311 F.3d 647 | 5th Cir. | 2002
Lead Opinion
Reynaldo Portillo-Aguirre appeals both his conviction of possession with intent to
I. BACKGROUND
On September 20, 2000, at about 10:15 p.m., 'an Americanos passenger bus arrived at the Sierra Blanca immigration checkpoint.
After Agent Woodruff completed his immigration inspection, and while he was returning to the front of the bus to exit, he noticed a small carry-on bag underneath Portillo-Aguirre’s seat.. Agent Woodruff testified that he had not seen the bag earlier because Portillo-Aguirre was sitting with his legs straight down and had a pillow and a book on his lap. In other words, the bag was visible only from behind Portillo-Aguirre’s seat. Agent Wood-ruff further testified that Portillo-Aguirre appeared rigid and was looking straight ahead, which aroused Agent Woodruffs suspicion. Acting on this suspicion, he began to question Portillo-Aguirre.
The first question was whether Portillo-Aguirre had a bag on the bus. In response, Portillo-Aguirre pointed to a backpack located in the overhead bin above his seat. Agent Woodruff then asked Portil-lo-Aguirre if the bag beneath his seat belonged to him, and Portillo-Aguirre indicated that it did. Agent Woodruff next inquired about the contents of the bag, and, according to his testimony, Portillo-Aguirre began to fidget nervously and replied that the bag contained books and clothes. When Agent Woodruff asked if he could look inside the bag, Portillo-
After the arrest, Agent Woodruff noticed another bag under the seat in front of the one where Portillo-Aguirre had sat. Although different in color, the bag was identical in design to the one seized from Portillo-Aguirre. Agent Woodruff questioned the passengers and discovered that the bag belonged to Portillo-Aguirre’s wife. She consented to a search, and Agent Woodruff found another wrapped bundle. He then placed her under arrest and escorted her off the bus.
The district court denied Portillo-Aguirre’s and his wife’s motions to suppress the evidence obtained on the bus, holding that the seizure of the bus at the checkpoint was constitutionally permissible and that the Border Patrol has the authority to extend an immigration seizure to investigate whether illegal drugs are on board a vehicle if the agent is aware of specific articulable facts that reasonably warrant suspicion. The court found that there was reasonable suspicion to support the continued seizure of Portillo-Aguirre and his fellow passengers based on the following facts: Portillo-Aguirre was nervous; the bag under his seat could be seen only from behind; when- asked about his luggage, Portillo-Aguirre initially pointed to his backpack in the overhead compartment; and he became increasingly nervous as the questioning progressed. Finally, the court held that Portillo-Aguirre voluntarily consented to the search of his bag.
A jury convicted Portillo-Aguirre of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1).
II. ANALYSIS
A. Standard of Review
In an appeal from the denial of a motion to suppress, we review questions of law de novo and the district court’s factual
B. Seizure of the Bus
The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....”
Passengers traveling on a commercial bus receive the same degree of constitutional protection and are subject to the -same' legitimate intrusions on their Fourth Amendment interests as those in private vehicles.
C. Extension of the Seizure
Although the Supreme Court created a narrow exception to the general requirements of reasonable suspicion and probable cause in Martinez-Fuerte, it emphasized that appropriate limitations on the scope of an immigration stop safeguard Fourth Amendment rights at permanent checkpoints.
In Machuca-Barrera, we considered the stop of an automobile at a permanent immigration checkpoint. While questioning the driver and his passenger about their citizenship, a Border Patrol agent asked whether they were carrying any firearms or drugs.
In our analysis, we stated that the Constitution is violated when a detention extends beyond the valid reason for the initial stop.
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. Also, if the initial, routine questioning generates reasonable suspicion of other criminal activity, the stop may be lengthened to accommodate its new justification. Thus, an agent at an immigration stop may investigate non-immigration matters beyond the permissi*654 ble length of the immigration stop if and only if the initial, lawful stop creates reasonable suspicion warranting further investigation.27
The stop of' Machuca-Barrera lasted only a couple of minutes.
Conversely, when officers detain travelers after the legitimate justification for a stop has ended, the continued detention is unreasonable. We have found that police violated the. Fourth Amendment by extending a stop even three minutes beyond its permissible duration.
In United States v. Jones, officers stopped a car for a speeding violation.
