Fifth Circuit: Duration of Immigration Stop, Not the Questions Asked by Agents, Determines Its Constitutionality

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On May 26, 2017, Miguel Angel Vega-Torres was a passenger on a commercial bus that stopped at a border patrol checkpoint in Falfurrias, Texas. Border Patrol Agent David Gonzalez conducted an inspection of the bus at the checkpoint. During that inspection, Agent Gonzalez asked Vega-Torres for his citizenship documentation. Vega-Torres handed Agent Gonzalez his Legal Permanent Resident (“LPR”) card. Agent Gonzalez had a difficult time matching Vega-Torres’s face with the LPR card photo because Vega-Torres was occupied on his cell phone and made brief eye contact with Agent Gonzalez.

Agent Gonzalez extended his interview with Vega-Torres and asked him several questions to get Vega-Torres to sustain eye contact. After each response, Vega-Torres immediately returned to looking at his phone. Agent Gonzalez asked Vega-Torres where he was from, where he was heading, and the purpose of his trip. After Vega-Torres told Agent Gonzalez that he was heading to San Antonio, Agent Gonzalez asked Vega-Torres where in San Antonio he was heading, and Vega-Torres responded “San Antonio.”

Agent Gonzalez later testified in a suppression hearing that he believed Vega-Torres was “probably okay for immigration purposes,” but “believed something else was off.” At the suppression hearing, Agent Gonzalez testified he noticed a trend of smugglers wearing baggy shorts to conceal contraband on the back of their thighs, and Vega-Torres’s shorts were consistent with this trend. As a result, Agent Gonzalez asked Vega-Torres for consent to search him, and Vega-Torres consented to the search.

Agent Gonzalez patted Vega-Torres’s thigh and felt a solid edge, consistent with a bundle of drugs. He then observed Vega-Torres become “jittery” or “nervous.” Agent Gonzalez asked Vega-Torres to step out of the bus. Agent Gonzalez searched Vega-Torres outside of the bus and found four bundles of cocaine taped to Vega-Torres’s thighs.

Vega-Torres was charged with one count of possession with intent to distribute over 500 grams of cocaine. Vega-Torres moved to suppress the evidence obtained during the search, and the district court denied the motion. The district court found that the search did not exceed the permissible scope of an immigration stop, and that the government met its burden that Vega-Torres’s consent was voluntary. Vega-Torres entered a conditional guilty plea, and was sentenced to 60 months’ imprisonment.

Vega-Torres appealed the district court’s order denying the suppression motion to the U.S. Court of Appeals for the Fifth Circuit. Vega-Torres argued that the district court erred in denying his motion to suppress because Agent Gonzalez exceeded the permissible scope of the stop and unconstitutionally prolonged his detention.

Relying on Rodriguez v. United States, 135 S. Ct. 1609 (2015), Vega-Torres argued that Agent Gonzalez’s interview was unconstitutional because Agent Gonzalez failed to “[e]xpeditiously and diligently conduct the interview to accomplish the programmatic immigration purpose of the stop.”

The court stated “Border Agents may conduct ‘suspicionless seizures of motorists’ for immigration checks at fixed Border Patrol checkpoints.” To determine the lawfulness of a stop under the Fourth Amendment, the court stated that it asks whether the seizure exceed its permissible duration. In doing so the court looks at the time necessary to ascertain the number and identity of the occupants of the vehicle, inquire about citizenship status, request proof of citizenship, and request consent to extend the detention.

The court stated that “[w]ithin [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.” The court then said that if the initial, routine questioning generates reasonable suspicion of other criminal activity, the agent may extend the stop and investigate these non-immigration matters.

The court held that Vega-Torres’s claim failed. The court explained that Agent Gonzalez’s questions related to Vega-Torres’s citizenship status, the length of the detention lasted several minutes before Agent Gonzalez requested and received consent to search, and Agent Gonzalez had reasonable suspicion to extend the stop based on Vega-Torres’s behavior. The court said that Rodriguez does not dictate a script that agents must follow when conducting immigration stops.

As such, the court did 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.

Read the full case: United States v. Vega-Torres

This case law update was written by Michael J. Sgarlat, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update