Petition for Writ of Certiorari — Rafael Tello, Petitioner v. United States

Supreme Court briefAug 13, 2019

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No. __________

IN THE SUPREME COURT OF THE UNITED STATES

RAFAEL TELLO,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

__________________________________

PETITION FOR WRIT OF CERTIORARI

__________________________________

MARJORIE A. MEYERS

Federal Public Defender

Southern District of Texas

SCOTT A. MARTIN

Assistant Federal Public Defender

Attorneys for Appellant

440 Louisiana Street, Suite 1350

Houston, Texas 77002-1056

Telephone: (713) 718-4600

QUESTION PRESENTED

This petition presents the following important question of federal law, on which the

United States courts of appeals are split, that should be settled by the Court at this time:

May a Border Patrol agent working in the primary inspection lane of an interior

immigration checkpoint extend the immigration stop beyond the “brief question or two and

possibly the production of a document evidencing the right to be in the United States”

permitted by United States v. Martinez-Fuerte, 428 U.S. 543, 558 (1976), without

reasonable suspicion of an immigration violation or other crime, to allow time for a Border

Patrol service canine to complete a free-air sniff of the vehicle?

PARTIES TO THE PROCEEDINGS

All parties to petitioner’s Fifth Circuit proceedings are named in the caption of the

case before this Court.

LIST OF DIRECTLY RELATED CASES

None.

TABLE OF CONTENTS

Page

QUESTION PRESENTED .................................................................................................. i

PARTIES TO THE PROCEEDING ................................................................................... ii

LIST OF DIRECTLY RELATED PROCEEDINGS .......................................................... ii

TABLE OF CONTENTS ................................................................................................... iii

TABLE OF CITATIONS ................................................................................................... iv

PRAYER ............................................................................................................................. 1

OPINIONS BELOW ........................................................................................................... 1

JURISDICTION .................................................................................................................. 1

CONSTITUTIONAL PROVISION INVOLVED .............................................................. 2

STATEMENT OF THE CASE ........................................................................................... 3

I. Procedural Background ....................................................................................... 3

II. Statement of Relevant Facts ............................................................................... 4

BASIS OF FEDERAL JURISDICTION IN THE

UNITED STATES DISTRICT COURT ........................................................................... 7

REASONS FOR GRANTING THE PETITION ................................................................ 8

CONCLUSION ................................................................................................................. 17

APPENDIX: Opinion of the Court of Appeals,

United States v. Tello, 924 F.3d 782

(5th Cir. 2019) ................................................................................................................. 18

iii

TABLE OF CITATIONS

Page

CASES

City of Indianapolis v. Edmond, 531 U.S. 32 (2000) ......................................................... 9

Florida v. Royer, 460 U.S. 491 (1983) ............................................................................. 10

Illinois v. Caballes, 543 U.S. 405 (2005) ......................................................................... 11

Knowles v. Iowa, 525 U.S. 113 (1998) ............................................................................. 11

Rodriguez v. United States, 135 S. Ct. 1609 (2015) .............................................. 5-6, 8-11

Terry v. Ohio, 392 U.S. 1 (1968) ...................................................................................... 10

United States v. Brignoni-Ponce, 422 U.S. 873 (1975) ..................................................... 9

United States v. Machuca-Barrerra, 261 F.3d 425

(5th Cir. 2001) .................................................................................................................. 6

United States v. Martinez-Fuerte, 428 U.S. 543 (1976) ........................................... passim

United States v. Massie, 65 F.3d 843

(10th Cir. 1995) ............................................................................................................... 13

United States v. Soyland, 3 F.3d 1312, 1316

(9th Cir. 1993) ................................................................................................................ 14

United States v. Taylor, 934 F.2d 218

(9th Cir. 1991) ................................................................................................................. 12

United States v. Tello, 924 F.3d 782

(5th Cir. 2019) ......................................................................................................... passim

United States v. Vallejo, 72 Fed. Appx. 129, 2019 WL 2494535

(5th Cir. June 14, 2019) (unpublished) ............................................................................ 12

CONSTITUTIONAL PROVISION

U.S. Const. amend. IV ........................................................................................................ 2

TABLE OF CITATIONS – (Cont’d)

Page

STATUTES AND RULES

8 U.S.C. § 1324(a)(1)(A)(ii) ................................................................................................ 3

8 U.S.C. § 1324(a)(1)(A)(v)(II) .......................................................................................... 3

8 U.S.C. § 1324(a)(1)(B)(ii) ............................................................................................... 3

8 U.S.C. § 1329 .................................................................................................................. 7

18 U.S.C. § 3231 ................................................................................................................ 7

28 U.S.C. § 1254(1) ............................................................................................................ 1

Sup. Ct. R. 10(a) .......................................................................................................... 13, 16

Sup. Ct. R. 10(c) .......................................................................................................... 13, 16

Sup. Ct. R. 13.1.................................................................................................................... 1

MISCELLANEOUS

Cedar Attanasio, Associated Press, U.S. Shuts Interior Checkpoints to

Focus on Mexico Border, available at: https://www.foxnews.com/us/usshuts-interior-checkpoints-to-focus-on-mexico-border................................................... 15

Eric Westervelt, National Public Radio (NPR), As Migrants Stream in at the Border,

Inland Checkpoints Feel the Strain, available at: https://www.npr.org/2019/06/12/

731797754/as-migrants-stream-in-at-the-border-inland-checkpoints-feel-the-strain ............ 15

Robert Moore, Border Patrol Inland Checkpoints Shut Down So Agents Can Help

Process Asylum Seekers, Texas Monthly (March 23, 2019), available at:

https://www.texasmonthly.com/news/border-patrol-inland-checkpointsshut-down-so-agents-can-help-process-asylum-seekers/ ........................................... 14-15

TABLE OF CITATIONS – (Cont’d)

Page

MISCELLANEOUS – (Cont’d)

Simon Romero, Border Patrol Takes a Rare Step in Shutting Down Inland Checkpoints,

N.Y. Times (March 25, 2019), available at:

https://www.nytimes.com/2019/03/25/us/border-checkpoints-texas.html ..................... 14

U.S. Customs and Border Protection, U.S. Border Patrol Nationwide Checkpoint

Drug Seizures in Pounds, available at: https://www.cbp.gov/newsroom/stats/

cbp-enforcement-statistics/usbp-drug-seizures-sector ........................................................ 15

U.S. Government Accountability Office, Report to Congressional Requesters

(GAO-18-50), Border Patrol, Issues Related to Agent Deployment Strategy

and Immigration Checkpoints, available at: https://www.gao.gov/assets/690/688201.pdf .... 15

PRAYER

Petitioner Rafael Tello prays that a writ of certiorari be granted to review the

judgment entered by the United States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The Westlaw version of opinion of the United States Court of Appeals for the Fifth

Circuit in Mr. Tello’s case is attached to this petition as the Appendix. The district court

did not issue a written opinion.

