     Case: 18-40441      Document: 00515069382         Page: 1    Date Filed: 08/08/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 18-40441                  United States Court of Appeals
                                                                             Fifth Circuit

                                                                           FILED
                                                                      August 8, 2019
UNITED STATES OF AMERICA,
                                                                      Lyle W. Cayce
              Plaintiff - Appellee                                         Clerk


v.

MIGUEL ANGEL VEGA-TORRES,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:17-CR-355-1


Before HAYNES, GRAVES, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Miguel Angel Vega-Torres moved to suppress evidence discovered during
an immigration inspection. The district court denied the motion, and Vega-
Torres now challenges the district court’s order. Vega-Torres argues that the
district court reversibly erred in denying his motion because: (1) the agent at
the immigration checkpoint stop exceeded the limited citizenship purpose of
the stop and unconstitutionally prolonged his detention in violation of the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-40441
Fourth Amendment, and (2) Vega-Torres’s subsequent consent to search was
not sufficiently attenuated from the constitutional violation. We disagree.
                                       I.
      On May 26, 2017, Vega-Torres was a passenger on a commercial bus
stopped at a border patrol checkpoint in Falfurrias, Texas. Border Patrol
Agent David Gonzalez boarded the bus to conduct an immigration inspection.
Normally, according to Agent Gonzalez’s testimony at the suppression hearing,
an immigration inspection takes 90 seconds for each passenger. However,
Agent Gonzalez’s inspection of Vega-Torres took three to five minutes.
      Agent Gonzalez asked Vega-Torres for his citizenship documentation.
Vega-Torres, who was using his cell phone, handed Agent Gonzalez his Legal
Permanent Resident (“LPR”) card and then continued to use his cell phone.
Agent Gonzalez believed the LPR card was valid, but he had a difficult time
matching Vega-Torres’s face with the LPR card photo because Vega-Torres
only made brief eye contact between looking at Agent Gonzalez to answer
questions and using his cell phone. So, Agent Gonzalez, while holding the card,
extended his interview and asked Vega-Torres several questions to get Vega-
Torres to sustain eye contact with him.
      Agent Gonzalez asked Vega-Torres a series of questions because after
each response, Vega-Torres would immediately return to looking at his phone.
Agent Gonzalez asked Vega-Torres where he was from, and Vega-Torres
replied Brownsville, Texas. He asked him where he was heading, and Vega-
Torres replied San Antonio. He asked him what his purpose was for going to
San Antonio, and Vega-Torres replied that he was visiting family. When Agent
Gonzalez asked him what part of San Antonio he was heading to, he replied
San Antonio.     Based on Agent Gonzalez’s experience, people who are
attempting to illegally enter the country or smuggle drugs have been coached
to give certain answers, but they are unable to answer all the agent’s questions.
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                                 No. 18-40441
      After Agent Gonzalez completed his questions, he believed Vega-Torres
was “probably okay for immigration purposes,” but “believed something else
was off.” At the suppression hearing, Agent Gonzalez testified that he had
noticed a trend of smugglers wearing baggy shorts to conceal contraband on
the back of their thighs and that Vega-Torres was wearing baggy shorts
consistent with that trend. So, he asked Vega-Torres for consent to search him.
Vega-Torres consented to the search.
      Agent Gonzalez patted Vega-Torres’s thigh and felt a solid edge
consistent with a bundle of drugs. Agent Gonzalez observed that Vega-Torres
became “jittery” or “nervous.” Agent Gonzalez then asked Vega-Torres to step
off the bus for a more thorough search. During the search outside the bus,
Agent Gonzalez found four bundles of cocaine taped to Vega-Torres’s thighs.
      Vega-Torres was charged by indictment with one count of possession
with intent to distribute more than 500 grams of cocaine, in violation of 21
U.S.C. §§ 841(a)(1) & (b)(1)(B). Vega-Torres moved to suppress the evidence
obtained during the search. The district court denied the motion. First, the
district court found that, under the circumstances, the search did not exceed
the permissible scope of the immigration stop.       “Based on Vega-Torres’s
behavior, [Agent Gonzalez] persisted with appropriate questions and quickly
developed reasonable suspicion of criminal activity.” Second, the district court
found that, based on the totality of the evidence, the Government satisfied its
burden of demonstrating that Vega-Torres’s consent was voluntary.
      Vega-Torres then entered a conditional guilty plea, reserving the right
to appeal the district court’s denial of his suppression motion. The district
court sentenced Vega-Torres to, inter alia, 60 months’ imprisonment.
      Vega-Torres now timely appeals the district court’s order denying his
suppression motion.


