              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT


                             No. 00-50531



UNITED STATES OF AMERICA,
                                             Plaintiff-Appellee,

                                versus

MIGUEL MACHUCA-BARRERA, JR.,
                                             Defendant-Appellant.


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


                            August 2, 2001

Before HIGGINBOTHAM, DAVIS, and BENAVIDES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

     Border Patrol agents at an immigration checkpoint discovered

a large stash of marijuana in a car driven by defendant Miguel

Machuca-Barrera.   Machuca-Barrera was convicted of possession with

intent to distribute marijuana.     We hold that because the brief

stop by the Border Patrol lasted no longer than necessary to

fulfill its immigration-related purpose, the stop did not violate

the Fourth Amendment.    Further, because the prosecutor’s closing

argument did not go beyond reasonable inferences that could have

been drawn from the record, the prosecutor’s statements did not

deprive Machuca-Barrera of a fair trial.      We affirm.
                                         I

      On March 21, 1999, two teenage boys driving a Plymouth Laser

entered a permanent immigration checkpoint near Marfa, Texas.1                 It

was about 6:45 p.m. on a Sunday afternoon.                  Border Patrol Agent

Sean Patrick Holt questioned the pair about their travel plans and

citizenship.       Miguel Machuca-Barrera, 19, and Aldo Venegas-Muniz,

15, replied that they were U.S. citizens living in Pecos, Texas,

and that they were returning from a weekend trip to Ojinaga,

Mexico.

      At    this   point,   Agent    Holt    asked   them    whether   they   were

carrying any firearms or drugs.2               Machuca-Barrera replied no.

Agent Holt requested consent to search the car, which Machuca-

Barrera gave.        Agent Holt then referred them to the secondary

inspection area.         In the secondary inspection area, Agent Holt

ordered the boys to exit the car.             Border Patrol Agent Guadalupe

Trevino Jr. then led his drug-sniffing dog around the car.               The dog

alerted near the trunk of the car.

      With some difficulty, the agents were finally able to locate

drugs in the car.        The agents removed a large speaker box in the

rear of the car.          The box contained two holes, which had been


      1
          Marfa is a small town in west Texas about 60 miles north of the Mexican
border.
      2
        There was a factual dispute at the suppression hearing as to when Agent
Holt asked Machuca-Barrera and Venegas-Muniz about drugs. We recite the version
testified to by Machuca-Barrera. Although the district court did not make a
finding on this factual issue, it assumed for purposes of resolving the motion
to suppress that Machuca-Barrera’s account was accurate.

                                         2
covered by pieces of wood.        Inside the box were over 43 pounds of

marijuana.

     Machuca-Barrera was indicted for possession with intent to

distribute marijuana.3         Before trial, he moved to suppress the

drugs found, making essentially the same arguments now presented to

this court.       The district court denied the motion.

     At trial, Machuca-Barrera testified that he knew nothing of

the drugs in the car.        He testified that he had gone with Venegas-

Muniz to Ojinaga to party, because they could get alcohol more

easily in Mexico.       While in Ojinaga, however, the car was out of

his control several times: when he got a flat tire repaired, when

he got the speakers repaired, and when Venegas-Muniz borrowed it.4

     He also explained the condition of the speaker box.                  This

testimony was corroborated by his cousin Andres Machuca, who

testified that he and Machuca-Barrera had installed the speaker box

in the car, but their speaker system was designed to be sealed.

Since the only correct-size box available had holes in it, they

covered the holes to make the speakers sound better.

     In     his    closing   argument,     the   prosecutor    attacked   the

credibility of Andres Machuca:

     Andres admitted . . . that he hadn’t told anybody his story
     about the speaker box before today. Now, don’t you think that
     if your cousin . . . was in a bind that this Defendant is in


     3
         Venegas-Muniz was not prosecuted because he was a minor.
      4
        Prior to Machuca-Barrera’s trial, Venegas-Muniz was again arrested on
drug smuggling charges.

                                       3
     you would have brought that up before the day of trial? You
     wouldn’t have made it up after you heard what was testified to
     in the courtroom about the wooden blocks and come in here and
     sold it as truth—

At this point defense counsel objected, stating, “There’s no

evidence that he made it up after he heard.”               The district court

overruled the objection.

     Machuca-Barrera was found guilty by the jury, and sentenced to

30 months for the drug possession charge.             He appeals.



                                          II

     Machuca-Barrera’s          primary    argument   is   that   Agent   Holt’s

inquiry about drugs violated the Fourth Amendment because it was

not based on reasonable suspicion.