JURISDICTION

The Fifth Circuit’s judgment and opinion was entered on May 21, 2019. See

Appendix. This petition is filed within 90 days after entry of the judgment. See Sup. Ct. R.

13.1. This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the United States Constitution provides in

pertinent part:

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated[.]

U.S. Const. amend. IV.

STATEMENT OF THE CASE

Procedural Background

On August 23, 2017, a federal grand jury in the Corpus Christi Division of the

United States District Court for the Southern District of Texas returned a three-count

indictment charging Rafael Tello, in each count, with transporting an illegal alien within

the United States by means of a motor vehicle in violation of 8 U.S.C. § 1324(a)(1)(A)(ii)

and (v)(II) and (B)(ii). The aliens were found hidden in a storage compartment beneath the

bed in the sleeper area of the tractor-trailer that Mr. Tello was driving, after he was stopped

at the interior immigration checkpoint located near Falfurrias, Texas. 1

On November 16, 2017, the case proceeded to a jury trial on the first two counts.

During the one-day trial, the government presented the testimony of two Border Patrol

agents and two of the three aliens found under the bed in the tractor. Mr. Tello did not

testify or present any witness in his defense.

Midway through the trial, after the two Border Patrol agents had testified, Mr. Tello

moved to suppress the evidence found during the immigration-checkpoint stop. He argued

that the agents’ testimony demonstrated that they had impermissibly extended the

checkpoint stop beyond its limited immigration purpose before procuring his consent to

search the tractor-trailer. The district court denied the motion.

The jury found Mr. Tello guilty of both counts. Thereafter, on April 11, 2018, the

district court sentenced him to concurrent terms of 27 months’ imprisonment and two

The Falfurrias checkpoint, which is on Highway 281 in Texas, is one of 34 permanent

interior checkpoints near the southern border. Falfurrias is roughly 70 miles north of the border.

years’ supervised release. The court imposed no fine but did impose a $100 special

assessment for each count of conviction, for a total of $200.

Mr. Tello timely appealed the district court’s denial of his motion to suppress. The

Fifth Circuit affirmed in a published opinion, United States v. Tello, 924 F.3d 782 (5th Cir.

2019). See Appendix.

II.

Statement of Relevant Facts

The facts relevant to Mr. Tello’s appeal of the district court’s denial of his motion

to suppress, as set forth by the Fifth Circuit in its opinion, were as follows:

Shortly before 1:00 a.m. on August 1, 2017, a tractor-trailer entered

the primary inspection lane at the U.S. Border Patrol checkpoint south of

Falfurrias, Texas. Agent Villanueva was on duty in the primary inspection

lane. A Border Patrol service canine and its handler were working with him.

Tello was driving the tractor-trailer. Agent Villanueva’s first question

was: “[A]re you a citizen – are you a United States citizen?” He replied that

he was a naturalized citizen. Agent Villanueva was satisfied with this answer

so he did not ask for proof of citizenship.

Agent Villanueva next asked Tello what he was hauling in the trailer.

He asked this question to give the Border Patrol service canine more time to

conduct a canine sniff of the tractor-trailer:

Because at that point, kind of I looked – because usually when

I start [questioning], I also keep in mind that I have the K9

handler working with me; because sometimes, you know, the

vehicles coming up to our inspection, and the dog might be

alerting right away, but – and sometimes, we question these

occupants. And we might be doing a simple question, so we

might relieve the vehicle right away. But at this time, the K9

[handler] kind of glanced over at me, you know, give me a little

bit more time. So that’s kind of why I questioned a little bit

more.

Tello answered that he was hauling carrots and handed the agent a bill

of lading. Agent Villanueva asked him whether he had made any stops after

loading the carrots in the trailer. Tello answered that he was coming from

Pharr, Texas and had not made any stops. Agent Villanueva testified that

Tello did not appear to be nervous and there was no indication that he was

hiding anything.

The canine handler told Agent Villanueva that he needed to send the

tractor-trailer to the secondary inspection area. The agent then asked Tello

for consent to search and backscatter (x-ray) the tractor-trailer, and he agreed.

This happened about 30 seconds into the checkpoint stop.

In the secondary inspection area, another agent (Agent Reyes)

boarded the tractor-trailer to conduct a physical inspection in advance of the

backscatter inspection, a routine precaution to minimize the risk of exposing

possible occupants to radiation. Under the bed in the sleeper area of the

tractor-trailer was a small hole through which Agent Reyes could see a

person’s torso. He unlatched the bed and found three persons hiding in the

storage compartment. These persons were citizens of Honduras who were

illegally present in the United States.

Tello, 924 F.3d at 785-86.

On appeal Mr. Tello contended, as he did in the district court, that Agent Villanueva

unlawfully prolonged the immigration stop by extending the stop beyond the “brief

question or two and possibly the production of a document evidencing the right to be in the

United States” permitted by United States v. Martinez-Fuerte, 428 U.S. 543, 558 (1976),

and embarking on the type of “detour” that “adds time to the stop,” which is prohibited by

Rodriguez v. United States, 135 S. Ct. 1609, 1615-16 (2015). See Brief for Appellant,

United States v. Tello, 924 F.3d 782 (5th Cir. 2019) (No. 18-40347), 2018 WL 4522494,

at *10-20. He also contended that his consent to the search did not dissipate the taint of the

Fourth Amendment violation, as there were no intervening circumstances between the

violation and the consent (and, therefore, the consent was not an “independent act of free

will”). See Brief for Appellant, supra at *20-21.

The Fifth Circuit rejected these arguments. The court first noted, “We have avoided

scrutinizing the questions a Border Patrol agent asks at the checkpoint, instead focusing on

the duration of the stop.” Tello, 924 F.3d at 786-87 (citing United States v. MachucaBarrerra, 261 F.3d 425, 434 (5th Cir. 2001)). “The critical question,” it stated, is “whether

conducting the sniff prolongs the purpose of the stop.” Tello, 924 F.3d at 787. It then

decided that the stop was not impermissibly prolonged because a canine sniff is “relevant

to the purpose of the stop” and the total duration of the stop, from when the vehicle

appeared at the checkpoint until the dog alerted and Mr. Tello consented to a search, was

only about 30 seconds. Id. at 787-89.

In support of its decision, the court noted that Rodriguez allows for stops of

“tolerable duration” and, under Martinez-Fuerte, “an immigration stop may take up to five

minutes.” Id. It dismissed Mr. Tello’s concerns about the agent’s particular purpose for

asking him these additional questions about his itinerary and cargo; questions about

“citizenship, cargo and travel” are “permissible,” it reasoned, because they are

“commonplace for an agent to ask.” Tello, 924 F.3d at 787.