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                                  No. 18-40441
                                        II.
      “When examining a district court’s ruling on a motion to suppress, we
review questions of law de novo and factual findings for clear error, viewing
the evidence in the light most favorable to the prevailing party.” United States
v. Ganzer, 922 F.3d 579, 583 (5th Cir. 2019) (quotation omitted). “We must
defer to the findings of historical fact made by the district court unless left with
the definite and firm conviction that a mistake has been committed.” United
States v. Freeman, 914 F.3d 337, 341 (5th Cir. 2019) (quotation omitted).
“While this court reviews the district court’s legal determination that the
historical facts provided reasonable suspicion de novo, ‘due weight’ must be
given to the ‘inferences drawn from those facts by resident judges and local law
enforcement officers.’” Id. at 341–42 (quoting Ornelas v. United States, 517
U.S. 690, 699 (1996)). “We will uphold a district court’s denial of a suppression
motion if there is any reasonable view of the evidence to support it.” Ganzer,
922 F.3d at 583 (quotation omitted).
                                        III.
      Vega-Torres argues that the district court reversibly erred in denying his
motion to suppress because: (1) Agent Gonzalez exceeded the permissible scope
of the immigration checkpoint stop and unconstitutionally prolonged Vega-
Torres’s detention, and (2) Vega-Torres’s consent to search was not sufficiently
attenuated from the unconstitutional extension of the immigration inspection.
                                        A.
      Relying heavily on Rodriguez v. United States, 135 S. Ct. 1609 (2015),
Vega-Torres argues that Agent Gonzalez’s interview was unconstitutional
because Agent Gonzalez failed to “expeditiously and diligently conduct the
interview to accomplish the programmatic immigration purpose of the stop.”
According to Vega-Torres, Agent Gonzalez should have simply asked, “Sir, can
you please look at me so that I can see your face,” because Agent Gonzalez only
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                                 No. 18-40441
needed to see Vega-Torres’s face to ensure that it matched the person in the
photo. Asking this one question, or a similar question, Vega-Torres argues,
would have satisfied the programmatic purpose of the stop of confirming
citizenship and would not have unconstitutionally prolonged his detention.
      Under     the   Fourth   Amendment,      “Border     Agents   may   conduct
‘suspicionless seizures of motorists’ for immigration checks at fixed Border
Patrol checkpoints.” United States v. Alvarez, 750 F. App’x 311, 313 (5th Cir.
2018) (per curiam) (quoting Indianapolis v. Edmond, 531 U.S. 32, 37 (2000)).
“To determine the lawfulness of a stop, we ask whether the seizure exceeded
its permissible duration.” United States v. Machuca-Barrera, 261 F.3d 425,
432 (5th Cir. 2001). The permissible duration of an immigration stop is “the
time reasonably necessary to determine the citizenship status of the persons
stopped.” Alvarez, 750 F. App’x at 313. “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. (quoting Machuca-Barrera, 261
F.3d at 433).
      We have found that an immigration stop, “which determined the
citizenship status of the travelers and lasted no more than a couple of minutes
before [the agent] requested and received consent to search, was
constitutional.” Machuca-Barrera, 261 F.3d at 435. “Within [the] brief window
of time in which a Border Patrol agent may conduct a checkpoint stop, . . . we
will not scrutinize the particular questions a Border Patrol agent chooses to
ask as long as in sum they generally relate to determining citizenship status.”
Id. at 433. “It is the length of the detention, not the questions asked, that
makes a specific stop unreasonable: the Fourth Amendment prohibits only
unreasonable seizures, not unreasonable questions, and law enforcement


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                                     No. 18-40441
officers are always free to question individuals if in doing so the questions do
not effect a seizure.” Id. at 432.
      “[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 and only if the initial, lawful stop creates reasonable
suspicion warranting further investigation.” Id.
      Accordingly, under Machuca-Barrera, Vega-Torres’s argument that
Agent Gonzalez unconstitutionally prolonged the detention fails. First, Agent
Gonzalez’s questions related to Vega-Torres’s citizenship status, and we will
not scrutinize the particular questions Agent Gonzalez asked. Second, the
length of Vega-Torres’s detention lasted no more than a couple of minutes
before Agent Gonzalez requested and received consent to search. Third, Agent
Gonzalez had reasonable suspicion to extend the stop based on Vega-Torres’s
behavior. Under this Circuit’s precedent in Machuca-Barrera, the district
court did not err.
      However, Vega-Torres argues that the permissible duration of the stop
is controlled by Rodriguez and that the stop extension was unconstitutional
because it went beyond the time that determining his citizenship reasonably
would have been completed had Agent Gonzalez asked a specific question
about seeing Vega-Torres’s face. We recently rejected a similar argument in
United States v. Tello, 924 F.3d 782, 789 (5th Cir. 2019) (rejecting defendant’s
argument that Rodriguez foreclosed the length-based approach in Machuca-
Barrera). “Rodriguez does not dictate a script that agents must follow.” Id.
      Accordingly, we do not find any error in the district court’s finding that
the length of the stop was reasonable, and that Agent Gonzalez did not
impermissibly extend the stop.
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                                  No. 18-40441
                                       B.
      Vega-Torres next argues that the evidence from the search should have
been suppressed because his consent to search was preceded by a
constitutional violation, and the consent was not sufficiently attenuated from
that violation. Because there was no unconstitutional detention, see Section
III.A., we need not reach the issue of consent. See Tello, 924 F.3d at 789 (citing
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.”)).
                                       IV.
      For the foregoing reasons, the district court’s judgment is AFFIRMED.




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