Revised March 4, 2003

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 02-40083 _____________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JULIAN GARCIA-GARCIA

Defendant - Appellant

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________

January 28, 2003

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

KING, Chief Judge:

Defendant-Appellant Julian Garcia-Garcia appeals the ruling

by the District Court for the Southern District of Texas denying

his motion to suppress evidence seized at a fixed immigration

checkpoint. We affirm.

I. FACTS AND PROCEDURAL BACKGROUND

On June 2, 2001, border patrol agents conducted an

immigration inspection of a northbound bus traveling through the inspection lane at a fixed checkpoint about fifteen miles north

of Laredo. Agent Gutierrez entered the bus to question the

passengers, while Agent Zelmer led a trained dog to search the

undercarriage of the bus. Gutierrez noticed Julian Garcia-Garcia

(“Garcia”) sitting alone near the back of the bus. Garcia was

nervously playing with a piece of paper, which he pocketed before

handing the agent his resident alien card. The agent also

noticed that Garcia appeared anxious, was sweating, and mumbled

answers concerning his citizenship.

Before Gutierrez had finished verifying the immigration

status of the rest of the passengers on the bus, he noticed

Zelmer and the dog get on the bus. Zelmer had taken the dog to

check the luggage bins in the undercarriage of the bus. The

canine alerted in the bin nearest to the rear tires; however, the

dog alerted not to the suitcases in the bin but rather to the

bin’s ceiling (or, in other words, to the floor of the passenger

compartment). Zelmer said that, based on his prior experience,

the dog’s signal indicated that narcotics might be hidden in the

bathroom located at the rear of the bus.

Once inside the bus, the dog pulled Zelmer to the rear of

the vehicle. At the suppression hearing, Zelmer explained that

the detection of drugs by the dog is a two-part process. First,

the dog “alerts” to the odor; the dog’s respiratory rate

increases and the dog generally appears more excited and alert as

it picks up speed and attempts to locate the source of the odor.

2 Second, the dog “indicates” the odor by, in the case of a

“passive alert” dog like the one used in this case, sitting or

standing nearby and staring at the source. Zelmer testified

that, when the dog walked down the aisle, bypassed Garcia,

stopped, and turned around, “that’s an alert in my book.” When

the dog then moved in behind Garcia’s seat and put its nose

underneath his seat, that indication demonstrated that the dog

had traced the odor to Garcia.1 While Zelmer maintains that the

dog, in diving under the seat to indicate the source of the odor,

never made contact with Garcia and did not sniff him individually

at close range, Garcia claims that the dog both sniffed him and

touched its nose to his pants and shoes. Garcia admits that the

dog did not hurt him in any way, either by scratching him,

knocking him over, or biting him.

Zelmer asked Garcia “what he had”; Garcia lifted his shirt

to reveal packages taped to his body. Zelmer told Gutierrez, and

Garcia lifted his shirt to show Gutierrez the packages. The

agents removed Garcia from the bus; when Garcia was exiting, the

dog again alerted to him. Zelmer led the dog back into the bus,

where a full inspection triggered no additional alerts. Garcia

was subsequently searched at the secondary checkpoint complex;

1 Zelmer testified that the dog’s normal method of indication is to sit or stand next to the source of the odor. However, the confined surroundings of the bus and narrow width of the aisle made it impossible for the dog to indicate normally.

3 additional packages were found taped to his lower legs, and all

of the packages contained marijuana.

On July 3, 2001, Garcia was charged with possession of

marijuana and possession of marijuana with intent to distribute.

Garcia filed a motion to suppress the evidence seized as a result

of the dog sniff. Garcia argued that the evidence should be

suppressed because the dog alerted specifically to the bathroom

area. He contended that the police should have removed all of

the passengers from the bus before leading the dog in to search

the bathroom. Garcia also argued that the drugs should be

suppressed because the agents lacked any individualized

reasonable suspicion to permit the dog to sniff him.