Finally, the court decided that Mr. Tello validly consented to the search of his

tractor-trailer. Tello, 924 F.3d at 789. Its conclusion was based in part on its earlier

determination that the agent “did not unreasonably seize Tello.” Id.

BASIS OF FEDERAL JURISDICTION IN THE

UNITED STATES DISTRICT COURT

The district court had jurisdiction pursuant to 8 U.S.C. § 1329 and 18 U.S.C. § 3231.

REASONS FOR GRANTING THE PETITION

In this case a Border Patrol agent working in the primary inspection lane of an

interior immigration checkpoint asked Mr. Tello, “[A]re you a citizen – are you a United

States citizen?” He replied that he was a naturalized citizen. The agent was satisfied with

this answer so he did not ask for proof of citizenship. Nonetheless, the agent continued

asking Mr. Tello questions about his itinerary and the cargo he was carrying in the tractortrailer he was driving. He did so to allow time for a Border Patrol service canine to complete

a free-air sniff of the tractor-trailer. Tello, 924 F.3d at 785-86.

The Fifth Circuit held that this immigration-checkpoint stop was not

impermissibly prolonged in violation of the Fourth Amendment because a canine sniff is

“relevant to the purpose of the stop” and the total duration of the stop, from when the

vehicle appeared at the checkpoint until the dog alerted and Mr. Tello consented to a search,

was only about 30 seconds. Id. at 787-89. It noted that Rodriguez allows for stops of

“tolerable duration” and, under Martinez-Fuerte, “an immigration stop may take up to five

minutes.” Id.

This case thus presents the following question: May a Border Patrol agent working

in the primary inspection lane of an interior immigration checkpoint extend the

immigration stop beyond the “brief question or two and possibly the production of a

document evidencing the right to be in the United States” permitted by Martinez-Fuerte,

428 U.S. at 558, without reasonable suspicion of an immigration violation or other crime,

to allow time for a Border Patrol service canine to complete a free-air sniff of the vehicle?

This Court has provided very little guidance on this question. In Martinez-Fuerte,

this Court justified the authorization of interior immigration checkpoints by balancing the

public interest in controlling illegal immigration near the border against the limited nature

of the intrusion upon individuals resulting by the checkpoint stops. See 428 U.S. at 55660; see also City of Indianapolis v. Edmond, 531 U.S. 32, 38-39 (2000). First, the Court

determined that “the flow of illegal aliens cannot be controlled effectively at the border,”

making interior checkpoints a reasonable method of controlling that flow. See MartinezFuerte, 428 U.S. at 556-57; see also Edmond, 531 U.S. at 38-39. Second, the checkpoint

stops approved by the Court were brief, minimal intrusions on the interests of motorists.

See Martinez-Fuerte, 428 U.S at 556-60; see also Edmond, 531 U.S. at 38.

Martinez-Fuerte observed that stops at interior immigration checkpoints should

require only “a response to a brief question or two and possibly the production of a

document evidencing the right to be in the United States.” Martinez-Fuerte, 428 U.S. at

558 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 880 (1975)). These stops

“should not be frightening or offensive,” causing nothing more than “some annoyance.”

Martinez-Fuerte, 428 U.S. at 560. And, “the inspection is limited to what can been seen

without a search.” Id. at 558.

More recently, in Rodriguez, the Court made clear that the permissible duration of

any non-arrest detention is firmly linked to its justifying purpose, and is limited to “the

time needed to handle the matter for which the stop was made.” 135 S. Ct. at 1612. “The

scope of the detention must be carefully tailored to its underlying justification” and “may

last no longer than is necessary to effectuate that purpose.” Id. at 1614 (quoting Florida v.

Royer, 460 U.S. 491, 500 (1983)); see also Terry v. Ohio, 392 U.S. 1, 20 (1968) (officer’s

action must be “justified at its inception” and “reasonably related in scope to the

circumstances which justified the interference in the first place”). Authority for the seizure

ends when tasks tied to the original purpose of the stop “are—or reasonably should have

been—completed.” Rodriguez, 135 S. Ct. at 1614 (emphasis added).

Rodriguez also held that an officer may not investigate crimes different from the

original purpose of the stop in a way that extends the stop. See Rodriguez, 135 S. Ct. at

1615-16. Instead, the Court recognized that “[o]n scene investigation into other crimes,”

different from the original justification for the stop, “detours from that mission” and

renders a stop unlawful if such a detour “adds time to the stop.” Id. at 1615. Although an

officer may perform unrelated tasks during an otherwise lawful stop, “he may not do so in

a way that prolongs the stop,” absent independent reasonable suspicion to do so. Id. at

1615. Importantly, this no-detour principle applies regardless of the length of time added

to the stop. See id. at 1615-16.

Lastly, in Rodriguez, the Court specifically rejected the principle that the

reasonableness of the length of a stop could be judged by reference to some objective

standard of the length of time a particular sort of stop should take, but instead must be

judged by the officer’s actual diligence in pursuing the purpose of the stop. See Rodriguez,

135 S. Ct. at 1616. The Court expressly rejected the approach taken by the Eighth Circuit,

which approved traffic stops as reasonable regardless of what actions the officer took

unrelated to the purpose of the stop, so long as the overall stop lasted approximately as

long as other stops of that kind and any additional intrusion was de minimis. See id. at

1615-16. Instead, the Court emphasized that an officer “always has to be reasonably

diligent” in his investigation, and held that “[t]he reasonableness of a seizure . . . depends

on what the police in fact do.” Id. at 1616 (citing Knowles v. Iowa, 525 U.S. 113, 115-17

(1998)). If an officer can complete inquiries about the underlying justification for the stop

“expeditiously,” then “that is the amount of ‘time reasonably required to complete the

stop’s mission.’” Rodriguez, 135 S. Ct. at 1616 (citing Illinois v. Caballes, 543 U.S. 405,

407 (2005)). An officer may not earn “bonus time” to investigate whatever he wants by

completing the original mission of the stop more quickly than usual, and then using

additional time to pursue an unrelated investigation. See Rodriguez, 135 S. Ct. at 1616.

In the wake of Martinez-Fuerte and Rodriguez, one would expect that a court judging

the constitutionality of a stop at an interior immigration checkpoint would scrutinize the nature

and purpose of the primary agent’s questions to determine whether that agent prolonged the

stop beyond the “brief question or two and possibly the production of a document evidencing

the right to be in the United States” permitted by Martinez-Fuerte, 428 U.S. at 558, and

embarked on the type of “detour” that “adds time to the stop,” which is prohibited by

Rodriguez, 135 S. Ct. at 1615-16. Additional questioning that is designed to buy time for a

Border Patrol service canine to complete a free-air sniff of the vehicle would certainly seem to

be a “detour” adding time to the stop, especially since “the inspection is limited to what can

be seen without a search.” Martinez-Fuerte, 428 U.S. at 560 (emphasis added).