The basis for the stop was essentially completed when the dispatcher notified the officers about the defendants’ clean records, three minutes before the officers sought consent to search the vehicle. Accordingly, the officers should have ended the detention and allowed the defendants to leave. And the failure to release the defendants violated the Fourth Amendment.34
Similarly, in United States v. Dortch, highway patrol officers stopped the defendant’s car for traveling too close to another vehicle.
With these authorities in mind, we return our focus to the continued detention of Portillo-Aguirre after the immigration check was completed. At the suppression hearing, Agent Woodruff testified that his modus operandi for bus inspections in September 2000 was to verify the passengers’ citizenship status and then begin looking for signs of narcotics trafficking. Because he proceeded in this manner on the day he arrested Portillo-Aguirre, we must first decide whether Agent Wood-ruffs general method passes constitutional muster. We find that it does not.
The Supreme Court has upheld brief, suspicionless seizures of motorists at checkpoints created to intercept illegal aliens
It bears repeating that the permissible duration of an immigration stop is the time reasonably necessary to determine the citizenship status of the persons
of nervousness” does not justify the extension of the stop.
Because Agent Woodruff did not develop reasonable suspicion during his initial, lawful encounter with PortilloAguirre, our final inquiry is whether he developed the requisite suspicion while returning to the front of the bus to exit. This inquiry hinges on the two articulated facts known to Agent Woodruff before he extended the detention by questioning Portillo-Aguirre about his luggage: (1) there was a bag underneath PortilloAguirre’s seat that Agent Woodruff did not notice during the immigration inspection because of the manner in which Portillo-Aguirre was sitting, and (2) PortilloAguirre appeared rigid and was looking straight ahead.
First, the fact that the manner in which Portillo-Aguirre was sitting obscured the view of his bag does not support a finding of reasonable suspicion. Agent Woodruff acknowledged that it was perfectly normal
[A]s you’re walking off the bus, you’re facing everyone’s back. So, I’m looking beneath the seats as I’m walking off because there’s things you can’t see stored beneath the seats from the front because people’s legs are in the way ... or ... the particular piece of luggage is pushed far back where you can’t see that as you’re walking down the bus.
And during cross-examination by Portillo-Aguirre’s counsel Ray Velarde, Agent Woodruff also admitted that there was nothing inherently suspicious about the bag underneath Portillo-Aguirre’s seat:
VELARDE: Now, there was nothing apparent about the bag upon visual inspection that aroused your suspicion. Correct?
WOODRUFF: Other than — no.
VELARDE: Nothing!?]
WOODRUFF: From where I stood, no.
VELARDE: It’s just a plain and ordinary bag.
WOODRUFF: It’s a bag that’s not visible from the front.
VELARDE: And this bag is not commonly used ... by dope smugglers?
WOODRUFF: Not that I’m aware of.
VELARDE: That didn’t come into -the picture?
WOODRUFF: No.
In short, neither the bag nor its location suggested that criminal activity was afoot. If such common circumstances qualified as reasonable suspicion, then most interstate travelers would be subject to prolonged detention, for virtually any item of luggage, from a handbag to a suitcase, is capable of housing illegal narcotics.
Second, Agent Woodruffs additional observation that Portillo-Aguirre was sitting in an erect and rigid fashion and looking straight ahead does not tip the scales in favor ' of reasonable suspicion. Because consistency between a bus passenger’s posture and the design of his seat is hardly suspicious, this fact can be given little or no weight. Considering, then, the totality of the circumstances, including the Border Patrol agent’s constitutionally defective modus operandi, we conclude that Portil-lo-Aguirre’s nervous appearance, the position of his luggage, and his erect posture did not amount to reasonable suspicion of drug trafficking or any other crime.
In Machuca-Barrera, we observed limitations on the use of immigration checkpoints to stop and question people regarding their citizenship status without individualized suspicion of wrongdoing. Although we do not require Border Patrol agents to look the other way when evidence of criminal activity is before them, if an agent does not develop reasonable suspicion of such activity before the justifying purpose of a checkpoint stop has been accomplished, he may not prolong the stop. Agent Woodruff did not develop reasonable suspicion of criminal activity while he was questioning the passengers on the Americanos bus about their citizenship status. So, unless something occurred while Agent Woodruff was returning to the front of the bus that raised reasonable suspicion of criminal activity, thereby justifying his extension of the stop, Portillo-Aguirre and his fellow passengers, like the motorists in Jones and Dortch, should have been permitted to leave.