The district court, while “[a]ccepting Defendant’s version

that the canine’s nose actually touched his lower leg,” denied

Garcia’s motion to suppress. The court found that the dog’s

alert in the luggage compartment was only to the “rear of the

bus” rather than to the bathroom specifically. The court also

stated that Garcia’s suggestion that the passengers should have

been removed was an unreasonable alternative. The district court

ultimately ruled that the agents’ actions were reasonable under

the circumstances and suppression of the evidence was not

warranted.2

2 The district court never specifically stated that it considered the sniff-and-contact in this case to be a Fourth Amendment search; the court said only that the agents had acted reasonably and that there was “no basis for suppressing the

4 After his motion to suppress the marijuana failed, Garcia

pled guilty to the possession charge and was sentenced to 208

days in jail and three years’ supervised release. He appeals the

denial of his motion to suppress.

II. SNIFF-AND-CONTACT AS A FOURTH AMENDMENT SEARCH

“When reviewing a district court’s ruling on a motion to

suppress, we review questions of law de novo and accept the

factual findings of the trial court unless they are clearly

erroneous.” United States v. Kelly,

(5th Cir.

2002). We must also view the evidence in the light most

favorable to the party who prevailed in the district court.

United States v. Jones,

(5th Cir. 2000). Here

the district court “accepted” Garcia’s allegation that the dog

came into contact with his pants or shoes during the course of

the checkpoint stop. Because this finding of fact is not clearly

erroneous, we must presume that a “sniff-and-contact” occurred.

A. Drug-Sniffing Dogs at Immigration Checkpoints

The purpose of an immigration checkpoint is to verify the

immigration and naturalization status of the passengers in the

vehicles passing through the checkpoint. The Supreme Court has

held that this purpose is constitutionally sufficient to support

stopping all vehicles which pass through the checkpoint, even in

the absence of any individualized reasonable suspicion or

evidence in this case.”

5 probable cause that a particular vehicle contains illegal

immigrants. United States v. Martinez-Fuerte,

(1976). However, “[t]he scope of an immigration checkpoint stop

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,

(5th Cir. 2001). “[A]ny further detention beyond a brief

question or two or a request for documents evidencing a right to

be in the United States must be based on consent or probable

cause.” United States v. Portillo-Aguirre,

(5th Cir. 2002).

Therefore, the “permissible duration of an immigration stop

is the ‘time reasonably necessary to determine the citizenship

status of the persons stopped.’”

at 653 (quoting Machuca-

Barrera). This duration is brief – only long enough for the

vehicle’s occupants to “respon[d] to a brief question or two and

possibly [produce] a document evidencing a right to be in the

United States.” Martinez-Fuerte,

. While an

officer may ask questions outside of the permissible scope of the

stop, he may do so “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.”

Machuca-Barrera,

. “[I]f an agent does not

develop reasonable suspicion of [drug] activity before the

6 justifying purpose of a checkpoint stop has been accomplished, he

may not prolong the stop.” Portillo-Aguirre,

.

Where border patrol agents wish to employ a drug-sniffing

dog at an immigration stop, they may do so only if it does not

lengthen the stop beyond the time necessary to verify the

immigration status of the vehicle’s passengers. Machuca-Barrera,

n.21. In this case, the dog alerted to the

presence of narcotics before Agent Gutierrez had completed his

questioning of the passengers on the bus. Once the dog alerted,

the agents had, at a minimum, sufficient reasonable suspicion to

permit them to prolong the stop to explore further the potential

source of the dog’s alert. Cf. United States v. Williams,

(5th Cir. 1995) (holding that a canine alert is

sufficient to establish probable cause to search a vehicle for

drugs). Therefore, this stop did not exceed the scope and limits

placed on immigration checkpoint activity in prior Fifth Circuit

cases.

B. “Sniff-and-Contact” as a Fourth Amendment Search

While the sniff alert to the undercarriage of the bus

provided probable cause to search the vehicle, it did not

automatically also provide probable cause to search the

individuals in the vehicle. As the Supreme Court has explained:

Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply

7 pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be. The Fourth and Fourteenth Amendments protect the “legitimate expectations of privacy” of persons, not places.