But the Fifth Circuit takes a different approach. It simply asks whether the duration

of the immigration checkpoint stop was “tolerable” in the sense that it was “circumscribed

by the reason for the stop,” bearing in mind that an immigration checkpoint stop may take

up to five minutes. See Tello, 924 F.3d at 787-89; United States v. Vallejo, 772 Fed. Appx.

129, 2019 WL 2494535, at *1 (5th Cir. June 14, 2019) (unpublished) (same). 2 And

according to the Fifth Circuit, a canine sniff is “relevant to the purpose of the stop” and

“fits squarely within the officials’ discretion when conducting their inspection,” even if

there is no articulable suspicion of an immigration violation or other crime. Tello, 924 F.3d

at 789.

On the latter point, the Fifth Circuit’s approach is in direct conflict with that of the

Ninth and Tenth Circuits. The Ninth Circuit has held that a brief further detention,

following completion of an immigration inspection, to allow a dog “trained to alert to

hidden persons or narcotics” to sniff the vehicle must “be predicated on an articulable

suspicion, or a minimal showing of suspicion, of criminal activity.” United States v. Taylor,

934 F.2d 218, 219, 221 (9th Cir. 1991) (cleaned up and internal citation omitted); see, e.g.,

id. (holding that a Border Patrol agent’s observation that motorist became increasingly

nervous and uneasy at end of initial check for illegal aliens constituted minimal, articulable

suspicion necessary to justify brief further delay for dog sniff). The Tenth Circuit has

similarly recognized that, in this context, further detention for the purpose of conducting a

Martinez-Fuerte recognized that the “the average length of an investigation in the

secondary inspection area [of the San Clemente checkpoint in 1976] is three to five minutes.”

Martinez-Fuerte, 428 U.S. at 546-47.

canine sniff must be based on reasonable suspicion, consent, or probable cause. See United

States v. Massie, 65 F.3d 843, 848 (10th Cir. 1995); see also id. (“Although consent is not

required for a dog sniff of a lawfully detained vehicle [at the checkpoint] . . . it is required

for continued detention beyond the lawful period.”) (cleaned up).

The Fifth Circuit’s opinion in this case is also in conflict with the law of the Tenth

Circuit insofar as it holds that questions about cargo and travel are always “permissible.”

Tello, 924 F.3d at 787. In the Tenth Circuit, questioning on “vehicle ownership, cargo,

destination, and travel plans” is permitted only “as long as such questions are reasonably

related to the agent’s duty to prevent the unauthorized entry of individuals into this country

and to prevent the smuggling of contraband.” Massie, 65 F.3d at 848 (internal citation

omitted).

Whether an agent may extend the checkpoint stop, without reasonable suspicion, to

allow time for a service canine to complete a free-air sniff of the vehicle is an important

question of federal law, on which the United States courts of appeals are split, that should

be settled by the Court at this time. See Sup. Ct. R. 10(a) & (c). “The principal protection

of Fourth Amendment rights at checkpoints lies in appropriate limitations on the scope of

the stop.” Martinez-Fuerte, 428 U.S. at 566-67. Appropriate limitations are crucial, as these

checkpoints “detain thousands of motorists” in “a dragnet-like procedure,” and “[t]he

motorist whose conduct has been nothing but innocent . . . surely resents his own detention

and inspection.” Id. at 571 (Brennan, J., dissenting).

This Court should address this important question now, rather than later, given the

“strong hints that the Constitution is being routinely violated at these checkpoints.” United

States v. Soyland, 3 F.3d 1312, 1316 1320 (9th Cir. 1993) (Kozinski, J., dissenting)

(“There’s reason to suspect the agents working these checkpoints are looking for more than

illegal aliens. If this is true, it subverts the rationale of Martinez-Fuerte and turns a

legitimate administrative search into a massive violation of the Fourth Amendment . . .

Given the strong hints that the Constitution is being routinely violated at these checkpoints,

we owe it to ourselves and the public we serve to look into the matter.”). Indeed, as was

reported in The New York Times earlier this year,

. . . [t]he agents at [these interior checkpoints] arrest relatively few

unauthorized migrants . . . The agents at the checkpoints deal largely with

seizures of marijuana and other drugs from motorists.

The checkpoints have emerged as a source of contention with human

rights groups, which have contended that Border Patrol agents routinely

ignore their legal authority during the traffic stops to search people without

warrants. By law, agents must have probable cause to search the interior of a

vehicle, though an alert from a drug-sniffing dog ‘legitimately’ alerts to the

presence of drugs, according to the American Civil Liberties Union.

Simon Romero, Border Patrol Takes a Rare Step in Shutting Down Inland Checkpoints, N.Y.

Times (March 25, 2019), available at: https://www.nytimes.com/2019/03/25/us/bordercheckpoints-texas.html (last visited July 30, 2019).

Other news sources have similarly reported that in recent years a primary use of these

fixed interior immigration checkpoints—including the Falfurrias checkpoint—has been drug

interdiction. See, e.g., Robert Moore, Border Patrol Inland Checkpoints Shut Down So Agents

Can Help Process Asylum Seekers, Texas Monthly (March 23, 2019), available at:

https://www.texasmonthly.com/news/border-patrol-inland-checkpoints-shut-down-so-agentscan-help-process-asylum-seekers/ (last visited Aug. 9, 2019) (“The primary use of the

checkpoints in recent years has been drug seizures . . . In fiscal year 2018, the Border Patrol

reported seizing 41,863 pounds of marijuana, 2,717 pounds of cocaine[,] 405 pounds of heroin,

6,366 pounds of methamphetamine[,] and 200 pounds of fentanyl at its checkpoints.[3]”); Cedar

Attanasio, Associated Press, U.S. Shuts Interior Checkpoints to Focus on Mexico Border,

available at: https://www.foxnews.com/us/us-shuts-interior-checkpoints-to-focus-on-mexicoborder (last visited July 30, 2019) (“While [interior immigration] checkpoints account for only

a sliver of Border Patrol arrests – 2 percent from 2013 to 2016, they also handled 43 percent

of drug busts during that time, according to the GAO.[4]”); Eric Westervelt, National Public

Radio (NPR), As Migrants Stream in at the Border, Inland Checkpoints Feel the Strain,

available

at:

https://www.npr.org/2019/06/12/731797754/as-migrants-stream-in-at-the-

border-inland-checkpoints-feel-the-strain (last visited July 30, 2019) (“Agents [at the

Falfurrias checkpoint] are also on the lookout for illegal drugs. The new checkpoint has more

drug-detecting dogs and new state-of-the-art technology to detect contraband or people.”).

