REVISED, July 12, 2000
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-40620 _____________________
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ARTURO HERNANDEZ-ZUNIGA
Defendant-Appellant
_________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________ June 14, 2000
Before KING, Chief Judge, and REAVLEY and STEWART, Circuit Judges.
KING, Chief Judge:
Following a bench trial, Defendant-Appellant Arturo
Hernandez-Zuniga was convicted of possession of cocaine with
intent to distribute. He appeals his conviction and sentence,
arguing that the district court erred in refusing to grant his
motion to suppress. We AFFIRM.
I. Valley Transit Company (“VTC”) is a commercial bus company
that provides regularly scheduled passenger bus service in Texas.
On December 11, 1998, a VTC bus was traveling on U.S. Highway 77
during regularly scheduled passenger service between Brownsville
and Corpus Christi.1 Around 12:20 a.m., the bus was pulled over
outside of Riviera, Texas by the United States Border Patrol.
Border Patrol Agent Reynaldo Atanacio and his partner boarded the
bus and Atanacio announced: “U.S. Border Patrol, U.S. inspection.
If you’re not a citizen of the United States please have your
immigration documents ready to present to me.” Atanacio and his
partner then began inquiring as to the passengers’ citizenship.
While Atanacio was questioning a passenger in the second
row, he glanced up and made eye contact with Defendant-Appellant
Arturo Hernandez-Zuniga (“Hernandez”), who was sitting in the
third row. Hernandez waved at Atanacio and said “U.S. citizen,
Officer.” Atanacio directed Hernandez to stay in his seat and
stated that he would get to him shortly. When Atanacio proceeded
to Hernandez and inquired as to his citizenship, Hernandez stated
that he was a U.S. citizen. Atanacio then asked Hernandez where
he was traveling to and from, and Hernandez said that he was
traveling from Brownsville to Houston. At this point, Atanacio
1 Highway 77 comes within one-half mile of the U.S.-Mexico border and is known to law enforcement agencies as a major thoroughfare for illegal aliens and narcotics traffickers. As a result, a number of permanent checkpoints are set up along the road and Border Patrol agents regularly patrol the highway.
2 noticed that Hernandez was becoming increasingly nervous.
Concerned for his safety, Atanacio asked Hernandez whether he was
carrying any weapons. Hernandez became agitated and answered
that he did not have any weapons. He then jumped out of his seat
and asked: “Do you want to check on the seat and everything?”
Atanacio instructed Hernandez to sit down, and then
proceeded to look around and under Hernandez’s seat. He then
noticed that Hernandez’s coat, which was on the neighboring seat,
was covering a small black bag. Upon questioning, Hernandez
stated that the bag was his and that it contained clothes.
Atanacio asked Hernandez if he would mind opening the bag.
Hernandez agreed, and Atanacio observed that the bag did indeed
contain clothing. Atanacio then requested permission from
Hernandez to conduct a more thorough search of the bag and
Hernandez consented.
During the search, Atanacio found two hard bundles wrapped
in shirts. As Atanacio lifted the bundles out of the bag,
Hernandez stated: “Oh, that’s not mine.” Atanacio punctured one
of the bundles with his knife and observed that it contained a
white powder, which he believed to be narcotics. Atanacio then
placed Hernandez under arrest and transported him to a nearby
weigh station for further questioning. After being read his
Miranda rights, Hernandez admitted that he knew the bundles were
cocaine, and that he was transporting the drugs from Brownsville
to Houston for an unnamed individual.
3 Prior to trial, Hernandez moved to suppress the cocaine. He
argued that the initial stop of the bus by the Border Patrol
constituted an unlawful seizure under the Fourth Amendment.
Therefore, any evidence arising from that stop was tainted and
should be suppressed.
At the suppression hearing, the district court heard
testimony from Ben Rios, the Director of Operations at VTC. Rios
testified that VTC has a long-running practice of cooperating
with law enforcement agencies. Rios stated that VTC keeps the
Border Patrol informed of its buses’ routes and time-tables, and
that the company encourages the Border Patrol to pull over VTC
buses and conduct immigration inspections. Rios also stated that
the company requires its drivers to pull over and cooperate if
the Border Patrol signals the bus to stop — even if it means the
bus will be late in arriving at its destination.
Rios explained that VTC adopted this policy for two reasons.
First, the company believed that the law required the buses to
stop when signaled to do so by the Border Patrol. Second, Rios
stated that random stops and inspections by the Border Patrol
provided a benefit to the company. Because VTC does not pick up
passengers only at regularly scheduled stops, but will pick up
anyone who flags down a bus, Rios noted that it is difficult to
control who is traveling on VTC’s buses and what they are
carrying on board. As a result, VTC views random stops and
inspections by the Border Patrol as beneficial. Therefore, Rios
4 testified, VTC not only consents to, but encourages, the stops.
