                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-3486
                                   ___________

United States of America,           *
                                    *
                 Appellee,          *
                                    * Appeal from the United States
      v.                            * District Court for the District
                                    * of Nebraska.
Juan Angulo-Guerrero, also known    *
as Ramon Rocha-Lara,                *
                                    *
                 Appellant.         *
                               ___________

                             Submitted: March 11, 2003

                                  Filed: May 8, 2003
                                   ___________

Before McMILLIAN, FAGG, and LOKEN,* Circuit Judges.
                            ___________

FAGG, Circuit Judge.

      Juan Angulo-Guerrero, a passenger on a Greyhound bus, told a government
agent conducting an immigration inspection that he was in the United States illegally
and that he had been previously deported. Angulo-Guerrero was arrested and
charged with illegally reentering the United States following deportation. See 8



      *
       The Honorable James B. Loken became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2003.
U.S.C. § 1326. After the district court** denied his motion to suppress his statements
to the officer, Angulo-Guerrero conditionally pleaded guilty. Angulo-Guerrero now
appeals the denial of his motion to suppress, and we affirm.

       Angulo-Guerrero was a passenger on a bus that arrived in Ogallala, Nebraska,
for a scheduled stop and driver exchange. Before any passengers got off the bus,
special agents Johnson and Sattly boarded. They were wearing jackets bearing
Immigration and Naturalization Service (INS)*** insignia, and were armed but did not
display their weapons. The agents were conducting an immigration inspection
operation on all east- and west-bound busses with scheduled stops at Ogallala, and
explained this to the driver. Standing in the aisle at the front of the bus with Sattly
behind him, Johnson explained to the passengers in both English and Spanish, “[T]his
is an immigration inspection and when I approach you just state whether you’re a
United States citizen or not. And if [you are] not please have [your] immigration
documents ready for inspection.” Four to six passengers came forward and asked if
they could leave the bus. Johnson asked the passengers whether they were American
citizens. They responded affirmatively and left. Moving down the aisle towards the
back of the bus, Johnson next came to Angulo-Guerrero, who was seated two rows
behind the driver, and asked him in English whether he was a United States citizen.
Angulo-Guerrero did not reply. Believing Angulo-Guerrero did not understand
English, Johnson asked Angulo-Guerrero in Spanish where he was born. Angulo-
Guerrero responded he was born in Mexico. Johnson then asked whether Angulo-
Guerrero had any immigration documents, and Angulo-Guerrero said he did not.
Johnson also asked Angulo-Guerrero whether he was in the United States legally or
illegally. Angulo-Guerrero admitted he was here illegally, and Sattly escorted


      **
       The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
      ***
        The enforcement units of the INS have been incorporated into the Directorate
of Border and Transportation Security of the Department of Homeland Security.

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Angulo-Guerrero off the bus. After Johnson finished questioning the other
passengers, he stepped off the bus and asked Angulo-Guerrero whether he had ever
been deported. Angulo-Guerrero admitted he had.

      On appeal, Angulo-Guerrero contends his motion to suppress should have been
granted because the immigration inspection was an investigative detention without
reasonable suspicion of criminal activity. According to Angulo-Guerrero, the
inspection was conducted in the close confines of a bus in a manner that restricted the
passengers’ movement and indicated that compliance with the agents was required.

      The Supreme Court has recently explained the guiding legal principles:

      Law enforcement officers do not violate the Fourth Amendment’s
      prohibition of unreasonable seizures merely by approaching individuals
      on the street or in other public places and putting questions to them if
      they are willing to listen. Even when law enforcement officers have no
      basis for suspecting a particular individual, they may pose questions, ask
      for identification, and request consent to search luggage–provided they
      do not induce cooperation by coercive means. If a reasonable person
      would feel free to terminate the encounter, then he or she has not been
      seized.

United States v. Drayton, 122 S. Ct. 2105, 2110 (2002) (citations omitted). The mere
fact that police questioning takes place in the “cramped confines of a bus” does not
transform the questioning into a seizure. Florida v. Bostick, 501 U.S. 429, 439
(1991). The Fourth Amendment is implicated only when a reasonable person would
believe he or she is not free not to respond to the officer’s questions, viewed from the
totality of the circumstances. See id. at 439-40.