To be sure, in Mr. Tello’s case the Fifth Circuit also decided that his consent to the

search was valid. Tello, 924 F.3d at 789. But this does not make his case a poor vehicle for

See U.S. Customs and Border Protection, U.S. Border Patrol Nationwide Checkpoint

Drug Seizures in Pounds, available at: https://www.cbp.gov/newsroom/stats/cbp-enforcementstatistics/usbp-drug-seizures-sector (last visited July 30, 2019) (reporting these drug seizures).

See U.S. Government Accountability Office, Report to Congressional Requesters (GAO18-50), Border Patrol, Issues Related to Agent Deployment Strategy and Immigration Checkpoints

(Nov. 2017), available at: https://www.gao.gov/assets/690/688201.pdf (last visited July 30, 2019).

deciding the question presented in his petition for certiorari. As noted above, the Fifth

Circuit’s rejection of his argument that his consent was not an “independent act of free

will” was based in part on its earlier determination that the agent “did not unreasonably

seize Tello.” Id. Since the Fifth Circuit’s decision on the validity of the consent was tainted

by its earlier determination that the seizure at the checkpoint was not unreasonably

prolonged, the issue of consent should be remanded for further consideration after this

Court decides the important issue that is presented in this petition for certiorari.

This Court should, therefore, grant Mr. Tello’s petition for certiorari to resolve this

important question concerning the Fourth Amendment’s limitations on the scope of

immigration-checkpoint stops. See Sup. Ct. R. 10(a) & (c).

CONCLUSION

The petition for a writ of certiorari should be granted.

Date: August 13, 2019

Respectfully submitted,

MARJORIE A. MEYERS

Federal Public Defender

Southern District of Texas

By ________________________

SCOTT A. MARTIN

Assistant Federal Public Defender

Attorneys for Petitioners

440 Louisiana Street, Suite 1350

Houston, Texas 77002-1056

Telephone: (713) 718-4600

United States v. Tello, 924 F.3d 782 (2019)

924 F.3d 782

United States Court of Appeals, Fifth Circuit.

Cases that cite this headnote

[2]

UNITED STATES of America, Plaintiff - Appellee

Rafael TELLO, Defendant - Appellant

Criminal Law

Reception of evidence

On appeal challenging denial of motion to

suppress, the Court of Appeals views evidence in

light most favorable to prevailing party.

No. 18-40347

FILED May 21, 2019

Cases that cite this headnote

Synopsis

Background: Defendant charged with transporting illegal

aliens within the United States by means of motor vehicle

moved to suppress evidence discovered during stop of his

vehicle at immigration checkpoint. The United States District

Court for the Southern District of Texas, Nelva Gonzales

Ramos, J., denied suppression motion and subsequently

convicted defendant as charged, and defendant appealed.

[3]

Holdings: The Court of Appeals, Carl E. Stewart, Chief

Judge, held that:

[4]

Criminal Law

Evidence wrongfully obtained

On appeal challenging denial of motion to

suppress, the Court of Appeals gives particular

deference to district court's findings where the

court’s denial of the suppression motion was

based on live testimony.

Cases that cite this headnote

Searches and Seizures

Fourth Amendment and reasonableness in

general

[1] questions that border patrol agent asked to driver

of tractor-trailer that had been stopped at immigration

checkpoint did not impermissibly extend this initial stop

without reasonable suspicion of criminal activity, and

Ordinarily, a search or seizure is unreasonable

under the Fourth Amendment in the absence

of individualized suspicion of wrongdoing. U.S.

Const. Amend. 4.

[2] defendant validly consented to search of vehicle at

secondary inspection site.

Cases that cite this headnote

[5]

Affirmed.

At a fixed immigration checkpoint, vehicles

may be briefly detained, and occupants

may be questioned, in furtherance of the

checkpoint's primary purpose of identifying

illegal immigrants, without the need for either

a warrant or any individualized reasonable

suspicion. U.S. Const. Amend. 4.

West Headnotes (16)

[1]

Criminal Law

Review De Novo

Cases that cite this headnote

Criminal Law

Evidence wrongfully obtained

On appeal challenging denial of motion to

suppress, the Court of Appeals reviews factual

findings for clear error and legal conclusions de

novo.

Aliens, Immigration, and Citizenship

Checkpoints

[6]

Aliens, Immigration, and Citizenship

Checkpoints

Permissible duration of stop at immigration

checkpoint includes time necessary to inquire

APPENDIX 1

United States v. Tello, 924 F.3d 782 (2019)

conducting the sniff prolonged the purpose of the

stop. U.S. Const. Amend. 4.

about citizenship status, ascertain number

and identity of vehicle’s occupants, request

documentation, and seek consent to extend the

detention. U.S. Const. Amend. 4.

1 Cases that cite this headnote

[7]

Cases that cite this headnote

[11]

Aliens, Immigration, and Citizenship

Checkpoints

Customs Duties

Scope and Nature; Successive or

Secondary Searches

In assessing validity of stop at immigration

checkpoint, courts will focus on duration of stop

and will not parse too closely the relevance of

the particular questions asked based on an afterthe-fact standard for admissibility at trial. U.S.

Const. Amend. 4.

Questions that border patrol agent asked to

driver of tractor-trailer that had been stopped

at immigration checkpoint, about what he was

hauling and whether he had made any stops,

after agent had already inquired about driver's

immigration status and been satisfied with his

answer that he was United States citizen, did

not impermissibly extend this initial stop without

reasonable suspicion of criminal activity, though

agent acknowledged that reason that he had

asked these questions, after agent was satisfied

with driver's citizenship status, was chiefly to

give dog that was in process of conducting sniff

more time to do so; questions were permissible,

and total duration of initial stop, from when

vehicle appeared at checkpoint until dog alerted

and driver consented to search at secondary

inspection site, was only about 30 seconds. U.S.

Const. Amend. 4.

1 Cases that cite this headnote

[8]

Aliens, Immigration, and Citizenship

Checkpoints

Stop at immigration checkpoint may not exceed

its permissible duration unless the officer has

reasonable suspicion. U.S. Const. Amend. 4.

Cases that cite this headnote

[9]

Aliens, Immigration, and Citizenship

Checkpoints

Customs Duties

Scope and Nature; Successive or

Secondary Searches

Border Patrol agents may conduct canine sniff

to search for drugs or concealed aliens at

immigration checkpoints, as long as the sniff

does not lengthen the stop beyond the time

necessary to verify the immigration status of

vehicle’s passengers. U.S. Const. Amend. 4.

