidence found during the immigration-checkpoint stop. The
district court denied the motion and the jury found Tello guilty of both counts.
Tello was sentenced to concurrent terms of 27 months of imprisonment and
two years of supervised release. For the reasons below, we AFFIRM.
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                                  No. 18-40347
                                           I.
      Shortly before 1:00 a.m. on August 1, 2017, a tractor-trailer entered the
primary inspection lane at the U.S. Border Patrol checkpoint south of
Falfurrias, Texas. Agent Villanueva was on duty in the primary inspection
lane. A Border Patrol service canine and its handler were working with him.
      Tello was driving the tractor-trailer. Agent Villanueva’s first question
was: “[A]re you a citizen – are you a United States citizen?” He replied that he
was a naturalized citizen. Agent Villanueva was satisfied with this answer so
he did not ask for proof of citizenship.
      Agent Villanueva next asked Tello what he was hauling in the trailer.
He asked this question to give the Border Patrol service canine more time to
conduct a canine sniff of the tractor-trailer:
      Because at that point, kind of I looked – because usually when I
      start [questioning], I also keep in mind that I have the K9 handler
      working with me; because sometimes, you know, the vehicles
      coming up to our inspection, and the dog might be alerting right
      away, but – and sometimes, we question these occupants. And we
      might be doing a simple question, so we might relieve the vehicle
      right away. But at this time, the K9 [handler] kind of glanced over
      at me, you know, give me a little bit more time. So that’s kind of
      why I questioned a little bit more.

Tello answered that he was hauling carrots and handed the agent a bill of
lading. Agent Villanueva asked him whether he had made any stops after
loading the carrots in the trailer. Tello answered that he was coming from
Pharr, Texas and had not made any stops. Agent Villanueva testified that Tello
did not appear to be nervous and there was no indication that he was hiding
anything.
      The canine handler told Agent Villanueva that he needed to send the
tractor-trailer to the secondary inspection area. The agent then asked Tello for



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                                       No. 18-40347
consent to search and backscatter (x-ray) the tractor-trailer, and he agreed.
This happened about 30 seconds into the checkpoint stop.
       In the secondary inspection area, another agent (Agent Reyes) boarded
the tractor-trailer to conduct a physical inspection in advance of the
backscatter inspection, a routine precaution to minimize the risk of exposing
possible occupants to radiation. Under the bed in the sleeper area of the
tractor-trailer was a small hole through which Agent Reyes could see a person’s
torso. He unlatched the bed and found three persons hiding in the storage
compartment. These persons were citizens of Honduras who were illegally
present in the United States.
       On August 23, 2017, a federal grand jury returned a three-count
indictment charging Tello with transporting an illegal alien within the United
States by means of a motor vehicle in violation of 8 U.S.C. § 1324(a)(1)(A)(ii)
and (v)(II) and (B)(ii).
       On November 16, 2017, the case proceeded to a jury trial on the first two
counts. 1 During the one-day trial, the government presented Agents
Villanueva’s and Reyes’s testimony on the details of the immigration-
checkpoint inspection. Midway through the trial, after the agents testified,
Tello moved to suppress the evidence found during the immigration-checkpoint
stop. 2 Tello argued that the agents had impermissibly extended the
immigration-checkpoint stop beyond its legitimate, limited immigration
purpose before asking him for his consent to search the tractor-trailer.



       1The government moved to dismiss the third count in the indictment because the
alien was a juvenile when he was taken into custody.