       Applying these principles, the Supreme Court held no seizure occurred when
officers boarded a bus during a scheduled stop and began questioning passengers
about their travel plans and baggage in a routine drug and weapons interdiction effort.

                                          -3-
Drayton, 122 S. Ct. at 2112. The officers gave the passengers no reason to believe
they were required to answer the officers’ questions, and did not brandish weapons
or make any intimidating movements. Id. The officers questioned the passengers one
by one, and nothing the officers said would have suggested to a reasonable person
that he or she was barred from leaving the bus or otherwise terminating the encounter.
Id. The fact that one of the officers stood at the front of the bus did not tip the scale
in the defendant’s favor. Id.

        In another case, the Supreme Court held INS questioning of factory workers
in their workplace about their citizenship was not a seizure even though uniformed
INS agents were posted at the workplace exits and the workers were not told they
need not respond. I.N.S. v. Delgado, 466 U.S. 210, 211-12, 217 (1984). The Court
stated, “While most citizens will respond to a police request, the fact that people do
so, and do so without being told they are free not to respond, hardly eliminates the
consensual nature of the response.” Id. at 216. The Court noted there was nothing
in the record showing the agents stationed at the factory doors prevented anyone from
leaving, and the obvious purpose of the agent’s presence at the doors was to ensure
all the workers were questioned. Id. at 218.

       Given these precedents, we conclude Angulo-Guerrero was not seized when
he answered Johnson’s questions on the bus. Johnson was moving down the aisle
from the front towards the back of the bus to make sure all passengers were
questioned and not to prevent them from leaving. Indeed, some passengers got up to
leave and did so. The fact that Johnson asked them whether they were American
citizens does not turn the encounter into a detention or seizure. Further, the fact that
Johnson asked Angulo-Guerrero in Spanish where he was from after Angulo-
Guerrero did not respond to his question in English did not constitute a show of
authority creating a reasonable belief Angulo-Guerrero was not free to leave. There
is simply no evidence that passengers would be detained if they refused to answer
Johnson’s questions. Likewise, the agents’ appearance did not contribute to an

                                          -4-
atmosphere of coercion. The agents simply wore badges identifying themselves, and
did not display their guns. Considering the totality of the circumstances, we conclude
the district court properly denied Angulo-Guerrero’s motion to suppress.

      We thus affirm the district court.

LOKEN, Chief Judge, concurring.

       I join the opinion of the court. But like Justice Powell, concurring in INS v.
Delgado, 466 U.S. 210, 221-24 (1984), I believe the district court’s suppression
ruling must also be affirmed on an alternative ground. Given the government’s
important interest in enforcing the nation’s immigration laws, I conclude that it was
constitutionally reasonable for the INS agents to detain Angulo-Guerrero for the
limited purpose of questioning him about his citizenship, whether or not the agents
had his consent or reasonable suspicion of criminal activity.

       Congress has granted broad powers to those who enforce our immigration laws,
including the power “to interrogate any alien or person believed to be an alien as to
his right to be or to remain in the United States [and] to arrest any alien in the United
States, if [the agent] has reason to believe that the alien so arrested is in the United
States in violation of any such law or regulation and is likely to escape before a
warrant can be obtained.” 8 U.S.C. § 1357(a)(1) and (2). Beginning thirty years ago,
the Supreme Court considered the constitutional validity of these search and seizure
powers in a series of cases involving stops and searches of automobiles that might be
transporting illegal aliens. In Almeida-Sanchez v. United States, 413 U.S. 266, 268
(1973), the Court explained:

            The Border Patrol conducts three types of surveillance along
      inland roadways, all in the asserted interest of detecting the illegal
      importation of aliens. Permanent checkpoints are maintained at certain
      nodal intersections; temporary checkpoints are established from time to
      time at various places; and finally, there are roving patrols such as the
      one that stopped and searched the petitioner’s car.

In Almeida-Sanchez, a closely divided Court held that the warrantless search of a car
stopped by a roving patrol violated the Fourth Amendment.

