United States v. Ventura

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED MAY 10, 2006
April 20, 2006
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 04-41524
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
LEONEL VENTURA,
Defendant-Appellee.
Appeal from the United States District Court for
the Southern District of Texas
(USDC No. 5:04-CR-1436-ALL)
_________________________________________________________
Before REAVLEY, HIGGINBOTHAM and CLEMENT, Circuit Judges.
REAVLEY, Circuit Judge:
The Government appeals the district court’s grant of defendant Leonel Ventura’s
motion to suppress evidence of marijuana discovered in the exterior luggage bin of a
commercial bus during an immigration checkpoint stop. We reverse.
I.
1
Leonel Ventura was a passenger on a commercial bus that arrived at a fixed
immigration checkpoint on Interstate 35 near Laredo, Texas in the early morning hours of
June 21, 2004. Routinely, two Border Patrol agents would perform bus inspections, with
one agent questioning the passengers and inspecting the restrooms for concealed persons
and drugs, while the other used a canine to sniff the bus and run through the exterior
luggage compartment, where hidden undocumented aliens were often discovered.
Because Ventura’s bus arrived at 12:30 a.m., at the moment an agent shift change
occurred, Agent Ian Clevenger, a canine handler, was the only agent available to conduct
the immigration inspection of the bus.
Agent Clevenger first entered the bus’s passenger compartment and conducted an
immigration inspection of the fifteen or so visible passengers, passing from front to back
asking citizenship and requesting documents if necessary. Ventura told the agent that he
was going to San Antonio and returning later that day and that he had no luggage. Agent
Clevenger later recalled that he found it “kind of awkward” that somebody would be
making such a brief round trip, but he did not question Ventura further.
After questioning the passengers and checking the restroom, Agent Clevenger left
the bus, got his canine and, opening the undercarriage luggage bins, commanded the dog
to get in and search. The dog, which was trained to detect both concealed people and
narcotics, alerted to two bags. Agent Clevenger later testified that approximately three
and one-half minutes elapsed between the time he began his questioning of the bus’s
passengers and the time the dog alerted in the luggage compartment.
2
Agent Clevenger got back on the bus and asked all the passengers to claim their
luggage. After this process, one of the two bags to which the dog had alerted remained
unclaimed. The bus driver declared the bag abandoned and Agent Clevenger opened it,
discovering three bundles of marijuana inside. The claim ticket on the bag revealed that
it had been loaded onto the bus in Laredo where, the passenger manifest revealed,
Ventura was one of only two people who had boarded. Ventura consented to being
searched and Agent Clevenger found the matching claim ticket to the offending bag in
Ventura’s shoe.1 The drug possession charges underlying this case followed.
Ventura moved to suppress the drug evidence on the grounds that the drug
evidence against him was the fruit of an illegally extended seizure. The district court
granted Ventura’s motion and the Government appeals.
II.
When analyzing a ruling on a motion to suppress, this court reviews questions of
law de novo and findings of fact for clear error. United States v. Portillo-Aguirre, 311
F.3d 647, 651-52 (5th Cir. 2002). In our review, we must view the evidence in the light
most favorable to Ventura, as the party that prevailed below. United States v. Ellis, 330
F.3d 677, 679 (5th Cir. 2003).
III.
In United States v. Martinez-Fuerte, 428 U.S. 543, 96 S. Ct. 3074 (1976), the
1
The second bag was claimed by Ventura. That bag was searched later, after
Ventura’s arrest, and no drugs were found inside.
3
Supreme Court upheld the constitutionality of immigration checkpoints at which
government agents stop travelers without individualized suspicion for questioning about
immigration status. We have recognized that the scope of such immigration checkpoint
stops “is limited to the justifying, programmatic purpose of the stop: determining the
citizenship status of persons passing through the checkpoint.” United States v. Machuca-
Barrera, 261 F.3d 425, 433 (5th Cir. 2001). “The permissible duration of an immigrant
checkpoint stop is therefore the time reasonably necessary to determine the citizenship
status of the persons stopped.” Id. 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.