                                          A

     In United States v. Martinez-Fuerte5 the Supreme Court upheld

the constitutionality of immigration checkpoints at which INS

agents would stop travelers without suspicion for questioning about

immigration status.       The Court held that suspicionless “stops for

brief questioning routinely conducted at permanent checkpoints are

consistent with the Fourth Amendment.”6           It explicitly limited its

holding to stops and questioning to enforce the immigration laws;


     5
         428 U.S. 543 (1976).

     6
        Id. at 566. It also stated that referrals to secondary need not be
justified by individualized suspicion and may be based on factors, such as
ethnicity, that would generally be deemed impermissible. See id. at 563-64.

                                          4
searches or “further detention . . . must be based on consent or

probable       cause.”7     Thus,     the   Supreme   Court   created   a   narrow

exception to the general requirements of reasonable suspicion and

probable cause.8

      The Supreme Court was recently faced with suspicionless stops

at checkpoints created to interdict drugs. City of Indianapolis v.

Edmond9 held such checkpoints unconstitutional.10              The Court stated

that the validity of suspicionless stops at a checkpoint depends on

the “programmatic purpose” of the checkpoint.11               It pronounced, “We

have never approved a checkpoint program whose primary purpose was

to   detect      evidence      of   ordinary    criminal   wrongdoing.”12      The

government’s interest in intercepting illegal drugs, the Court

held, was indistinguishable from the government’s interest in

“ordinary crime control.”13           The special “problems of policing the




      7
           Id. at 567.

      8
        In the 25 years since Martinez-Fuerte, the Supreme Court has upheld
suspicionless stops at checkpoints on only one occasion. In Michigan Department
of State Police v. Sitz, 496 U.S. 444, 455 (1990), the Supreme Court upheld the
use of checkpoints to look for drunk drivers. The Court has elsewhere suggested
in dicta that checkpoints to inspect driver’s licences and vehicle registration
might be constitutional. See Delaware v. Prouse, 440 U.S. 648, 663 (1979).
      9
           531 U.S. 32 (2000).

      10
           See id. at 47-48.

      11
           See id. at 46.
      12
           Id. at 41.
      13
           Id. at 44.

                                            5
border”    for   illegal    immigrants     distinguished     the   checkpoints

approved in Martinez-Fuerte.14

      In short, checkpoints with the primary purpose of identifying

illegal immigrants are constitutional, and checkpoints with the

primary purpose of interdicting illegal drugs are not.               As we now

explain, this distinction is crucial to determining the lawful

scope and duration of detentions at immigration checkpoints.15               The

Supreme Court has not explained the constitutional boundaries of

individual stops at immigration checkpoints, however. We thus turn

to the law on the constitutional scope and duration of stops based

on reasonable suspicion for guidance.



                                       B

      In reviewing stops based on reasonable suspicion, the Supreme

Court and this court have long held that the justifying purpose of

a stop constrains its lawful extent.            As we have stated, “[t]he


      14
        Id. at 41. Thus, the Court struck down the use of checkpoints whose
primary purpose was drug interdiction, but emphasized that its holding in
Martinez-Fuerte was not affected. See id. at 47.
      15
         We note that the checkpoint at Marfa is an immigration checkpoint,
rather than a border checkpoint. See United States v. Jackson, 825 F.2d 853, 860
(5th Cir. 1987) (en banc) (holding that a checkpoint is the functional equivalent
of the border only when the government has proven to a “reasonable certainty that
the traffic passing through the checkpoint is international in character”; a
border checkpoint stops “no more than a negligible number of domestic
travelers.”) (internal quotation marks omitted). The government does not argue
that the Marfa checkpoint is a border checkpoint. Therefore, this case does not
implicate the broad powers of the federal government to conduct searches and
seizures of persons for immigration, drug interdiction, or other purposes at the
border or its functional equivalent. See United States v. Montoya de Hernandez,
473 U.S. 531, 537-38, 541-42 (1985); United States v. Ramsey, 431 U.S. 606, 616
(1977).

                                       6
Constitution [is] violated [ ] when the detention extend[s] beyond

the valid reason for the initial stop.”16             For example, in the

typical case of an automobile stop, a seizure is unjustified in the

absence of reasonable suspicion of unlawful activity.             Thus, when

an officer stops a person based on reasonable suspicion of some

crime, the officer may detain that person for only long enough to

investigate that crime.       Once the purpose justifying the stop has

been served, the detained person must be free to leave.17

      To determine the lawfulness of a stop, we ask whether the

seizure exceeded its permissible duration. We look to the scope of

the stop in order to determine its permissible duration.18                 The

permissible duration of the stop is limited to the time reasonably

necessary to complete a brief investigation of the matter within

the scope of the stop.19 The scope of a stop is limited to

investigation of matters justifying the stop.