       2 Motions to suppress evidence must be made before trial. Fed. R. Crim. P. 12(b)(3)(C).
A court can consider an untimely motion if the party shows good cause. See Fed. R. Crim. P.
12(c)(3). Tello does not specifically mention good cause, but defense counsel stated that he
was not aware until Agent Villanueva testified that when he completed his inspection at the
primary lane, Tello was detained to allow the dog to continue to search the vehicle.
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                                 No. 18-40347
      The district court denied the motion to suppress. The jury found Tello
guilty of both counts. On April 11, 2018, the district court sentenced him to
concurrent terms of 27 months’ imprisonment and two years’ supervised
release. Tello appeals the district court’s denial of his motion to suppress.
                                       II.
      In reviewing the denial of a motion to suppress, we review factual
findings for clear error and legal conclusions de novo. United States v.
Rodriguez, 702 F.3d 206, 208 (5th Cir. 2012). We review the evidence “in the
light most favorable to the prevailing party.” United States v. Wise, 877 F.3d
209, 215 (5th Cir. 2017) (citation omitted). We give particular deference to
findings where the court’s denial of the suppression motion was based on live
testimony because the judge had the opportunity to observe the witness’s
demeanor. United States v. Tovar, 719 F.3d 376, 384 (5th Cir. 2013); see also
United States v. Wright, 777 F.3d 769, 773 (5th Cir.) (same), cert. denied, 135
S. Ct. 2821 (2015).
                                       III.
      “The Fourth Amendment protects ‘[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures.’” District of Columbia v. Wesby, 138 S. Ct. 577, 585 (2018)
(brackets in original) (quoting U.S. Const. amend. IV). Ordinarily, a search or
seizure is unreasonable “in the absence of individualized suspicion of
wrongdoing.” City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) (citation
omitted). At a fixed checkpoint, however, which has as its primary purpose
identifying illegal immigrants, vehicles may be briefly detained in furtherance
of that purpose, and the occupants questioned, without either a warrant or any
individualized reasonable suspicion. United States v. Jaime, 473 F.3d 178, 181
(5th Cir. 2006). The permissible duration of the stop includes the time
necessary to inquire about citizenship status, ascertain the number and
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                                  No. 18-40347
identity of the vehicle’s occupants, request documentation, and seek consent to
extend the detention. United States v. Machuca-Barrera, 261 F.3d 425, 433
(5th Cir. 2001).
      We have avoided scrutinizing the questions a Border Patrol agent asks
at the checkpoint, instead focusing on the duration of the stop:
      We decline a protocol that measures the pertinence of questions to
      the immigration purpose by an after-the-fact standard for
      admissibility at trial. So long as a checkpoint is validly created,
      policing the duration of the stop is the most practical enforcing
      discipline of purpose. The key is the rule that a stop may not exceed
      its permissible duration unless the officer has reasonable
      suspicion. We deploy a test that is both workable and which
      reinforces our resistance to parsing the relevance of particular
      questions. To scrutinize too closely a set of questions asked by a
      Border Patrol agent would engage judges in an enterprise for
      which they are ill-equipped and would court inquiry into the
      subjective purpose of the officer asking the questions.


Id. at 434 (footnote omitted); see also Jaime, 473 F.3d at 183 (“[I]t is the length
of the detention, not the questions asked, that makes a specific stop
unreasonable.”) (citation omitted); United States v. Castille, 478 F. App’x 868,
869 (5th Cir. 2012) (per curiam) (unpublished) (“The scope and duration of the
immigration checkpoint stop remained valid even though [the agent] had
concluded that both [defendants] were United States citizens before he asked
for consent to search.”).
      Border Patrol agents may conduct a canine sniff to search for drugs or
concealed aliens at immigration checkpoints so long as the sniff does not
lengthen the stop beyond the time necessary to verify the immigration status
of a vehicle’s passengers. United States v. Ventura, 447 F.3d 375, 378 (5th Cir.
2006). The critical question is not whether the canine sniff occurs before or
after the purpose of the stop is completed, but whether conducting the sniff