D. Search of Portillo-Aguirre’s Bag
Under the fruit of the poisonous tree doctrine, all evidence derived from the exploitation of an illegal seizure must be suppressed, unless the government shows that there was a break in the chain of events sufficient to refute the inference that the evidence was a product of the Fourth Amendment violation.
In United States v. Chavez-Villarreal, we noted that when we evaluate consent given after a Fourth Amendment violation, “[t]he admissibility of the challenged evidence turns on a two-pronged inquiry: whether the consent was voluntarily given and whether it was an independent act of free will.”
Six factors bear on the voluntariness of the consent:
(1) the voluntariness of the defendant’s custodial status; (2) the presence of coercive police procedures; (3) the extent and level of the defendant’s cooperation with the police; (4) the defendant’s awareness of his right to refuse consent; (5) the defendant’s education and intelligence; and (6) the defendant’s belief that no incriminating evidence will be*659 found. Although all six factors are relevant, no single factor is dispositive.58
The district court considered these factors and found that Portillo-Aguirre voluntarily consented to Agent Woodruffs search of his bag. Because this finding is entitled to great deference under the clearly erroneous standard of review, we pretermit our inquiry into voluntariness, as it is clear that the government failed to prove that Portillo-Aguirre’s consent was an independent act of free will.
To determine whether the consent was an independent act of free will and, thus, broke the causal chain between the consent and the illegal detention, we must consider: (1) the temporal proximity of the illegal conduct and the consent; (2) the presence of intervening circumstances; and (8) the purpose and flagrancy of the initial misconduct.
In sum, even if the district court correctly found that Portillo-Aguirre voluntarily gave his consent, the consent was not valid. Instead, because the causal chain between the illegal detention and Portillo’s Aguirre’s consent to the search of his bag was not broken, the search was nonconsen-sual.
III. CONCLUSION
The government has an interest in intercepting illegal drugs, but the Supreme Court has held that this interest does not justify suspicionless detentions. And we have often recognized that “[mjotorists lawfully traveling on this nation’s roadways are clothed with Fourth Amendment protection from arbitrary government interference.”
Portillo-Aguirre’s conviction is REVERSED, and the case is REMANDED for entry of a judgment of acquittal.
REVERSED AND REMANDED WITH INSTRUCTIONS.
. The Sierra Blanca checkpoint is permanent in nature. It is located on Interstate Highway 10 about eighty miles southeast of El Paso, Texas; four miles west of Sierra Blanca, Texas; and fourteen air miles from the United States-Mexico border. Recognizing the importance of Interstate 10 as an artery of domestic travel, this court has held that the Sierra Blanca checkpoint is not a border equivalent. See United States v. Jackson, 825 F.2d 853, 854 (5th Cir.1987) (enbanc).
. Agent Ted Barron, who initially boarded the bus with Agent Woodruff, exited shortly thereafter and did not participate in checking the immigration status of the passengers.
. Both bundles contained cocaine. A grand jury charged both Portillo-Aguirre and his wife with possession with intent to distribute cocaine, but the government later dropped the charges against her.
. Portillo-Aguirre stipulated at trial that the substance seized from him was cocaine and that, with packaging, the cocaine weighed 17.19 kilograms. Without packaging, the cocaine weighed 12.99 kilograms. Based on the presentence report, which erroneously listed the net weight of the cocaine at 17.19 kilograms instead of 12.99 kilograms, the trial judge sentenced Portillo-Aguirre to 151 months’ imprisonment and five years of supervised release. Portillo-Aguirre appeals his sentence and contends that the drug-quantity error increased his base offense level from 32 to 34. Because we reverse his conviction, we do not reach this issue.
. United States v. Burbridge, 252 F.3d 775, 777 (5th Cir.2001).
. Blackwell v. Barton, 34 F.3d 298, 305 (5th Cir.1994). Accord United States v. Ibarra-Sanchez, 199 F.3d 753, 758 (5th Cir.1999).
. U.S. Const, amend. IV.
. City of Indianapolis v. Edmond, 531 U.S. 32, 37, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000).
. See id. at 40, 121 S.Ct. 447; United States v. Martinez-Fuerte, 428 U.S. 543, 556, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976).
. See 428 U.S. at 566-67, 96 S.Ct. 3074.
. See Edmond, 531 U.S. at 37-39, 121 S.Ct. 447.
