UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-50832

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

VERSUS

DELPHINE LUSTER,

Defendant - Appellee.

Appeal from the United States District Court for the Western District of Texas (01-CR-5) October 25, 2002

Before WIENER, EMILIO M. GARZA, and PARKER, Circuit Judges. * PER CURIAM:

We must determine whether the district court erred by basing

its decision to suppress cocaine seized by a Border patrol agent

during a routine immigration checkpoint inspection on a

determination that the agent extended his immigration stop to

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 search for drugs without reasonable suspicion of criminal activity.

We vacate and remand.

I. Background.

On December 13, 2000, a Greyhound Bus entered the Sierra

Blanca Immigration Checkpoint, east of El Paso on Interstate 10,

for inspection. Border Patrol agents opened its cargo bay and

conducted an inspection, including the use of canines. During that

time, Border Patrol Agent Jade Woodruff entered the passenger area

of the bus and proceeded down the aisle ascertaining nationality

status and making occasional inquiries about illegal drugs.

Approaching the rear of the bus, he observed a blue duffel bag

in the overhead rack but nobody sitting near it. The United States

(“the Government”) asserts that his attention was drawn to the bag

specifically because nobody was seated near it and that in his

experience, passengers attempt to disassociate themselves from bags

containing illegal drugs by placing them away from the area in

which they are seated.

Agent Woodruff asked whose bag it was and the Appellee,

Delphine Luster, identified it as hers. The accounts of the

parties are sharply divided at that point. The Government contends

that Agent Woodruff asked for Luster’s consent to look inside the

bag and that she replied, “Sure, go ahead.” Luster asserts that

she was never asked for nor granted consent to look in the bag.

Instead, she contends that Woodruff manipulated or “squeezed” the

2 bag and then opened it without her consent.

Agent Woodruff testified that after Luster gave permission,

she said, “Oh, it’s just my bed sheets,” which he thought to be an

odd thing to be carrying in that manner. Inside the bag, Agent

Woodruff found “insignificant pieces of linen” and, upon moving

them, felt a hard bundle. His past experience made him believe

that it was a likely package of illegal drugs.

He asked or told Luster to leave the bus and then had the bag

subjected to a canine “sniff.” Why he did so, given his assertion

that Luster had given consent to search the bag, is unclear. The

dog alerted and Border Patrol Agents then extracted a bundle of

cocaine from the bag.

In the district court, Luster moved to suppress the evidence

from the seizure. She argued that the stop of the bus was extended

impermissibly because Woodruff had no “reasonable suspicion.”

Further, she asserted that Woodruff’s alleged squeezing of the bag

was illegal under Bond v. United States,

(2000).

The district court ruled on August 9th, 2001, that Agent

Woodruff did not have reasonable suspicion to extend the stop of

the bus and make his inquiries of Luster. The court so ruled

because the “totality of objective factors on which Agent Woodruff

relied” were that he “noticed the blue duffel bag in the overhead

bin, asked to who it belonged, and that the Defendant, sitting a

few seats away, said that it belonged to her.” See United States

3 v. Luster, No. P-01-CR-5, at 3 (W.D. Tex. Aug. 13, 2001). The

court found that this set of facts did not support reasonable

suspicion, which it held as required to extend the stop long enough

for an inquiry. The court did not rule on the issue of whether

Agent Woodruff obtained Luster’s consent, nor on Luster’s claim

that Woodruff impermissibly manipulated the bag.

The Government appeals, largely on the basis of our opinion in

United States v. Machuca-Barrera,

(5th Cir. 2001),

rehear’g denied.

II. Standard of Review.

When considering a ruling on a motion to suppress, we review

questions of law de novo and factual findings for clear error.

United States v. Hernandez,

(5th Cir. 2002);

United States v. Jones,

(5th Cir. 2000). A

finding is clearly erroneous if the court is left with the

“definite and firm conviction that a mistake as been committed.”

Hernandez,

(quoting Anderson v. City of Bessemer

City,

(1985)). Additionally, the court views the

evidence in the light most favorable to the party that prevailed in

the district court. Hernandez,

; Jones,

. The district court may be affirmed on any basis established

by the record. United States v. McSween,

, 687 n.3 (5th

Cir.), cert. denied,

(1995).