Cases that cite this headnote

[12]

Aliens, Immigration, and Citizenship

Checkpoints

Critical question when assessing validity of

canine sniff conducted in connection with

stop at immigration checkpoint is not whether

the canine sniff occurred before or after the

purpose of the stop was completed, but whether

Aliens, Immigration, and Citizenship

Checkpoints

Questions about travel, including origin and

destination, are commonplace for agent to ask

during a stop at immigration checkpoint. U.S.

Const. Amend. 4.

Cases that cite this headnote

[10]

Aliens, Immigration, and Citizenship

Checkpoints

Cases that cite this headnote

[13]

Aliens, Immigration, and Citizenship

Checkpoints

Border patrol officers must have wide discretion

in selecting motorists to be diverted for brief

questioning at immigration checkpoints, and the

incidents of checkpoint operation also must be

19 U.S. Government Works.

United States v. Tello, 924 F.3d 782 (2019)

committed to discretion of such officials. U.S.

Const. Amend. 4.

Cases that cite this headnote

[14]

Arrest

Duration of detention and extent or conduct

of investigation or frisk

Fourth Amendment allows for investigatory

stops of a tolerable duration, a duration that is

circumscribed by the reason for the stop. U.S.

Const. Amend. 4.

Cases that cite this headnote

[15]

Aliens, Immigration, and Citizenship

Checkpoints

Customs Duties

Scope and Nature; Successive or

Secondary Searches

Driver of tractor-trailer to which dog alerted

at stop conducted at immigration checkpoint

validly consented to search of vehicle at

secondary inspection site, where border patrol

agents did not unreasonably seize driver and

were not holding any of driver’s documents, and

there was nothing in record to suggest that driver

did not voluntarily answer agents’ questions and

consent to their requests. U.S. Const. Amend. 4.

Cases that cite this headnote

[16]

Searches and Seizures

Custody, restraint, or detention issues

Whether consent to search given after an

unconstitutional detention is sufficient to

dissipate the taint of that prior detention is

analyzed under a two-pronged inquiry, based

on: (1) whether the consent was freely and

voluntarily given, and (2) whether the consent

was an independent act of free will. U.S. Const.

Amend. 4.

Cases that cite this headnote

*784 Appeal from the United States District Court for the

Southern District of Texas, Nelva Gonzales Ramos, U.S.

District Judge

Attorneys and Law Firms

Eileen K. Wilson, Carmen Castillo Mitchell, Assistant U.S.

Attorneys, U.S. Attorney's Office, Southern District of Texas,

for Plaintiff - Appellee.

Marjorie A. Meyers, Federal Public Defender, Scott Andrew

Martin, Assistant Federal Public Defender, Federal Public

Defender's Office, Southern District of Texas, Kathryn

Shephard, Federal Public Defender's Office, Southern District

of Texas, Houston, TX, for Defendant - Appellant.

Before STEWART, Chief Judge, and DAVIS and ELROD,

Circuit Judges.

Opinion

CARL E. STEWART, Chief Judge:

A federal grand jury returned a three-count indictment

charging Rafael Tello with transporting an illegal alien within

the United States by means of a motor vehicle. At an

immigration checkpoint, the aliens were found hidden in

a storage compartment in the sleeper area of the tractortrailer that Tello was driving. The case proceeded to trial

on the first two counts. Midway through the trial, after

the two Border Patrol agents had testified, Tello moved to

suppress the evidence found during *785 the immigrationcheckpoint stop. The district court denied the motion and the

jury found Tello guilty of both counts. Tello was sentenced to

concurrent terms of 27 months of imprisonment and two years

of supervised release. For the reasons below, we AFFIRM.

Shortly before 1:00 a.m. on August 1, 2017, a tractor-trailer

entered the primary inspection lane at the U.S. Border Patrol

checkpoint south of Falfurrias, Texas. Agent Villanueva was

on duty in the primary inspection lane. A Border Patrol

service canine and its handler were working with him.

Tello was driving the tractor-trailer. Agent Villanueva’s first

question was: “[A]re you a citizen – are you a United States

citizen?” He replied that he was a naturalized citizen. Agent

20 U.S. Government Works.

United States v. Tello, 924 F.3d 782 (2019)

Villanueva was satisfied with this answer so he did not ask

for proof of citizenship.

in the storage compartment. These persons were citizens of

Honduras who were illegally present in the United States.

Agent Villanueva next asked Tello what he was hauling in the

trailer. He asked this question to give the Border Patrol service

canine more time to conduct a canine sniff of the tractortrailer:

On August 23, 2017, a federal grand jury returned a threecount indictment charging Tello with transporting an illegal

alien within the United States by means of a motor vehicle in

violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(II) and (B)

(ii).

Because at that point, kind of I

looked – because usually when I start

[questioning], I also keep in mind that

I have the K9 handler working with

me; because sometimes, you know, the

vehicles coming up to our inspection,

and the dog might be alerting right

away, but – and sometimes, we

question these occupants. And we

might be doing a simple question,

so we might relieve the vehicle right

away. But at this time, the K9 [handler]

kind of glanced over at me, you know,

give me a little bit more time. So that’s

kind of why I questioned a little bit

more.

On November 16, 2017, the case proceeded to a jury

Tello answered that he was hauling carrots and handed the

agent a bill of lading. Agent Villanueva asked him whether

he had made any stops after loading the carrots in the trailer.

Tello answered that he was coming from Pharr, Texas and had

not made any stops. Agent Villanueva testified that Tello did

not appear to be nervous and there was no indication that he

was hiding anything.

The canine handler told Agent Villanueva that he needed to

send the tractor-trailer to the secondary inspection area. The

agent then asked Tello for consent to search and backscatter

(x-ray) the tractor-trailer, and he agreed. This happened about

30 seconds into the checkpoint stop.

In the secondary inspection area, another agent (Agent Reyes)

boarded the tractor-trailer to conduct a physical inspection in

advance of the backscatter inspection, a routine precaution to

minimize the risk of exposing possible occupants to radiation.

Under the bed in the sleeper area of the tractor-trailer was a

small hole through which Agent Reyes could see a person’s

torso. He unlatched the bed and found three persons hiding

trial on the first two counts. 1 During the one-day trial,

the government *786 presented Agents Villanueva’s and

Reyes’s testimony on the details of the immigrationcheckpoint inspection. Midway through the trial, after the

agents testified, Tello moved to suppress the evidence found

during the immigration-checkpoint stop. 2 Tello argued that

the agents had impermissibly extended the immigrationcheckpoint stop beyond its legitimate, limited immigration

purpose before asking him for his consent to search the

tractor-trailer.

The district court denied the motion to suppress. The jury

found Tello guilty of both counts. On April 11, 2018,

the district court sentenced him to concurrent terms of 27

months’ imprisonment and two years’ supervised release.

Tello appeals the district court’s denial of his motion to

suppress.

II.