       Two years later, the Court held in United States v. Brignoni-Ponce, 422 U.S.
873, 884 (1975), that “[e]xcept at the border and its functional equivalents, officers
on roving patrol may stop vehicles [to question occupants] only if they are aware of
specific articulable facts . . . that reasonably warrant suspicion that the vehicles
contain aliens who may be illegally in the country.” In the companion case of United
States v. Ortiz, 422 U.S. 891, 896-97 (1975), the Court, applying Almeida-Sanchez,
held “that at traffic checkpoints removed from the border and its functional
equivalents, officers may not search private vehicles without consent or probable
cause.” But the Court expressly noted that the rule in Almeida-Sanchez might not
apply to checkpoint stops. Although the regularity of the procedures attending a
checkpoint cannot “mitigate the invasion of privacy that a search entails,” the Court
explained, “the differences between a roving patrol and a checkpoint would be
significant in determining the propriety of the stop, which is considerably less
intrusive than a search.” Ortiz, 422 U.S. at 895.


      One year later, the Court confirmed the importance of this distinction in United
States v. Martinez-Fuerte, 428 U.S. 543 (1976). The Court held that the Fourth
Amendment is not violated when immigration agents, acting without consent or
individualized suspicion, routinely stop automobiles at a permanent checkpoint away
from the border with Mexico and refer a small percentage of the stopped vehicles to
a secondary inspection area for routine inquiry into the occupants’ residence status.

      In my view, this case is controlled by the Supreme Court’s analysis in
Martinez-Fuerte. At the suppression hearing, the government placed in evidence a

                                         -6-
January 2002 internal INS operations plan explaining that, based upon preliminary
surveillance of the twelve regularly scheduled buses stopping daily at the Ogallala
rest stop, the INS Omaha District suspected “that this mode of transportation is
regularly being utilized by a growing number of undocumented aliens and by
organized smugglers to move groups of aliens through the United States via the I-80
corridor [and] that the use of this mode of transportation has increased since security
at Airports has been tightened.” Accordingly, the operation plan assigned nine INS
agents to board each bus as it stopped at Ogallala on January 29 and 30, 2002, to
determine the alienage of each passenger.

       The operation plan reflects an agency decision to make the Ogallala bus stop
a two-day temporary checkpoint at which bus travelers would be briefly questioned
about their residence status. For Fourth Amendment purposes, the resulting intrusion
was truly minimal. Unlike what occurs at an automobile checkpoint (whether
permanent or temporary), the agents did not interrupt travel by stopping the buses.
They were already stopped for a scheduled break. Without extending the stop or
significantly interfering with the travelers’ break time, the agents briefly questioned
the passengers about their citizenship. Compare Delgado, 466 U.S. at 224 (Powell,
J., concurring) (factory workers “diverted briefly to answer a few [survey]
questions”). Such brief questioning regarding citizenship is a minimal intrusion on
the bus travelers’ privacy interests compared to the government’s substantial interest
in controlling illegal immigration. See Brignoni-Ponce, 422 U.S. at 880.

       Not only was the intrusion minimal, the District operation plan, like the
establishment of a permanent checkpoint, limited the discretion of INS agents in the
field to select which bus passengers would be questioned. See Martinez-Fuerte, 428
U.S. at 559. In addition, although the Ogallala stop is a considerable distance from
the border with Mexico, the operation plan established a nexus between the two-day
questioning of bus passengers and the government’s substantial interest in controlling
illegal immigration. In our highly mobile society, the government may reasonably

                                         -7-
choose to control illegal immigration by monitoring common routes that illegal aliens
use to travel when seeking jobs in the interior. In that regard, the location of
permanent and temporary checkpoints must be left largely to the discretion of INS
officials, subject to judicial review of a particular stop for constitutional
reasonableness. See Martinez-Fuerte, 428 U.S. at 559 and n.13.

       For these reasons, I conclude that the INS agents’ limited questioning of
Angulo-Guerrero on the stopped bus was constitutionally reasonable, even if it was
a brief, non-consensual seizure conducted without reasonable suspicion that criminal
activity was afoot.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -8-
