United States v. Rafael Tello
Opinion
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 tractor-trailer 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 immigration-checkpoint 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.
I.
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.
On August 23, 2017, a federal grand jury returned a three-count indictment charging Tello with transporting an illegal alien within the United States by means of a motor vehicle in violation of
On November 16, 2017, the case proceeded to a jury 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 immigration-checkpoint 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 immigration-checkpoint 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.
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
,
III.
"The Fourth Amendment protects '[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' "
District of Columbia v. Wesby
, --- U.S. ----,
We have avoided scrutinizing the questions a Border Patrol agent asks at the checkpoint, instead focusing on the duration of the stop:
We decline a protocol that measures the pertinence of questions to the immigration purpose by an after-the-fact standard for admissibility at trial. So long as a checkpoint is validly created, policing the duration of the stop is the most practical enforcing discipline of purpose. The key is the rule that a stop may not *787 exceed its permissible duration unless the officer has reasonable suspicion. We deploy a test that is both workable and which reinforces our resistance to parsing the relevance of particular questions. To scrutinize too closely a set of questions asked by a Border Patrol agent would engage judges in an enterprise for which they are ill-equipped and would court inquiry into the subjective purpose of the officer asking the questions.
Id
. at 434 (footnote omitted);
see also
Jaime
,
Border Patrol agents may conduct a canine sniff to search for drugs or concealed aliens at immigration checkpoints so long as the sniff does not lengthen the stop beyond the time necessary to verify the immigration status of a vehicle's passengers.
United States v. Ventura
,
Tello avers that the immigration-inspection purpose of the checkpoint stop was completed when Agent Villanueva received the answer that Tello is a United States citizen and 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 trailer were unrelated to his citizenship. Rather, the agent's purpose in asking the questions was to give the Border Patrol service canine more time to conduct a canine sniff of the tractor-trailer to look for violations of immigration law, which Tello maintains extended the stop beyond its permissible scope and made it unconstitutional.
Viewing the evidence in the light most favorable to the government,
Wise
,
When Agent Villanueva started questioning Tello about his citizenship, the canine and its handler were already circling 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 a search.
See
United States v. McMillon
,
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
,
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 .
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."
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 vehicle" and that it "probably takes a little more time for a Border Patrol K9 to sniff a tractor-trailer than a four-door 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
,
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
,
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
,
*790 IV.
The district court's judgment is AFFIRMED.
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,
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff - Appellee v. Rafael TELLO, Defendant - Appellant
- Cited By
- 6 cases
- Status
- Published