[1]

[2]

[3] In reviewing the denial of a motion to

suppress, we review factual findings for clear error and legal

conclusions de novo. United States v. Rodriguez, 702 F.3d

206, 208 (5th Cir. 2012). We review the evidence “in the light

most favorable to the prevailing party.” United States v. Wise,

877 F.3d 209, 215 (5th Cir. 2017) (citation omitted). We give

particular deference to findings where the court’s denial of the

suppression motion was based on live testimony because the

judge had the opportunity to observe the witness’s demeanor.

United States v. Tovar, 719 F.3d 376, 384 (5th Cir. 2013);

see also United States v. Wright, 777 F.3d 769, 773 (5th Cir.)

(same), cert. denied, ––– U.S. ––––, 135 S. Ct. 2821, 192

L.Ed.2d 860 (2015).

III.

21 U.S. Government Works.

United States v. Tello, 924 F.3d 782 (2019)

[4] [5] [6] “The Fourth Amendment protects ‘[t]he right

Id. at 434 (footnote omitted); see also Jaime, 473 F.3d at 183

of the people to be secure in their persons, houses, papers,

(“[I]t is the length of the detention, not the questions asked,

and effects, against unreasonable searches and seizures.’ ”

that makes a specific stop unreasonable.”) (citation omitted);

District of Columbia v. Wesby, ––– U.S. ––––, 138 S. Ct.

United States v. Castille, 478 F. App'x 868, 869 (5th Cir.

577, 585, 199 L.Ed.2d 453 (2018) (brackets in original)

2012) (per curiam) (unpublished) (“The scope and duration of

(quoting U.S. Const. amend. IV). Ordinarily, a search or

the immigration checkpoint stop remained valid even though

seizure is unreasonable “in the absence of individualized

[the agent] had concluded that both [defendants] were United

suspicion of wrongdoing.” City of Indianapolis v. Edmond,

States citizens before he asked for consent to search.”).

531 U.S. 32, 37, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000)

(citation omitted). At a fixed checkpoint, however, which has

[9] [10] Border Patrol agents may conduct a canine sniff

as its primary purpose identifying illegal immigrants, vehicles

search for drugs or concealed aliens at immigration

may be briefly detained in furtherance of that purpose, and

checkpoints so long as the sniff does not lengthen the stop

the occupants questioned, without either a warrant or any

beyond the time necessary to verify the immigration status

individualized reasonable suspicion. United States v. Jaime,

of a vehicle’s passengers. United States v. Ventura, 447 F.3d

473 F.3d 178, 181 (5th Cir. 2006). The permissible duration

375, 378 (5th Cir. 2006). The critical question is not whether

of the stop includes the time necessary to inquire about

the canine sniff occurs before or after the purpose of the stop

citizenship status, ascertain the number and identity of the

is completed, but whether conducting the sniff prolongs the

vehicle’s occupants, request documentation, and seek consent

purpose of the stop. Rodriguez v. United States, ––– U.S.

to extend the detention. United States v. Machuca-Barrera,

––––, 135 S. Ct. 1609, 1616, 191 L.Ed.2d 492 (2015).

261 F.3d 425, 433 (5th Cir. 2001).

[7] [8] We have avoided scrutinizing the questions a Border [11] Tello avers that the immigration-inspection purpose of

the checkpoint stop was completed when Agent Villanueva

Patrol agent asks at the checkpoint, instead focusing on the

received the answer that Tello is a United States citizen and

duration of the stop:

was satisfied by that answer. He argues that, as the agent

admitted at trial, the questions about what he was hauling

in his trailer and whether he had any stops after loading the

We decline a protocol that measures

trailer were unrelated to his citizenship. Rather, the agent’s

the pertinence of questions to the

purpose in asking the questions was to give the Border Patrol

immigration purpose by an after-theservice canine more time to conduct a canine sniff of the

fact standard for admissibility at trial.

tractor-trailer to look for violations of immigration law, which

So long as a checkpoint is validly

Tello maintains extended the stop beyond its permissible

created, policing the duration of the

scope and made it unconstitutional.

stop is the most practical enforcing

discipline of purpose. The key is the

[12] Viewing the evidence in the light most favorable to the

rule that a stop may not *787 exceed

government, Wise, 877 F.3d at 215, we find that the canine

its permissible duration unless the

sniff here did not prolong the immigration stop. Tello does

officer has reasonable suspicion. We

not dispute that the stop lasted approximately 30 seconds.

deploy a test that is both workable

Agent Villanueva asked Tello about his citizenship, cargo,

and which reinforces our resistance

and travel, all of which are permissible questions. As we

to parsing the relevance of particular

have stated, “questions about travel including origin and

questions. To scrutinize too closely a

destination would be commonplace for an agent to ask during

set of questions asked by a Border

an immigration inspection.” United States v. Alvarez, 750 F.

Patrol agent would engage judges in

App'x 311, 313 (5th Cir. 2018) (per curiam) (unpublished).

an enterprise for which they are illequipped and would court inquiry into

When Agent Villanueva started questioning Tello about his

the subjective purpose of the officer

citizenship, the canine and its handler were already circling

asking the questions.

the tractor-trailer. Therefore, Agent Villanueva’s questioning

occurred simultaneously with the canine sniff. At most, mere

seconds elapsed before the dog alerted and Tello consented to

22 U.S. Government Works.

United States v. Tello, 924 F.3d 782 (2019)

a search. See United States v. McMillon, 657 F. App'x 326, 330

(5th Cir. 2016) (per curiam) (unpublished) (noting that if an

agent requests consent to extend the duration of a checkpoint

stop, or if probable cause arises, then the stop’s countable

duration is measured only up until the time of consent or

probable cause).

Moreover, the duration of the stop was significantly less than

or comparable to the time frames we have found acceptable

for immigration stops. See *788 Machuca-Barrera, 261

F.3d at 435 (holding that questions that “took no more

than a couple of minutes” were “within the permissible

duration of an immigration checkpoint stop”); McMillon, 657

F. App'x at 331 (“A checkpoint stop lasting approximately

thirty to forty seconds to allow border patrol agents to

ask citizenship and travel questions and to request consent

for a search is of a sufficiently limited duration under our

precedent.”). However, Tello criticizes the length-based

approach to judging the permissible duration of a stop

created by Machuca-Barrera and avows that it cannot survive

Rodriguez.

Tello’s argument overextends Rodriguez. Rodriguez involved

a traffic stop. 135 S. Ct. at 1612. The officer checked the

defendant’s license and registration, the passenger’s license,

and ran a records check on them. Id. at 1613. The officer

then called for a second officer and issued a warning ticket.

Id. Although “all the reason[s] for the stop” were “out of

the way,” the defendant was not “free to leave” and refused

to allow the officer to walk his dog around the SUV. Id.

at 1613 (brackets in original). When the second officer

arrived, the original officer retrieved his dog who alerted. Id.