The district court also heard from the driver of the bus,
Dionicio Areguellin. Areguellin testified that random stops by
the Border Patrol were common on this route, and that the bus had
already been stopped by the Border Patrol twice that evening
before being stopped by Atanacio. Areguellin testified that he
always cooperated during these stops and that he cooperated on
this occasion. Areguellin stated that, while his managers had
not directly told him to always stop for the Border Patrol,
“everybody knows” that you are to pull over and stop when
signaled to do so.
Agent Atanacio also testified at the hearing. He stated
that the area where the bus was stopped is notorious for drug and
alien smuggling. Atanacio testified that he finds illegal aliens
aboard seventy-five percent of the commercial buses he stops for
immigration inspections. He also stated that, on average, the
immigration inspections only take ten to fifteen minutes.
Atanacio testified that, because illegal alien smugglers often
scout out Border Patrol checkpoints to see if the stations are
open or closed, he would often stop buses for inspections when,
as here, the closest permanent checkpoint (at Sarita) was closed.
Furthermore, Atanacio testified that when the checkpoints are
open, illegal aliens often try to avoid detection by getting off
the bus before it reaches a checkpoint and then circumventing the
checkpoint on foot. Once they are around the checkpoint, the
5 aliens will simply flag down a bus and continue their journey.
The district court found that VTC and the bus driver
consented to the stop by the Border Patrol. Because the stop was
consensual, the district court reasoned that the stop was
constitutional and did not violate Hernandez’s Fourth Amendment
rights. Hernandez waived his right to a jury trial and,
following a bench trial, he was found guilty of possession of
cocaine with intent to distribute and sentenced to 72 months in
prison. Hernandez timely appeals.
II.
We apply a two-tiered standard of review to a district
court’s denial of a motion to suppress. We review the court’s
factual findings for clear error and its “ultimate conclusion as
to the constitutionality of the law enforcement action de novo.”
See United States v. Chavez-Villarreal, 3 F.3d 124, 126 (5th Cir.
1993). Finding that the district court did not err in either its
factual or legal conclusions, we affirm Hernandez’s conviction
and sentence.
On appeal, Hernandez argues only that the initial stop of
the bus by the Border Patrol constituted an unlawful seizure
under the Fourth Amendment.2 Hernandez contends that because the
2 We note in particular that Hernandez does not argue that the agent’s initial questioning, without reasonable suspicion, violated the Fourth Amendment.
6 Border Patrol agents who stopped the bus had neither a warrant
nor reasonable suspicion that criminal activity was taking place
on board, the stop was unconstitutional and any evidence
emanating from it should be suppressed.
The government responds to Hernandez’s argument by stating
that, while the Border Patrol may not have had reasonable
suspicion to stop the bus, the stop was nonetheless
constitutional because it was conducted pursuant to VTC’s
consent. The government argues that VTC’s consent alone was
sufficient to render the stop constitutional.
The district court agreed with the government. Because the
evidence showed that VTC consented to random stops of its buses
by the Border Patrol, the district court ruled that the stop in
question was constitutional. The district court emphasized that,
as a passenger on the bus, Hernandez did not have any control
over when or where the bus would stop en route. The court noted
that the bus was liable to make any number of unscheduled stops
once a journey had begun, including stops to pick up passengers
who flagged down the bus. Because Hernandez had surrendered to
the bus company the power to make unscheduled stops, including
stops to let other passengers on board, the district court ruled
that he “cannot complain that the bus company stops to let Border
Patrol agents, whom it desires to be on the bus, board the bus en
route.”
The Fourth Amendment guarantees that the “right of the
7 people to be secure in their persons, houses, papers and effects,
against unreasonable searches and seizures, shall not be violated
. . . .” In the context of this case, the Amendment protects a
person’s interest in freedom of movement and seeks to ensure that
he will not be subject to random and arbitrary seizures. See,
e.g., Delaware v. Prouse, 440 U.S. 648, 657 (1979) (noting that
the random stop of an automobile by the police interferes with a
person’s “freedom of movement, [is] inconvenient, and consume[s]
time”). It is the case, however, that “the extent to which the
Fourth Amendment protects people may depend upon where those
people are.” Minnesota v. Carter, 525 U.S. 83, 88 (1998).
At issue is whether the Border Patrol’s stopping a public
bus on which Hernandez was a passenger resulted in Hernandez
being seized in violation of the Fourth Amendment. The Supreme
Court has held that a Fourth Amendment seizure occurs “when there
is a governmental termination of freedom of movement through
means intentionally applied.” Brower v. County of Inyo, 489 U.S.