      16
        United States v. Dortch, 199 F.3d 193, 198 (5th Cir. 1999), revised on
other grounds on denial of rehearing, 203 F.3d 883 (5th Cir. 2000); see also
Florida v. Royer, 460 U.S. 491, 500 (1983) (“an investigatory detention must be
temporary and last no longer than is necessary to effectuate the purpose of the
stop.”); United States v. Shabazz, 993 F.2d 431, 437 (5th Cir. 1993) (“We
recognize that a detention may be of excessively long duration even though the
officers have not completed and continue to pursue investigation of the matters
justifying [the stop].”).
      17
         See United States v. Jones, 234 F.3d 234, 241 (5th Cir. 2000); Dortch,
199 F.3d at 196.
      18
        See Dortch, 199 F.3d at 199 (refusing to “endorse police seizures that
are not limited to the scope of the officers’ reasonable suspicion and that
extend beyond a reasonable duration.”).
      19
        Our decisions have held that police violated the Fourth Amendment by
extending a stop by even three or five minutes beyond its justified duration.
See Jones, 234 F.3d at 241 (three minutes); Dortch, 199 F.3d at 196
(approximately five minutes).

                                      7
      An officer may ask questions outside the scope of the stop,

but only so long as such questions do not extend the duration of

the stop.     It is the length of the detention, not the questions

asked,   that   makes    a   specific   stop    unreasonable:20    the   Fourth

Amendment prohibits only unreasonable seizures, not unreasonable

questions, and law enforcement officers are always free to question

individuals if in doing so the questions do not effect a seizure.21



                                        C

      The Fourth Amendment’s requirement that stops be reasonable

applies equally to a checkpoint.            Because stops at an immigration

checkpoint need not be justified by reasonable suspicion, however,

we do not ask the stopping officer to articulate a justification

for the stop.        Instead, the justification for an immigration

checkpoint stop comes from its programmatic purpose. Edmond stands



      20
         As we note below, in the checkpoint context, a stop would also be
unreasonable if the programmatic purpose of the checkpoint’s operation is
invalid.

      21
         As we explained in United States v. Shabazz, 993 F.3d 431 (5th Cir.
1993), detention, not questioning, implicates the Fourth Amendment; thus,
questioning can only run afoul of the Fourth Amendment if the detention is
affected. See id. at 436-37. In Shabazz, an officer conducting a traffic stop
asked a motorist questions about contraband while waiting for the results of a
computer check of the motorist’s license and registration. See id. at 437.
Since the detention of the motorist was justified until the results of the check
were returned to the officer, we concluded that the questions did not violate the
Fourth Amendment because they did not extend the stop. See id. We recognized,
however, that questioning unrelated to the justification for the stop that
extends the duration of the stop violates the Fourth Amendment. See id. at 437.
Likewise, while a drug-dog sniff is not a search, see Edmond, 531 U.S. at 40, it
is beyond the justifying scope of an immigration stop. Thus, border patrol
agents may only conduct a drug-dog sniff if it does not lengthen the stop or if
they obtain consent.

                                        8
for the principle that it is a legitimate, programmatic purpose

that justifies a checkpoint stop made without any suspicion.

     We have already noted that the permissible duration of the

stop is limited to the time reasonably necessary to complete a

brief investigation of the matter within the scope of the stop.

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.22 The

permissible duration of an immigration checkpoint stop is therefore

the time reasonably necessary to determine the citizenship status

of the persons stopped.23     This would include 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.

     The permissible duration of an immigration checkpoint stop is

therefore brief.     Indeed, the brevity of a valid immigration stop

was a principal rationale for the Supreme Court’s conclusion in

Martinez-Fuerte that immigration checkpoints are constitutional:

“The stop does intrude to a limited extent on motorists’ right to

free passage without interruption . . . [b]ut it involves only a

     22
          See id.
     23
         “[I]n every one of its many checkpoint and roving patrol cases, the
Supreme Court has restricted the level of government intrusion to brief
detentions only long enough to ask questions and check citizenship status. . .
.   The Court has thus demarcated the boundary of privacy that officials at
checkpoints cannot intrude without reason.” United States v. Jackson, 825 F.2d
853, 862 (5th Cir. 1987) (en banc); see also United States v. Pierre, 958 F.2d
1304, 1308-09 (5th Cir. 1992) (en banc).