Approximately seven or eight minutes had elapsed since the

officer had issued the warning ticket. Id. A search “revealed

a large bag of methamphetamine.” Id. The overall duration of

the stop was 29 minutes. Id. at 1617 (Thomas, J., dissenting).

The defendant moved to suppress the evidence and the

magistrate judge found that, because the post-warning

detention and search were not supported by reasonable

suspicion, a Fourth Amendment violation had occurred. Id.

at 1613. However, the magistrate judge concluded that,

consistent with Eighth Circuit precedent, the wait was a de

minimis intrusion. Id. Adopting the magistrate judge’s factual

findings and legal conclusions, the district court denied the

motion, and the Eighth Circuit affirmed. Id. at 1613–14. The

Supreme Court granted certiorari on the question of “whether

police routinely may extend an otherwise-completed traffic

stop, absent reasonable suspicion, to conduct a dog sniff.” Id.

at 1614.

The Supreme Court reversed, holding that authority for the

traffic stop ends “when tasks tied to the traffic infraction are—

or reasonably should have been—completed.” Id. In addition

to determining whether to issue a traffic ticket, an officer

“may conduct certain unrelated checks during an otherwise

lawful traffic stop,” but not in a way that “measurably

extend[s] the duration of the stop.” Id. at 1615 (citation

omitted). These inquiries, such as checking a driver’s license,

registration, and insurance and determining whether there are

outstanding warrants, further the purpose of the traffic laws

and *789 ensure “that vehicles on the road are operated

safely and responsibly.” Id.

[13] Tello argues that Rodriguez prohibits officers at

immigration checkpoints from asking anything other than

a brief question or two directly about citizenship and for

supporting documentation. However, the Supreme Court

recognized in United States v. Martinez-Fuerte that an

immigration stop may take up to five minutes, and the

intrusion, which can include referral to secondary inspection,

“is sufficiently minimal that no particularized reason need

exist to justify it.” 428 U.S. 543, 563, 96 S.Ct. 3074, 49

L.Ed.2d 1116 (1976). “Border Patrol officers must have wide

discretion in selecting the motorists to be diverted for the

brief questioning involved,” id. at 563–64, 96 S.Ct. 3074, and

“incidents of checkpoint operation also must be committed to

the discretion of such officials.” Id. at 559 n.13, 96 S.Ct. 3074.

[14] Rodriguez does not change this law. Notably, Rodriguez

dealt with a traffic stop; this is an immigration stop where

canine sniffs are more relevant to the purpose of the stop.

Cf. Rodriguez, 135 S. Ct. at 1615 (“[A] dog sniff is not

fairly characterized as part of the officer’s traffic mission.”).

Rodriguez also does not dictate a script that agents must

follow. Rather, Rodriguez simply allows for stops of a

“tolerable duration”—a duration that is circumscribed by

the reason for the stop. Id. at 1614. The Supreme Court

cautioned against investigation into other possible crimes

which add time to the stop and can make the continued seizure

unconstitutional. Id. at 1615–16.

There is no evidence in this case that the canine was looking

for drugs or other possible crimes. Agent Villanueva testified

that the handler and canine were conducting an immigration

inspection. Agent Villanueva agreed that he “wanted to make

sure that the dog had time to finish its inspection of the

23 U.S. Government Works.

United States v. Tello, 924 F.3d 782 (2019)

vehicle” and that it “probably takes a little more time for

a Border Patrol K9 to sniff a tractor-trailer than a fourdoor sedan.” The canine handler noted he was trying to

determine whether “there’s an immigration violation, even

something going on in a vehicle that you can’t see, because

someone’s hidden somewhere[.]” This type of checkpoint

operation, lasting approximately 30 seconds, is reasonable

and fits squarely within the officials’ discretion and case

law. See Martinez-Fuerte, 428 U.S. at 557, 96 S.Ct. 3074

(“While the need to make routine checkpoint stops is great,

the consequent intrusion on Fourth Amendment interests is

quite limited.”).

[16] Consent given after an unconstitutional detention is

analyzed under a two-pronged inquiry: “(1) whether the

consent was freely and voluntarily given; and (2) whether the

consent was an independent act of free will.” United States

v. Macias, 658 F.3d 509, 522 (5th Cir. 2011). As previously

discussed, Agent Villanueva did not unreasonably seize Tello.

Agent Villanueva was not holding any of Tello’s documents,

and “[t]he record provides no basis for finding that he did

not voluntarily answer the officers’ questions and consent to

their requests.” Wise, 877 F.3d at 222. As such, the validity of

Tello’s consent is without doubt.

[15] Tello makes a secondary argument: his consent

did not dissipate the taint of the prior constitutional

violation. Because we find that the stop was constitutionally

permissible, we are not obligated to reach the consent issue.

See United States v. Brigham, 382 F.3d 500, 512 (5th Cir.

2004) (en banc) (“Absent a Fourth Amendment violation,

[the defendant’s] consent to search the vehicle was not

unconstitutionally tainted.”). Nevertheless, we note that Tello

gave valid consent.

*790 IV.

The district court’s judgment is AFFIRMED.

All Citations

924 F.3d 782

Footnotes

The government moved to dismiss the third count in the indictment because the alien was a juvenile when he was taken

into custody.

Motions to suppress evidence must be made before trial. Fed. R. Crim. P. 12(b)(3)(C). A court can consider an untimely

motion if the party shows good cause. See Fed. R. Crim. P. 12(c)(3). Tello does not specifically mention good cause, but

defense counsel stated that he was not aware until Agent Villanueva testified that when he completed his inspection at

the primary lane, Tello was detained to allow the dog to continue to search the vehicle.

See also United States v. Hipolito-Ramirez, 657 F. App'x 271, 272–73 (5th Cir. 2016) (per curiam) (unpublished)

(rejecting argument that one minute between investigation of immigration status and consent to search suitcase was

unreasonable); Castille, 478 F. App'x at 869 (noting that where agent spent 30 seconds asking each defendant about

his citizenship status and for consent to search, stop “lasted no longer than necessary to fulfill its immigration-related

purpose”) (citation omitted); United States v. Hinojosa-Echavarria, 250 F. App'x 109, 113 (5th Cir. 2007) (per curiam)

(unpublished) (observing that one-to-one and one-half minute stop was within the time approved in Machuca-Barrera

and did not exceed the permissible duration); United States v. Reyes, 243 F. App'x 858, 859 (5th Cir. 2007) (per curiam)

(unpublished) (finding that two to three minute inspection was a “brief time” within the “permissible duration”); Jaime, 473

F.3d at 185 (holding that duration of detention from first question asked until defendant gave consent to search her bag

was less than half a minute and was not excessive).

End of Document

24 U.S. Government Works.

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