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                                 No. 18-40347
prolongs the purpose of the stop. Rodriguez v. United States, 135 S. Ct. 1609,
1616 (2015).
      Tello avers that the immigration-inspection purpose of the checkpoint
stop was completed when Agent Villanueva received the answer that Tello is a
United States citizen and was satisfied by that answer. He argues that, as the
agent admitted at trial, the questions about what he was hauling in his trailer
and whether he had any stops after loading the trailer were unrelated to his
citizenship. Rather, the agent’s purpose in asking the questions was to give the
Border Patrol service canine more time to conduct a canine sniff of the tractor-
trailer to look for violations of immigration law, which Tello maintains
extended the stop beyond its permissible scope and made it unconstitutional.
      Viewing the evidence in the light most favorable to the government,
Wise, 877 F.3d at 215, we find that the canine sniff here did not prolong the
immigration stop. Tello does not dispute that the stop lasted approximately 30
seconds. Agent Villanueva asked Tello about his citizenship, cargo, and travel,
all of which are permissible questions. As we have stated, “questions about
travel including origin and destination would be commonplace for an agent to
ask during an immigration inspection.” United States v. Alvarez, 750 F. App’x
311, 313 (5th Cir. 2018) (per curiam) (unpublished).
      When Agent Villanueva started questioning Tello about his citizenship,
the canine and its handler were already circling the tractor-trailer. Therefore,
Agent Villanueva’s questioning occurred simultaneously with the canine sniff.
At most, mere seconds elapsed before the dog alerted and Tello consented to a
search. See United States v. McMillon, 657 F. App’x 326, 330 (5th Cir. 2016)
(per curiam) (unpublished) (noting that if an agent requests consent to extend
the duration of a checkpoint stop, or if probable cause arises, then the stop’s
countable duration is measured only up until the time of consent or probable
cause).
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                                      No. 18-40347
       Moreover, the duration of the stop was significantly less than or
comparable to the time frames we have found acceptable for immigration stops.
See Machuca-Barrera, 261 F.3d at 435 (holding that questions that “took no
more than a couple of minutes” were “within the permissible duration of an
immigration checkpoint stop”); McMillon, 657 F. App’x at 331 (“A checkpoint
stop lasting approximately thirty to forty seconds to allow border patrol agents
to ask citizenship and travel questions and to request consent for a search is of
a sufficiently limited duration under our precedent.”). 3 However, Tello
criticizes the length-based approach to judging the permissible duration of a
stop created by Machuca-Barrera and avows that it cannot survive Rodriguez.
       Tello’s argument overextends Rodriguez. Rodriguez involved a traffic
stop. 135 S. Ct. at 1612. The officer checked the defendant’s license and
registration, the passenger’s license, and ran a records check on them. Id. at
1613. The officer then called for a second officer and issued a warning ticket.
Id. Although “all the reason[s] for the stop” were “out of the way,” the
defendant was not “free to leave” and refused to allow the officer to walk his
dog around the SUV. Id. at 1613 (brackets in original). When the second officer
arrived, the original officer retrieved his dog who alerted. Id. Approximately




       3 See also United States v. Hipolito-Ramirez, 657 F. App’x 271, 272–73 (5th Cir. 2016)
(per curiam) (unpublished) (rejecting argument that one minute between investigation of
immigration status and consent to search suitcase was unreasonable); Castille, 478 F. App’x
at 869 (noting that where agent spent 30 seconds asking each defendant about his citizenship
status and for consent to search, stop “lasted no longer than necessary to fulfill its
immigration-related purpose”) (citation omitted); United States v. Hinojosa-Echavarria, 250
F. App’x 109, 113 (5th Cir. 2007) (per curiam) (unpublished) (observing that one-to-one and
one-half minute stop was within the time approved in Machuca-Barrera and did not exceed
the permissible duration); United States v. Reyes, 243 F. App’x 858, 859 (5th Cir. 2007) (per
curiam) (unpublished) (finding that two to three minute inspection was a “brief time” within
the “permissible duration”); Jaime, 473 F.3d at 185 (holding that duration of detention from
first question asked until defendant gave consent to search her bag was less than half a
minute and was not excessive).