                                      9
brief detention of travelers during which [a]ll that is required of

the vehicle’s occupants is a response to a brief question or two

and possibly the production of a document evidencing a right to be

in the United States.”24

      Within this brief window of time in which a Border Patrol

agent      may    conduct   a    checkpoint     stop,   however,    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.25           Law enforcement officers must have leeway in

formulating questions to determine citizenship status.                   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-




      24
           428 U.S. at 557-58 (internal quotation marks omitted).
      25
         Unlike in contexts where a stop is based on reasonable suspicion, where
a court can judge the relevance of questions against the specific rationale
justifying the stop, a checkpoint stop is made without individualized suspicion
and therefore justified only by more general, programmatic purpose.

                                           10
equipped and would court inquiry into the subjective purpose of the

officer asking the questions.26

      Of course, a Border Patrol agent may extend a stop based upon

sufficient individualized suspicion.              For extended detentions or

for searches, Martinez-Fuerte requires consent or probable cause.27

Also, if the initial, routine questioning generates reasonable

suspicion of other criminal activity, the stop may be lengthened to

accommodate       its   new    justification.28     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.29

      26
        We do not inquire into the motives of individual Border Patrol agents
in performing stops. See Whren v. United States, 517 U.S. 806, 813 (1996).
Instead, we determine whether the stop objectively conforms to the limitations
placed on the stop by its justifying purpose. See id. (noting that an officer’s
state of mind “does not invalidate [an] action taken as long as the
circumstances, viewed objectively, justify that action.”) (quoting United States
v. Robinson, 414 U.S. 218, 136 (1973)).
      27
           See 428 U.S. at 567.
      28
        As the Edmond court noted, “police officers [may] act appropriately upon
information that they properly learn during a checkpoint stop justified by a
lawful primary purpose, even when such action may result in the arrest of a
motorist for an offense unrelated to that purpose.” 531 U.S. at 48.
      29
         The government points to cases from this court that have upheld stops
and searches for drugs at immigration checkpoints. Machuca-Barrera points out
that in virtually all of those cases, we noted that the agents at the checkpoints
had reasonable suspicion or probable cause. The exception is United States v.
Hernandez, 976 F.2d 929 (5th Cir. 1992) (per curiam), which stated in passing
that “[a]gents [during suspicionless immigration stops] may also make referrals
to conduct inquiries about controlled substances.” Id. at 930. This case has
little relevance, however. Hernandez only speaks to the reason for the referral
to secondary, not the length of the stop. Thus, while a border patrol agent may
refer a car to secondary for any reason (or no reason at all), see Jackson, 825
F.2d at 862, the length of the detention is still limited by the immigration-
related justification for the stop, see id. To the extent that this dictum

                                         11
                                       D

      In this case, it is not disputed that the primary purpose of

the Marfa checkpoint is to investigate immigration status.30                   Thus,

we face only the question of whether the suspicionless stop of

Machuca-Barrera     was   sufficiently        limited   in   duration     to   pass

constitutional     muster.31      We   note    initially     that   our   inquiry

considers only Agent Holt’s questioning of Machuca-Barrera up to

the point at which Machuca-Barrera consented to a search of his




stands for more than this, it is inconsistent with Edmond and our en banc holding
in Jackson, to which we are bound.
      30
         Of course, a stop made without reasonable suspicion at a checkpoint with
an invalid programmatic purpose would be unconstitutional. See Edmond, 531 U.S.
at 47-48.
      31
         We note that Agent Holt did not have reasonable suspicion of any
criminal activity during his questioning of Machuca-Barrera at primary.

                                       12
car.32        After Machuca-Barrera consented to a search, Agent Holt

needed no justification to prolong the encounter.33

       The     justified     scope   of   the   stop   was    immigration-related

questions. Therefore, the permissible duration of the stop was the

amount of time reasonably necessary for Agent Holt to ask a few

questions about immigration status.                Agent Holt’s few questions

took     no    more   than   a   couple   of    minutes;     this   is   within   the

permissible duration of an immigration checkpoint stop.                    Although