. Martinez-Fuerte, 428 U.S. at 557, 96 S.Ct. 3074.
. Id. at 567, 96 S.Ct. 3074.
. See id. at 558, 567, 96 S.Ct. 3074 (citing United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)).
. See Florida v. Bostick, 501 U.S. 429, 438, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).
. See Men Keng Chang v. Jiugni, 669 F.2d 275, 279 (5th Cir.1982) (recognizing that the stop of a bus at a permanent immigration checkpoint is permissible even without reasonable suspicion of wrongdoing).
. See Martinez-Fuerte, 428 U.S. at 566-67, 96 S.Ct. 3074.
. 261 F.3d 425, 433 (5th Cir.2001). The district court did not have the benefit of our opinion in Machuca-Barrera when it denied Portillo-Aguirre's motion to suppress.
. Id.
. Id. at 429-30.
.Id. at 430.
. Id.
. Id.
. Id. at 432.
. Id.
. See id. at 433-34.
. Id. at 434.
. Id. at 435.
. Id.
. Id.
. 234 F.3d 234, 237 (5th Cir.2000).
. Id. at 237-39.
. Id. at 238-39.
. Id. at 241.
. 199 F.3d 193, 195 (5th Cir.1999).
. Id. at 195-96. The law enforcement purposes to be served by the computer check were to ensure that there were no outstanding warrants on Dortch and that the vehicle had not been stolen. Id. at 199.
. Id. at 196.
. Id. at 199.
. Id.
. Id. at 199, 203.
. See United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976).
. See Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990).
. See City of Indianapolis v. Edmond, 531 U.S. 32, 47-48, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000).
. íd. at 41, 121 S.Ct. 447.
. Id. at 44, 121 S.Ct. 447.
.Id. at 434.
. See id. at 433.
. United States v. Wood, 106 F.3d 942, 948 (10th Cir.1997). We have never held that nervousness alone is sufficient to create reasonable suspicion of criminal activity. In fact, we often give little or no weight to an officer's conclusional statement that a suspect appeared nervous. See, e.g., Dortch, 199 F.3d at 199; United States v. Samaguey, 180 F.3d 195, 198-99 (5th Cir.1999). Other circuits have explicitly held that nervousness alone does not justify detention beyond the permissible "duration of a stop. See United States v. Chavez-Valenzuela, 268 F.3d 719, 726 (9th Cir.2001) ("We ... hold today that nervousness during a traffic stop — even the extreme nervousness Chavez-Valenzuela exhibited here — in the absence of other particularized, objective factors, does not support a reasonable suspicion of criminal activity, and does not justify an officer’s continued detention of a suspect after he has satisfied the purpose of the stop."); United States v. Salzano, 158 F.3d 1107, 1113 (10th Cir.1998) ("Nervousness alone cannot support reasonable suspicion of criminal activity. This is because it is common for most people to exhibit signs of nervousness when confronted by a law enforcement officer whether or not the person is currently engaged in criminal activity.”) (internal quotation and citations omitted); see also United States v. Mesa, 62 F.3d 159, 162 (6th Cir.1995) ("Although there are a plethora of cases referring to a defendant appearing nervous, nervousness is generally included as one of several grounds for finding reasonable suspicion and not a ground sufficient in and of itself.”).
.The additional facts credited by the district court in finding that Agent Woodruff had reasonable suspicion, i.e., that Portillo-Aguirre initially admitted ownership of the backpack in the overhead compartment alone and became increasingly nervous as the questioning progressed, did not surface until after the detention had been unlawfully extended. Consequently, they are irrelevant to our inquiry.
. See Jones, 234 F.3d at 241; Dortch, 199 F.3d at 199.
.Contrary to our dissenting colleague's opinion, United States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002), is fundamentally distinguishable from the present case and therefore does not govern our decision. In Drayton, the passengers who consented to searches by plainclothes police officers were not seized because the requests for consent were made under circumstances in which a reasonable person would feel free to refuse or otherwise terminate the encounter: the passengers were on a Greyhound bus temporarily parked at an ordinary bus terminal; the driver had left the bus to complete paperwork inside the terminal building; passengers who declined to cooperate or who chose to exit the bus at any time would have been allowed to do so without argument; and it was common for passengers to leave the bus for a cigarette or a snack while the officers were on board. See id. at 2109-10, 2112.
