IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40057 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROY VILLARREAL, JR.,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-01-CR-476-1 -------------------- January 28, 2003

Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Roy Villarreal, Jr. appeals the district court’s denial of

his motion to suppress after pleading guilty conditionally to

possession with intent to distribute marijuana. Villarreal’s

argument has several subparts. First, he argues that the

immigration checkpoint constituted a suspicionless roadblock

seizure which is unconstitutional. He bases his argument on

Justice Thomas’s dissent in City of Indianapolis v. Edmond, 531

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-40057 -2-

U.S. 32 (2000). He acknowledges that present Supreme Court and

Fifth Circuit precedent allows for permanent immigration

checkpoints, but he raises the issue for the purpose of

preserving the issue for possible further review.

Second, Villarreal argues that the stop at the immigration

checkpoint exceeded the duration necessary for the officer to

ascertain his citizenship status and thus constituted an illegal

seizure. He argues that according to this Court’s decision in

United States v. Machuca-Barrera,

(5th Cir. 2001),

the stop should have ended when Agent Alcorn was satisfied of his

citizenship. He contends that Agent Alcorn’s further questioning

extended the permissible duration of the stop beyond the purpose

of the stop, to determine his citizenship.

In Machuca-Barrera,

, this Court upheld the

district court’s denial of the defendants’ motions to suppress

evidence where the defendants had been discovered to be smuggling

marijuana in their vehicle after being stopped at an “immigration

checkpoint” and asked, among other questions, whether they were

carrying firearms or drugs.

. The Court stated:

An officer may ask questions outside the scope of the stop, but only so long as such questions do not extend the duration of the stop. It is the length of the detention, not the questions asked, that makes a specific stop unreasonable: the Fourth Amendment prohibits only unreasonable seizures, not unreasonable questions * * * . No. 02-40057 -3-

(footnotes omitted). Although this Court did not set

specific upper time limits applicable to immigration-related

stops at Border Patrol checkpoints, the Court stated:

The permissible duration of the stop was the amount of time reasonably necessary for [the Border Patrol agent] to ask a few questions about immigration status. [The agent’s] few questions took no more than a couple of minutes; this is within the permissible duration of an immigration checkpoint stop.

. This court stated that it would not scrutinize

the particular questions a Border Patrol agent asked as long as

they related generally to determining citizenship status.

. “The key is the rule that a stop may not exceed its

permissible duration unless the officer has reasonable

suspicion.”

. Because the agent’s questions to

Machuca-Barrera took no more than a couple of minutes, it was

within the permissible duration of an immigration checkpoint

stop.

.

Villarreal was questioned for forty to fifty seconds in the

primary inspection lane. This was well within the couple of

minutes approved in Machuca-Barrera, and the time it took for

Agent Alcorn to question Villarreal about the ownership of the

vehicle did not extend the stop beyond its permissible duration.

Villarreal’s third argument is that there was no reasonable

suspicion to warrant his referral to secondary inspection for a

canine sniff. In Machuca-Barrera, this court stated that “if the

initial, routine questioning generates reasonable suspicion of No. 02-40057 -4-

other criminal activity, the stop may be lengthened to

accommodate its new justification.”

. Agent

Alcorn’s testimony at the hearing supports the conclusion that

there was reasonable suspicion to refer Villarreal’s vehicle to

secondary inspection for further investigation. The district

court found that, in view of Agent Alcorn’s more than five years’

experience as a Border Patrol agent, a variety of factors taken

together gave rise to reasonable suspicion of criminal activity.

Villarreal gave inconsistent explanations concerning the

ownership of the truck and his ultimate destination. The truck

was unusually clean and did not show the signs of wear-and-tear

normally associated with vehicles of similar age and with the

typical early morning traffic of workers passing through the

checkpoint. Villarreal avoided eye contact with Agent Alcorn.

Finally, the district court noted that the checkpoint was located

in an area known for the frequency of arrests for narcotics and

illegal aliens, and Villarreal was stopped driving away from the

border.

Villarreal contends that these factors cannot establish

reasonable suspicion. He contends that the factors of his lack

of eye contact and the fact that he was stopped driving away from

the border in a corridor known for alien and drug smuggling are

entitled to no weight. He concedes that although the unusually

clean appearance of his vehicle could help to support a No. 02-40057 -5-

reasonable suspicion determination, that fact standing alone

cannot do so.

The Supreme Court recently rejected precisely this sort of

“divide-and-conquer analysis” of reasonable-suspicion

determinations in United States v. Arvizu,

(2002). The relevant inquiry is whether the “totality of the

circumstances” create a reasonable suspicion of criminal

activity.

Based on the testimony of Agent Alcorn at the

hearing, the district court did not err in determining that

reasonable suspicion existed to continue the checkpoint stop.

United States v. Inocencio,

(5th Cir. 1994)(de

novo review).

Lastly, Villarreal argues that the agents lacked probable

cause to search the vehicle after the canine alerted, because the

Government failed to produce evidence of the canine’s

reliability. He acknowledges that this issue has been decided

against him but raises it to preserve it for possible further

review.

Villarreal also argues that the sentencing scheme in

(a) and (b) are unconstitutional after Apprendi v.

New Jersey,

(2000). He acknowledges that this court

has rejected this argument and raises it solely to preserve the

issue for possible further review.

AFFIRMED.