Machuca-Barrera notes that Agent Holt asked a question about drugs,

we will not second-guess Agent Holt’s judgment in asking that

question.        The brief stop by Agent Holt, which determined the

citizenship status of the travelers and lasted no more than a




       32
        If Machuca-Barrera had not consented to the requested search, Agent Holt
would not have been able to extend the stop beyond its permissible duration. The
mere fact that a person refuses to consent to search cannot be used as evidence
in support of reasonable suspicion. See United States v. Hunnicutt, 135 F.3d
1345, 1350-51 (10th Cir. 1998) (noting that it “would make a mockery of the
reasonable suspicion and probable cause requirements . . . if citizens’
insistence that searches and seizures be conducted in conformity with
constitutional norms could create the suspicion or cause that renders their
consent unnecessary”); Karnes v. Skrutski, 62 F.3d 485, 495 (3d Cir. 1995)
(holding that refusal to consent to search “cannot support a finding of
reasonable suspicion”); see also United States v. Moreno, 233 F.3d 937, 941 (7th
Cir. 2000) (collecting related cases). Nonetheless, Agent Holt would still have
had discretion to refer Machuca-Barrera to secondary. See Martinez-Fuerte, 428
U.S. at 563-64. However, in the absence of reasonable suspicion, probable cause,
or consent, a referral to secondary does not increase the permissible length of
the stop, except perhaps to the extent that relocating the car to secondary
consumes time. See United States v. Rascon-Ortiz, 994 F.2d 749, 753 (10th Cir.
1993) (“Whether the routine checkpoint stop is conducted at primary, secondary,
or both is irrelevant to Fourth Amendment concerns.”). The constitutionality of
a seizure at a checkpoint stop depends on its duration, not its location.
       33
        A search based on valid consent need not be supported by probable cause.
See United States v. Richard, 994 F.2d 244, 250 (5th Cir. 1993). Because we find
no Fourth Amendment violation, we need not address Machuca-Barrera’s claim that
his consent was invalidated by a constitutional violation.

                                          13
couple of minutes before Agent Holt requested and received consent

to search, was constitutional.



                                        III

       Machuca-Barrera       challenges       the    prosecutor’s        arguments

insinuating that Andres Machuca made up his corroborating testimony

after hearing trial testimony, saying that they had no basis in the

evidence.      In fact, Machuca-Barrera argues, the record reflects

that    Andres   was   not   in   the    courtroom     when     other   witnesses

testified.34      As   a   consequence,       he   concludes,    the    prosecutor

unfairly influenced the jury and deprived him of a right to a fair

trial.

       In reviewing a claim of prosecutorial misconduct in arguing to

the jury, we decide whether the remarks were improper and, if so,

evaluate whether the remarks affected the substantial rights of the

defendant.35     If they did not, the error is harmless and does not

justify reversal.36

       A prosecutor may argue “those inferences and conclusions he

wishes [the jury] to draw from the evidence so long as those




      34
         The district court granted defense counsel’s motion to sequester the
witnesses.
       35
         See United States v. Gallardo-Trapero, 185 F.3d 307, 320 (5th Cir.
1999); United States v. Munoz, 150 F.3d 401, 414-15 (5th Cir. 1998).

      36
         See Munoz, 150 F.3d at 415; United States v. Vaccaro, 115 F.3d 1211,
1215 (5th Cir. 1997).

                                        14
inferences are grounded upon the evidence.”37                But “a prosecutor’s

closing argument cannot roam beyond the evidence presented during

trial.”38      In assessing the prosecutor’s statements in this case,

“it is necessary to look at them in context.”39

      It is true that the specific fact of Andres Machuca being in

the courtroom is not in the record.                In context, however, the

prosecutor’s suggestions that the witness’s testimony was recently

fabricated were grounded in the record and represented an argument

about reasonable inferences that the prosecutor invited the jury to

draw.      Given that the witness had not told his story prior to

trial, a reasonable juror could infer that if his story were true,

he would have offered it sooner to help Machuca-Barrera.                      The

assertion      that   Andres   Machuca    could    not   have    heard   Machuca-

Barrera’s testimony in the courtroom does not contradict the

substance of the prosecutor’s argument; the jury need only infer

that Andres Machuca had heard at some point “what was testified to

in the courtroom about the wooden blocks.”                    Consequently, the

district      court    did   not   err   in     overruling     Machuca-Barrera’s

objection to the prosecutor’s comment.




      37
           United States v. Washington, 44 F.3d 1271, 1278 (5th Cir. 1995).
      38
        Gallardo-Trapero, 185 F.3d at 320; see also United States v. Murrah, 888
F.2d 24, 26 (5th Cir. 1989) (“A prosecutor may not directly refer to or even
allude to evidence that was not adduced at trial.”).
      39
           Gallardo-Trapero, 185 F.3d at 320.

                                         15
                          IV

The judgment of the district court is AFFIRMED.




                          16