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                                  No. 18-40347
seven or eight minutes had elapsed since the officer had issued the warning
ticket. Id. A search “revealed a large bag of methamphetamine.” Id. The overall
duration of the stop was 29 minutes. Id. at 1617 (Thomas, J., dissenting).
      The defendant moved to suppress the evidence and the magistrate judge
found that, because the post-warning detention and search were not supported
by reasonable suspicion, a Fourth Amendment violation had occurred. Id. at
1613. However, the magistrate judge concluded that, consistent with Eighth
Circuit precedent, the wait was a de minimis intrusion. Id. Adopting the
magistrate judge’s factual findings and legal conclusions, the district court
denied the motion, and the Eighth Circuit affirmed. Id. at 1613–14. The
Supreme Court granted certiorari on the question of “whether police routinely
may extend an otherwise-completed traffic stop, absent reasonable suspicion,
to conduct a dog sniff.” Id. at 1614.
      The Supreme Court reversed, holding that authority for the traffic stop
ends “when tasks tied to the traffic infraction are—or reasonably should have
been—completed.” Id. In addition to determining whether to issue a traffic
ticket, an officer “may conduct certain unrelated checks during an otherwise
lawful traffic stop,” but not in a way that “measurably extend[s] the duration
of the stop.” Id. at 1615 (citation omitted). These inquiries, such as checking a
driver’s license, registration, and insurance and determining whether there
are outstanding warrants, further the purpose of the traffic laws and ensure
“that vehicles on the road are operated safely and responsibly.” Id.
      Tello   argues   that   Rodriguez prohibits    officers   at   immigration
checkpoints from asking anything other than a brief question or two directly
about citizenship and for supporting documentation. However, the Supreme
Court recognized in Martinez-Fuerte that an immigration stop may take up to
five minutes, and the intrusion, which can include referral to secondary
inspection, “is sufficiently minimal that no particularized reason need exist to
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                                   No. 18-40347
justify it.” 428 U.S. at 563. “Border Patrol officers must have wide discretion
in selecting the motorists to be diverted for the brief questioning involved,” id.
at 563–64, and “incidents of checkpoint operation also must be committed to
the discretion of such officials.” Id. at 559 n.13.
      Rodriguez does not change this law. Notably, Rodriguez dealt with a
traffic stop; this is an immigration stop where canine sniffs are more relevant
to the purpose of the stop. Cf. Rodriguez, 135 S. Ct. at 1615 (“[A] dog sniff is
not fairly characterized as part of the officer’s traffic mission.”). Rodriguez also
does not dictate a script that agents must follow. Rather, Rodriguez simply
allows for stops of a “tolerable duration”—a duration that is circumscribed by
the reason for the stop. Id. at 1614. The Supreme Court cautioned against
investigation into other possible crimes which add time to the stop and can
make the continued seizure unconstitutional. Id. at 1615–16.
      There is no evidence in this case that the canine was looking for drugs or
other possible crimes. Agent Villanueva testified that the handler and canine
were conducting an immigration inspection. Agent Villanueva agreed that he
“wanted to make sure that the dog had time to finish its inspection of the
vehicle” and that it “probably takes a little more time for a Border Patrol K9
to sniff a tractor-trailer than a four-door sedan.” The canine handler noted he
was trying to determine whether “there’s an immigration violation, even
something going on in a vehicle that you can’t see, because someone’s hidden
somewhere[.]” This type of checkpoint operation, lasting approximately 30
seconds, is reasonable and fits squarely within the officials’ discretion and case
law. See Martinez-Fuerte, 428 U.S. at 557 (“While the need to make routine
checkpoint stops is great, the consequent intrusion on Fourth Amendment
interests is quite limited.”).
      Tello makes a secondary argument: his consent did not dissipate the
taint of the prior constitutional violation. Because we find that the stop was
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                                 No. 18-40347
constitutionally permissible, we are not obligated to reach the consent issue.
See United States v. Brigham, 382 F.3d 500, 512 (5th Cir. 2004) (en banc)
(“Absent a Fourth Amendment violation, [the defendant’s] consent to search
the vehicle was not unconstitutionally tainted.”). Nevertheless, we note that
Tello gave valid consent.
      Consent given after an unconstitutional detention is analyzed under a
two-pronged inquiry: “(1) whether the consent was freely and voluntarily
given; and (2) whether the consent was an independent act of free will.” United
States v. Macias, 658 F.3d 509, 522 (5th Cir. 2011). As previously discussed,
Agent Villanueva did not unreasonably seize Tello. Agent Villanueva was not
holding any of Tello’s documents, and “[t]he record provides no basis for finding
that he did not voluntarily answer the officers’ questions and consent to their
requests.” Wise, 877 F.3d at 222. As such, the validity of Tello’s consent is
without doubt.
                                      IV.
      The district court’s judgment is AFFIRMED.




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