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 the initial lawful stop creates a
reasonable suspicion warranting further investigation. Id. Accordingly, illegal drug
interdiction may be carried out at immigration checkpoints, though not as the primary
purpose of those checkpoints. Id. at 431. In this vein, we have recognized that the use of
drug-sniffing dogs at immigration stops is permissible so long as such use does not
lengthen the stop beyond the time necessary to verify the immigration status of a
vehicle’s passengers. United States v. Garcia-Garcia, 319 F.3d 726, 730 (5th Cir.
4
2003).
IV.
While Ventura does not challenge the legality of the initial immigration stop, he
argues that the agent violated his Fourth Amendment rights by extending the detention to
conduct a search for drugs, after the lawful immigration purpose of the stop had
terminated. Ventura contends that the legitimate immigration purpose of the checkpoint
stop ended when Agent Clevenger, satisfied that all visible passengers aboard the bus
were lawfully present in the country, exited the passenger compartment; and thus,
Ventura was unlawfully detained without reasonable suspicion, probable cause, or
consent, while the exterior luggage bins were inspected.
The Government responds that since agents routinely ran a trained canine through
the exterior luggage compartment to detect any concealed persons, this action did not
unlawfully extend the stop. The Government argues that, because detection and
interdiction of concealed, undocumented aliens is just as much a part of the immigration
inspection as questioning the visible passengers on a bus, the immigration purpose of the
stop had not yet been completed at the time the dog alerted to luggage in the exterior bin.
The general question then is whether the Border Patrol agent unlawfully extended
the immigration checkpoint stop beyond its permissible duration. Our inquiry as to the
constitutionality of the stop’s duration considers only Agent Clevenger’s actions up to the
point at which Ventura consented to a search of his person, as after the defendant
consents, the agent needs no justification to prolong the encounter. Machuca-Barrera,
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261 F.3d at 435. Ventura characterizes this inquiry as factual, relying on our decision in
United States v. Chacon, 330 F.3d 323 (5th Cir. 2003). We disagree.
Chacon was remanded because the district court had not made an explicit factual
finding as to whether the agent had completed his immigration inspection at the time
further questioning aimed at drugs occurred. Id. at 329. However, in Chacon all of the
actions of the agent in question took place in the passenger compartment of the
commercial bus on which Chacon was riding. Id. at 325. Another agent was
contemporaneously conducting the exterior luggage bin inspection. Id. Thus, the
subjective inquiry as to when the top side agent was satisfied that the compartment
contained only legal travelers was important to the determination of whether he switched
his focus to drug interdiction after his immigration purposes were complete. Here, it is
undisputed that Agent Clevenger had satisfied himself that the visible passengers riding
on the top side of the bus were lawfully present in the United States but, absent a partner,
he went on to inspect the exterior luggage bins himself.
We believe the inquiry in this case is broader, considering whether Agent
Clevenger’s general method of inspection passes constitutional muster. The legal
question presented is whether an agent’s satisfaction with the status of the visible
passengers of a bus concludes the permissible scope of a checkpoint stop; or, in other
words, whether the sweep for persons hidden in the exterior luggage compartment of a
commercial bus is within the programmatic purpose of a Border Patrol checkpoint and
concomitant immigration inspection.
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V.
The Supreme Court has recognized that the principal problem with illegal
immigration arises from surreptitious entries. Martinez-Fuerte, 428 U.S. at 552, 96 S. Ct.
at 3080. Martinez-Fuerte specifically identified the smuggling of hidden aliens as a
legitimate concern justifying the existence of fixed immigration checkpoints. Id. at 552,
556-57. The Sentencing Commission has specified such conduct as deserving of a
sentence enhancement for reckless endangerment. U.S. SENTENCING GUIDELINES
MANUAL § 2L1.1, cmt. n.6 (2005).
