U.S. v. Portillo-Aguirre

• Decision Date: 26 February 2001
• Docket Number: No. P-00-CR-367.,No. P-01-CR-63.,P-00-CR-367.,P-01-CR-63.
• Citation: 131 F.Supp.2d 874
• Parties: UNITED STATES of America, v. Reynaldo PORTILLO-AGUIRRE, Defendant. and United States of America, v. Maria Julia Portillo-Bringas, Defendant.
• Court: U.S. District Court — Western District of Texas

131 F.Supp.2d 874

UNITED STATES of America, v. Reynaldo PORTILLO-AGUIRRE, Defendant. and United States of America, v. Maria Julia Portillo-Bringas, Defendant.

No. P-00-CR-367.

No. P-01-CR-63.

United States District Court, W.D. Texas, Pecos Division.

February 26, 2001.

COPYRIGHT MATERIAL OMITTED

James K. Blankinship, Assistant U.S. Attorney, Alpine, TX, for government.

Ray Velarde, El Paso, TX, for defendant Reynaldo Portillo-Aguirre.

Luis E. Islas, El Paso, TX, for defendant Maria Julia Portillo-Bringas.

ORDER DENYING DEFENDANTS' MOTIONS TO SUPPRESS

FURGESON, District Judge.

Before the Court are the Motions to Suppress of Defendants Reynaldo Portillo-Aguirre and Maria Portillo-Bringas, both filed February 7, 2001, in the above-styled cases. The Motions assert identical arguments and will accordingly be resolved together. After careful consideration of the briefs and oral arguments at the hearing of February 22, 2001, it is the opinion of the Court that the Defendants' Motions be DENIED.

INTRODUCTION

This case is part of the continuing legal saga that is the Sierra Blanca immigration checkpoint. The voluminous history of that checkpoint has been detailed elsewhere, see United States v. Jackson, 825 F.2d 853 (5th Cir.1987), and need not be recounted here. It is clearly the law in this Circuit that the Sierra Blanca checkpoint is not a border equivalent. Id. at 854.

However, it is equally clear that searches and seizures performed by the United States Border Patrol, whether at fixed checkpoints or by roving patrol, are subject to a unique body of Fourth Amendment doctrine. The analysis is governed by four seminal Supreme Court cases. The holdings of those cases may be summarized as follows. A vehicle search by a roving patrol must be based on consent or probable cause. Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). A seizure (stop) of a vehicle by a roving patrol need only be based on specific articulable facts that reasonably warrant suspicion. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). A vehicle search at a fixed checkpoint must be based on consent or probable cause. United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975). A seizure of a vehicle at a fixed checkpoint for a brief questioning of its occupants, for the purpose of ascertaining citizenship or immigration status, may be conducted without any particularized suspicion that the vehicle may contain illegal aliens. United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). At issue here is whether, or to what extent, the Border Patrol may extend the legitimate seizure of a bus for an immigration check at a fixed checkpoint, and remain on the bus to enquire about the presence of illegal narcotics.

FACTS

On September 20, 2000, at approximately 10:15 p.m., an Americanos bus pulled into the Sierra Blanca checkpoint. Border Patrol agents, according to standard practice, began to conduct a canine inspection around the outside of the bus, where the lower luggage bins are located. At the same time, Border Patrol agents Jade Woodruff and Ted Barron boarded the bus. Agent Woodruff testified that such immigration inspections usually take from three to five minutes. According to Agent Woodruff it is extremely common to arrest illegal aliens and make drug seizures on buses at the Sierra Blanca checkpoint. Agent Woodruff also testified that when he boards a bus to perform an immigration inspection he looks for dialect, accent, responsiveness to questioning, body language, nervousness, and reaction to the presence of the Border Patrol. Agent Woodruff testified that these factors can contribute to his forming a suspicion that a passenger may be an illegal alien or be carrying illegal narcotics.

It is also interesting to note that Agent Woodruff testified that the Border Patrol does keep agents apprized of changes in Fourth Amendment law, and that Agent Woodruffs personal observation is that the number of drug seizures in the outside luggage bins has dropped dramatically since the decision in Bond v. United States, 529 U.S. 334, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000) invalidated the "squeeze and sniff" search of the overhead luggage racks inside the bus. Agent Woodruff's opinion is that drug smugglers, equally cognizant of developments in case-law, have simply moved the drugs from the lower luggage bins, where they are exposed to canine inspection, to the inside luggage racks, where detection of the narcotics is more difficult.

Also worthy of note is Agent Woodruff's testimony that less than half of the searches he conducts for illegal narcotics reveal the presence of drugs.