In the present case, however, there is no dispute that Portillo-Aguirre and his fellow passengers were "seized” during the entire time that their bus was stopped at the Sierra Blanca checkpoint. See Edmond, 531 U.S. at 40, 121 S.Ct. 447 ("[A] vehicle stop at a highway checkpoint effectuates a seizure within the meaning of the Fourth Amendment.”); Martinez-Fuerte, 428 U.S. at 556, 96 S.Ct. 3074 ("[C]heckpoint stops are 'seizures’ within the meaning of the Fourth Amendment.”). Thus, this case presents a very different question from the one raised in Drayton. Our concern is not with whether Portillo-Aguirre was seized, for he unquestionably was. Instead, the question here is whether the seizure of Portillo-Aguirre, his fellow passengers, and their bus extended beyond its permissible duration in violation of the Fourth Amendment. For the reasons we have given, we conclude that it did.
. United States v. Rivas, 157 F.3d 364, 368 (5th Cir.1998). Thus, "[t]he burden of showing admissibility rests on the government.” United States v. Chavez-Villarreal, 3 F.3d 124, 128 (5th Cir.1993).
. See Chavez-Villarreal, 3 F.3d at 127.
. Id.
. Id.
. Dortch, 199 F.3d at 201.
. United States v. Shabazz, 993 F.2d 431, 438 (5th Cir.1993) (internal quotation and citation omitted).
. See Chavez-Villarreal, 3 F.3d at 128; Dortch, 199 F.3d at 201-02; Jones, 234 F.3d at 243.
. Chavez-Villarreal, 3 F.3d at 127-28.
. Jones, 234 F.3d at 243; Chavez-Villarreal, 3 F.3d at 128.
. See Jones, 234 F.3d at 243 (finding a close temporal proximity because the detention that became prolonged and unreasonable after the computer checks were completed continued up to the time of defendant's consent); Dortch, 199 F.3d at 202 (same).
. Dortch, 199 F.3d at 202.
. Edmond, 531 U.S. at 41, 121 S.Ct. 447.
. Chavez-Villarreal, 3 F.3d at 128.
. Dortch, 199 F.3d at 202.
. See id. at 202-03.
. See Chavez-Villarreal, 3 F.3d at 126, 128.
. See Dortch, 199 F.3d at 203.
. United States v. Jackson, 825 F.2d 853, 858-59 (5th Cir.1987) (en banc).
. See Florida v. Bostick, 501 U.S. 429, 438, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).
. In the words of our sister circuit, "[t]o sanction a finding that the Fourth Amendment permits [extended detention] based on such a weak foundation would be tantamount to subjecting the traveling public to virtually random seizures, inquisitions to obtain information which could then be used to suggest reasonable suspicion, and arbitrary exercises of police power.” United States v. Wood, 106 F.3d 942, 948 (10th Cir.1997).
Dissenting Opinion
dissenting:
I respectfully dissent. I can find no unreasonableness or fault in the conduct of the officers. And I do not believe that the majority gives due deference to the district court who heard the relevant live testimony. Nor do I believe that the majority properly applies the deferential reasonable suspicion standard. Reasonable suspicion is a considerably less stringent standard than probable cause. See United States v. Wangler, 987 F.2d 228, 230 (5th Cir.1993).
To begin, absent any show of coercion or extended retention, the officers were free to ask the passengers questions on the way to leaving the bus. The Supreme Court said in United States v. Drayton that, even with no basis for suspecting criminal activities, officers were free to “pose questions, ask for identification, and request consent to search luggage — provided they do not induce cooperation by coercive means.” 536 U.S. 194, 122 S.Ct. 2105, 2110, 153 L.Ed.2d 242 (2002).
Furthermore, the officer’s brief pause was justified by the circumstances. Portil-lo-Aguirre’s nervousness plus his posture that concealed the bag so it could only be seen from behind, together with the notorious history of the Sierra Blanca checkpoint, provided sufficient reasonable suspicion for Agent Woodruff to briefly extend the stop to ask Portillo-Aguirre whether he had a bag. Woodruff testified that drug seizures on the buses stopped at the checkpoint were almost a daily event.
When Portillo-Aguirre pointed only to the backpack in the overhead bin, Wood-ruff had all the more reasonable suspicion to inquire about the bag beneath Portillo-Aguirre’s seat. In my view Woodruff won additional time to extend the detention