Policy considerations notwithstanding, Ventura asserts that, because the Supreme
Court in Martinez-Fuerte stated that “the inspection of a vehicle is limited to what can be
seen without a search” (429 U.S. at 558, 96 S. Ct. at 3083), the scope of a suspicionless
immigration check is limited to the visible passengers in the bus. Ventura apparently
concludes that, since the exterior luggage compartments are not readily visible, any
inspection of those compartments is ancillary to the top side immigration check and must
be completed before the quiz of the visible passengers is finished to avoid prolonging the
detention. If the law were otherwise, Ventura asserts, the Border Patrol would be able to
search every trunk and compartment in every vehicle that passed through the checkpoint,
even if there were no reasonable suspicion that the travelers were engaged in illegal
activity and no question as to their immigration status.
The district court recognized that Ventura’s argument, carried to its logical
conclusion,
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would mean that a Border Patrol agent could never look in a bus restroom
or in its baggage compartment. Such a restriction would seriously impair
the efficacy of permanent checkpoint stops: if an illegal alien could escape
detection by merely hiding in the bathroom, between the seats, or in a
luggage bin, the inspection would be a mere farce.
The district court, while conceding its flaws, nonetheless appears to have been swayed by
Ventura’s “simultaneous with passenger quiz or not at all” rule for exterior luggage
compartment sweeps, finding that the immigration-related purpose of the stop terminated
when the passenger questioning was complete. We agree with the Government that
Ventura’s argument, and the result adopted by the district court, constitutes an incorrectly
narrow view of the programmatic purpose of fixed immigration checkpoints and ignores
the distinctions between private and commercial inspections.
VI.
As we have recognized, “[p]assengers 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.” Portillo-Aguirre, 311
F.3d at 652 (citing Florida v. Bostick, 501 U.S. 429, 438, 111 S. Ct. 2382 (1991)).
However, the practical and legal realities of inspecting a commercial bus differ from
inspections of private vehicles.
First, the sheer mechanics of immigration inspections of commercial buses and
private vehicles are different. At the Interstate 35 checkpoint, as at most similar
immigration checkpoints, all commercial buses are sent to a special lane for inspection,
where an agent actually boards the vehicle and walks down the center aisle, observing all
8
open spaces and talking to passengers along the way. It is not practical to literally apply
the Martinez-Fuerte restriction on inspection to what and who agents can see and
question while standing on the pavement.
More importantly to this case, Martinez-Fuerte’s limitation of suspicionless
checkpoint inspections to visible spaces was premised on the privacy expectations of
private motorists in their vehicles. 428 U.S. at 558-60, 96 S.Ct. at 3083. Consistent with
this limitation, Agent Clevenger testified that the Border Patrol does not open and search
the luggage compartments of passenger cars unless there is reasonable suspicion to do so.
Ventura had no reasonable expectation of privacy in the exterior luggage compartment of
a commercial bus, and therefore no standing to contest the actual inspection of that
compartment, to which the bus operator consented. See United States v. Hernandez-
Zuniga, 215 F.3d 483, 487 (5th Cir. 2000) (recognizing that consent to search and
seizure by controlling third party applies to immigration inspections of commercial
buses). Ventura’s individual bag, in which he maintained an expectation of privacy at the
time it was placed in the luggage bin, was not searched until the bag was determined to be
abandoned. See United States v. Castro, 129 F.3d 752, 758 (5th Cir. 1997)(citing United
States v. Seals, 987 F.2d 1102, 1106 (5th Cir. 1993) (recognizing that a dog sniff is not a
search within the meaning of the Fourth Amendment).
We have acknowledged and impliedly approved the routine sweep of commercial
bus restrooms during immigration checkpoint stops as falling within the programmatic
purpose of such stops. See, e.g., Portillo-Aguirre, 311 F.3d at 650 (noting that the
9
agent’s immigration inspection “included checking the bathroom at the back of the bus
for illegal aliens or narcotics”); Chacon, 330 F.3d at 323 (same). We perceive no
constitutional violation in the routine brief inspections of a bus’s restrooms and
undercarriage luggage bins for concealed aliens, so long as such sweeps do not unduly
prolong the checkpoint stop. To hold otherwise would encourage illegal aliens and alien
smugglers to conceal themselves and others in luggage, luggage compartments, engine
compartments, and other unsafe places in commercial buses in an effort to circumvent the
checkpoint inspection.
VII.