III. Analysis.

4 Immigration checkpoints for the purpose of making

suspicionless stops to determine nationality or immigration status

are constitutional. United States v. Martinez-Fuerte,

(1976). Searches or further detention beyond this purpose

require consent or probable cause.

. The validity of

suspicionless stops at a checkpoint depends on the “programmatic

purpose” of the checkpoint. City of Indianapolis v. Edmond,

(2000). Checkpoints created to control “ordinary

criminal wrongdoing,”

, or to interdict drugs,

at 47-

48, are invalid programmatic purposes. An immigration stop is a

valid programmatic purpose for such a suspicionless stop. Machuca-

Barrera,

.

Luster continues to argue on appeal that Agent Woodruff’s

request for consent to search her bag exceeded the scope of the

immigration search and impermissibly extended its duration. The

Government counters that Agent Woodruff’s actions were within the

durational scope of the immigration stop under Machuca-Barrera.

. The issue, however, is not the scope or duration of

the search but whether a law enforcement officer may ask an

individual for consent to answer questions or submit to a

consensual search, without a need for reasonable suspicion or

probable cause.

“[L]aw enforcement officers are always free to question

individuals if in doing so the questions do not effect a seizure.”

5

(citing United States v. Shabazz,

(5th Cir.

1993)). The United States Supreme Court has addressed this issue

in its latest term. Where bus passengers are asked, without

coercion, by law enforcement agents for voluntary consent and are

questioned or searched by consent, the passengers are not “seized”

under the Fourth Amendment. United States v. Drayton, ___U.S.___,

(2002)(where passengers are free to

participate or to leave, there is no coercion or seizure when

plainclothes officers showing badges and carrying concealed weapons

request passengers for consensual questioning and searches).

“Police officers act in full accord with the law when they ask

citizens for consent.”

. Whether such consent has been

granted is determined by the totality of the circumstances.

.1

In this case, Luster and the other passengers on the bus may

have been required to submit to an immigration stop, but there is

no assertion of being coerced into consenting to answering

unrelated questions or submitting to a baggage search. Luster

admits that Agent Woodruff asked several other passengers for

permission to search belongings; such a request dispels the notion

1 We note that our opinion in Machuca-Barrera, which interprets scope of permissible questioning and inspection in terms of duration consistent with its programmatic purpose, see

, may be at odds with Drayton’s “totality of the circumstances” approach to determining consent. We need not resolve that aspect of Machuca-Barrera in this examination of officer-requested consent, however.

6 that a passenger’s consent, where granted, was other than

voluntary.

There was no requirement for Agent Woodruff to act

under reasonable suspicion or to obtain probable cause to ask for

such consent.

At issue, however, is whether Luster actually

consented to the search of her bag. The district court did not

make a determination on that point when it ruled that Agent

Woodruff had impermissibly extended the inspection to ask consent

without reasonable suspicion. The answer to that question will, in

part, determine whether the cocaine found in Luster’s bag was

properly seized or excluded.

The district court should consider Luster’s contention that

Agent Woodruff did not obtain her consent but simply ordered her

off of the bus to conduct a canine “sniff,” as well as her

contention that he squeezed or manipulated her bag before opening

it or obtaining any permission. When a bus passenger places a

soft-sided bag in an overhead bin, she expects that it may be moved

or touched by other passengers or employees. She does not expect

that those others will, as a matter of course, feel the bag in an

exploratory manner. For a law enforcement agent to do so is a

violation of that expectation and of the Fourth Amendment, and is

therefore impermissible. See Bond,

. The

district court’s order does address, with some concern, Luster’s

assertion that Woodruff squeezed the bag, noting that Bond

invalidates the Border Patrol’s practice of “squeeze and sniff”

7 searches on board a bus. The court did not make a credibility

judgment as to whether the squeeze actually happened, however, but

merely offered the observation as a caution. Making such a

determination may provide Luster with a defense to a finding of

having granted consent.

IV. Conclusion.

For the reasons stated herein, we VACATE the order of the

district court and REMAND for a determination of whether consent

had been granted for the bag search and whether Agent Woodruff

squeezed or manipulated it beforehand.

8