On September 20, 2000, once on board the bus, Agent Woodruff made an announcement that he was going to conduct an immigration inspection of the bus. Agent Woodruff testified that the making of an announcement is his personal modus operandi, that Border Patrol has no policy addressing the issue, and that many agents make no announcement at all.¹ Agent Woodruff then walked down the isle to the back of the bus. Ms. Portillo was sitting in the third window seat from the front on the driver's side of the bus. Mr. Portillo was sitting directly behind her. Agent Woodruff testified that Mr. Portillo seemed nervous from the moment Agent Woodruff boarded the bus. This fact is not reflected in Agent Woodruffs report after the arrest, but this Court finds that Agent Woodruffs testimony was credible. Agent Woodruff testified that Mr. Portillo was sitting with his legs straight down and holding a pillow and a book in his lap. Agent Woodruff continued his inspection with the rest of the bus, checked the bathroom at the back of the bus, and began to walk back toward the front of the bus.

While returning to the front of the bus, Agent Woodruff noticed a green duffel bag under Mr. Portillo's seat, which could not be seen from the front because of the way Mr. Portillo was sitting. Agent Woodruff then asked Mr. Fortillo if he had any luggage on the bus. In response, Mr. Portillo pointed to a green rucksack in the overhead bin directly above his seat. Agent Woodruff then asked Mr. Portillo if the green duffel bag under the seat was his as well. Agent Woodruff testified that Mr. Portillo indicated that it was, and began to fidget nervously. Agent Woodruff asked what was in the green duffel bag and Mr. Portillo responded that it contained books and clothes. Agent Woodruff then asked if he could look in the bag. Mr. Portillo opened the bag to display its contents to Agent Woodruff. Agent Woodruff testified that the manner in which Mr. Portillo was showing him the contents of the bag led him to believe that Mr. Portillo was attempting to conceal something in the bottom of the bag. Agent Woodruff again asked if he could search the bag himself. Mr. Portillo agreed. Agent Woodruff pushed aside the clothes on top of the bag and immediately saw a brown, tape-wrapped bundle. Agent Woodruff then arrested Mr. Portillo and notified Agent Barron, who escorted Mr. Portillo off the bus.

Agent Woodruff then noticed that there was a blue duffel bag, identical in design to the green duffel bag, under the seat in front of Mr. Portillo, the seat in which Ms. Portillo was sitting Agent Woodruff, not expecting anyone to answer, asked the passengers as a whole whose bag this was. To Agent Woodruff's surprise, Ms. Portillo claimed the bag and pulled it out from under her seat. Agent Woodruff testified that Ms. Portillo never exhibited any nervousness or aroused any suspicion before he discovered the bag under her seat. Agent Woodruff asked Ms. Portillo if he could search her bag. She agreed and opened her bag. Agent Woodruff, without disturbing the contents of the bag, saw brown tape-wrapped bungles in the bag, identical to those he had seen in Mr. Portillo's green duffel bag. Agent Woodruff then arrested her, collected her luggage, and escorted her off the bus. Agent Woodruff testified that the entire stop took about ten minutes.

ANALYSIS

The question for this Court is whether these actions violated the Portillos' Fourth Amendment protection against unreasonable searches and seizures. Without splitting hairs, the analysis can be usefully broken down into three components: the seizure of the Americanos bus at the Sierra Blanca checkpoint, the continued seizure of the Portillos on board the Americanos bus for the purpose of Agent Woodruff to investigate his suspicion that the Portillos may have been carrying illegal narcotics, and finally the searches of the Portillos' bags.

The first question is easy. Martinez-Fuerte clearly allows the seizure of vehicle, without individualized suspicion, for the limited purpose of an immigration inspection. 428 U.S. at 566, 96 S.Ct. 3074. There can be no dispute that the initial seizure of the Portillos, and the rest of the passengers on the bus, was constitutionally permissible.

The second question is much more difficult. The question is, as stated above, whether, or to what extent, the Border Patrol may extend the legitimate seizure of a bus for an immigration check at a fixed checkpoint, and remain on the bus to enquire about the presence of illegal narcotics. The question lends itself to two kinds of answer. An answer of yes to the "whether" question necessitates the "to what extent" inquiry. Therefore, this Court will first address the question of whether the Border Patrol may extend the legitimate immigration seizure to enquire about drugs. Once having found that such an extension is within the Border Patrol's authority, this Court can then attempt to resolve the question of the permissible bounds of that extension.

The authority of Border Patrol to establish permanent checkpoints, effectuate roving patrol stops, and interrogate persons concerning citizenship status is derived from the powers enumerated in 8 U.S.C. §§ 1357(a)(1) & (a)(3). The Supreme...