For the reasons we have stated above, immigration checkpoint agents are entitled
to sweep the restrooms and exterior luggage compartments of commercial buses so long
as (1) during the time frame those checks are conducted, the primary purpose remains
interdiction of illegal immigrants, and (2) the checks do not unreasonably prolong the
duration of the stop. Here, nothing about Agent Clevenger’s actions evinces a shift in the
primary purpose of the stop from enforcing immigration laws to drug interdiction up until
the time individualized suspicion arose. Agent Clevenger testified that his primary
purpose for getting off the bus and checking the luggage bins was the interdiction of
illegal immigration. He explained to the district court that he had found undocumented
aliens concealed in such luggage compartments, as well as inside of boxes and suitcases
on “many” prior occasions and that his canine was specifically trained to detect “[h]idden
people, first and foremost.” That Agent Clevenger and his dog were able to detect drugs
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simultaneously with concealed persons does not offend Martinez-Fuerte. Garcia-Garcia,
319 F.3d at 730; Portillo-Aguirre, 311 F.3d at 649. Once the dog alerted, Agent
Clevenger had sufficient reasonable suspicion to permit him to prolong the stop to
explore further the potential source of the dog’s alert. Garcia-Garcia, 319 F.3d at 730.
Since we have determined that the permissible duration of the stop was the amount
of time reasonably necessary for agents to question the visible passengers and conduct
brief checks of the bus’s restrooms and undercarriage luggage bins, the final
consideration is whether Agent Clevenger’s lone conduct of all of these inspection
components unreasonably extended the stop. We believe that it did not.
We have recognized that how an inspection is comported, i.e. the sequential steps
taken by an agent or agents when conducting same, may bear on whether the permissible
duration of an immigration stop has been exceeded. Garcia-Garcia, 319 F.3d at 730.
However, we have declined to establish a set script of immigration questioning to which
agents must adhere by rote, recognizing that, generally, it is the length of the detention,
not the questions asked, that makes a specific stop unreasonable. Chacon, 330 F.3d at
327, 328; Garcia-Garcia, 319 F.3d at 729; Machuca-Barrera, 261 F.3d at 433-34.
We are likewise reluctant to impose an inflexible sequence of actions that all
agents must follow in performing immigration inspections of commercial buses. Given
the gravity of its mandate, we are loath to dictate to the Border Patrol how to deploy its
limited resources and accomplish its legitimate mission. Circumstances vary and agents
must retain the flexibility to perform their statutory duties effectively, so long as they do
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so within constitutional parameters.
That Ventura’s bus happened to arrive at the moment a shift change occurred, such
that one agent consecutively (rather than two agents concurrently) conducted the upper
and lower compartment inspections, does not change the programmatic, and therefore
legal, nature of the stop. There is no evidence that a single agent performing the
inspections of both levels unduly prolonged the detention of the bus. The chain of events
leading to the canine alert, which in total lasted only a few minutes, lasted no longer than
necessary to fulfill the stop’s immigration-related purposes and, thus, the detention did
not violate the Fourth Amendment.
VIII. Conclusion
The Fourth Amendment and the case law of the Supreme Court and this circuit
permit Border Patrol Agents at fixed checkpoints to take the reasonable time necessary to
determine the number and citizenship of the individuals passing through the checkpoint.
The immigration purpose of such checkpoints is not necessarily complete when an agent
becomes satisfied as to the immigration status of the visible occupants of a commercial
bus’s passenger compartment. Agents are entitled to briefly check for concealed persons
in the bus’s other common areas, including the restrooms and undercarriage luggage bins,
so long as the concomitant detention of the bus and its passengers is brief and reasonable.
Up to the time the canine alerted, at which time reasonable suspicion to extend the
stop to look for drugs arose, Agent Clevenger’s actions neither strayed from the
programmatic purpose of the stop — interdiction of illegal immigrants — nor unduly
12
prolonged it. Accordingly, the checkpoint detention of Ventura and his fellow passengers
did not exceed its permissible duration. Because the drug evidence against Ventura was
not the fruit of an illegally extended seizure, the district court wrongly granted the motion
to suppress.
REVERSED AND REMANDED
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