Ybarra v. Illinois,

(1979); see also United

States v. Munoz,

(5th Cir. 1992) (“Officers

executing a search warrant of a particular premises may not

search a person found on the premises absent individualized

probable cause.”). As the agents lacked any individualized

probable cause or reasonable suspicion that Garcia was in

possession of drugs prior to the dog’s alerting to his person,

the remaining question in this case is whether, given the

circumstances of the stop, the dog’s sniff-and-contact of Garcia:

(1) constituted a Fourth Amendment search; and (2) if it was a

search, whether it was reasonable under the circumstances.

United States v. Montoya de Hernandez,

(1985)

(“The Fourth Amendment commands that searches and seizures be

reasonable. What is reasonable depends upon all the

circumstances surrounding the search or seizure and the nature of

the search or seizure itself.”).

If we assume, without deciding,3 that a dog sniff of an

individual is a search when the dog also makes contact with the

3 Because the district court accepted Garcia’s allegation that the dog touched him, we are treating this case as a sniff- and-contact. Therefore, we express no opinion on whether a dog sniff of an individual without concomitant contact is a Fourth Amendment search.

8 individual’s body, see Kelly,

n.1, and Horton v.

Goose Creek Independent School District,

, 474 (5th

Cir. 1982), such a search is analogous to a frisk or pat-down of

the type envisioned by the Supreme Court in Terry v. Ohio,

(1968). See Kelly,

; Horton, 690 F.2d at

479. The only remaining question is whether, under the specific

factual circumstances of this case, that search violated Garcia’s

Fourth Amendment rights.

C. The Reasonableness of the “Sniff-and-Contact” at an Immigration Checkpoint

The reasonableness of a Fourth Amendment search depends on

the circumstances under which the search was conducted.4 Montoya

de Hernandez,

. Here, the sniff-and-contact

occurred at a fixed checkpoint. As stated previously, agents at

a fixed checkpoint may only question the passengers briefly (and

4 The Tenth Circuit has addressed a sniff-and-contact in the particular circumstance of a roadblock set up to interdict drugs coming into a prison. In Romo v. Champion,

(10th Cir. 1995), plaintiffs brought a § 1983 action after police stopped their car at a roadblock near a prison entrance. At the roadblock, the police used a dog to sniff the vehicle; the dog also sniffed both plaintiffs’ bodies (coming into contact with at least one plaintiff during the sniff). Id. at 1014-15. The court held that the sniff of the plaintiffs’ bodies was “reasonable in light of all of the relevant circumstances.” Id. at 1018. The plaintiffs had a reduced expectation of privacy because they were visiting the prison, and the court found that a dog sniff of the “area surrounding one’s body is not terribly intrusive.” Id. In addressing the sniff-and-contact specifically, the court stated that, “[t]o the extent that the dog’s nose physically touched [plaintiff] Misty Gardner, that contact was purely incidental. Such a brief, unintentional touch cannot make an otherwise reasonable search unconstitutional.” Id.

9 request documentation) about their immigration status absent

reasonable suspicion of illegal activity that arises before the

immigration status of the passengers has been verified. While

the dog’s initial alert in the luggage bin did not provide

individualized reasonable suspicion to search Garcia, the dog’s

subsequent alert in the aisle of the bus did provide reasonable

suspicion that Garcia possessed the drugs that the dog sensed.

When the dog then indicated to Garcia by crawling under his seat,

sniffing him more closely and touching its nose to Garcia’s shoes

and lower leg, that sniff-and-contact search was reasonable given

that, as we stated in Horton and reiterated in Kelly, the sniff-

and-contact is the fundamental equivalent of a Terry stop.

The reasonable suspicion created by the dog’s alert is also

sufficient to support Zelmer’s questioning of Garcia about

whether he was in possession of any drugs. Garcia lifted his

shirt to reveal the packages without being frisked, and this new

information surely gave the agents probable cause to remove

Garcia from the bus and search him further. The district court

properly ruled that Garcia’s proposed alternative – removing all

of the passengers from the bus before permitting the dog to

search it – was more unreasonable than what the agents did in

this case. The agents’ actions in this case were reasonable

under the circumstances; there was no Fourth Amendment violation.

III. CONCLUSION

10 We AFFIRM the district court’s ruling denying Garcia’s

motion to suppress the evidence seized as a result of the dog

sniff, and we accordingly AFFIRM Garcia’s conviction and

sentence.

11