593, 597 (1989) (emphasis deleted); see also Michigan Dep’t of
State Police v. Sitz, 496 U.S. 444, 450 (1990) (noting that a
Fourth Amendment seizure occurs when a vehicle is stopped at a
temporary, randomly placed, sobriety checkpoint); United States
v. Martinez-Fuerte, 428 U.S. 543, 556 (1976) (noting agreement
that stops at a checkpoint for detecting illegal aliens was a
Fourth Amendment seizure). We assume for purposes of this
opinion that Hernandez was seized by the Border Patrol agents.
8 The question thus becomes whether the seizure was
reasonable. See United States v. Brignoni-Ponce, 422 U.S. 873,
878 (1975) (“[T]he Fourth Amendment requires that the seizure be
‘reasonable.’”). “The reasonableness of seizures that are less
intrusive than a traditional arrest depends on a balance between
the public interest and the individual’s right to personal
security free from arbitrary interference by law officers.”
Brown v. Texas, 443 U.S. 47, 50 (1979) (citations and internal
quotation marks omitted). This test requires us to consider “the
gravity of the public concerns served by the seizure, the degree
to which the seizure advances the public interest, and the
severity of the interference with individual liberty.” Id. at
51. In the case before us, we have the additional consideration
of the effect of VTC’s consent.
Although the concept of third party consent has been most
often applied in the context of searches, it can also be applied
to seizures. See United States v. Woodrum, 202 F.3d 1, 11 (1st
Cir. 2000). In the context of searches, it is well established
that the police may conduct a warrantless search of an area
without running afoul of the Fourth Amendment if a third party
with common control over the area consents to the search. In
United States v. Matlock, 415 U.S. 164, 171 (1974), the Court
held that the consent of a person with common authority over a
shared bedroom legitimated a warrantless search of the room and
that the consent of the other occupant was not necessary. The
9 Court noted that “it is reasonable to recognize that any of the
co-inhabitants [of the room] has the right to permit the
inspection in his own right and that the others have assumed the
risk that one of their number might permit the common area to be
searched.” Id. 415 U.S. at 171 n. 7. We have found this
reasoning to be equally applicable to consensual searches of
automobiles. See United States v. Crain, 33 F.3d 480, 484 (5th
Cir. 1994); United States v. Baldwin, 644 F.2d 381, 383 (5th Cir.
Unit A 1981) (per curiam) (holding that a person with common
authority over an automobile may consent to the search, even if
another person with common authority objects to the same).
Arguably, a seizure by consent is presumptively reasonable
because “the consent acknowledges the individual’s right to be
free from interference and vitiates the intrusiveness of the
action.” Woodrum, 202 F.3d at 11 (citing Florida v. Jimeno, 500
U.S. 248, 250-51 (1991)). Here, however, the seizure is
authorized by a third party, rather than each of the individuals
subject to the seizure. Therefore, we analyze the reasonableness
of a seizure conducted pursuant to third party consent, and
determine whether that consent justifies the stop.
Hernandez maintains that, despite VTC’s consent, absent a
warrant or reasonable suspicion of criminal activity, the Border
Patrol’s seizure was unconstitutional because the bus was stopped
by agents, rather than stopped for another purpose. Like the
district court, we do not accept this argument. By purchasing a
10 bus ticket from VTC and boarding its bus, Hernandez relinquished
to VTC a substantial amount of control over his movement.
Although the ticket gave Hernandez some expectations regarding
the bus’s movement — namely that it would transport him from
Brownsville to Houston — VTC retained control over what route the
bus would take, the speed the bus would travel, and when and
where and for how long the bus would stop along the way.
Specifically, the evidence shows that VTC retained the right to
stop en route and pick up any passenger who flagged down a bus.
In this respect, Hernandez is in a much different position
than the taxicab passenger in Woodrum. That passenger, the
United States Court of Appeals for the First Circuit noted, had
“contracted to pay for both the right to exclude others from the
cab and the right to control its destination in certain respects”
and thus had “a reasonable expectation that he [would] not
gratuitously be seized while en route.” Woodrum, 202 F.3d at 6.3
Hernandez could neither exclude others nor direct that the bus
driver take a particular route. He could not order that the bus
continue moving toward its destination despite a driver-
3 In a case presenting somewhat similar facts as Hernandez’s, the Ninth Circuit determined that the boarding of a bus by a border patrol agent while the bus was stopped at a red light implicated no constitutional rights of the appellant. See United States v. Gonzales, 979 F.2d 711, 712-13 (9th Cir. 1992). The primary differences between the facts of the Gonzales case and those of the case before us are that in Gonzales, the bus was already stopped when the agents boarded, and the agents questioned passengers while the bus continued on its route. See Gonzales, 979 F.2d at 713.
11 determined reason to stop. At the minimum, given that a VTC bus
may make any number of stops to pick up passengers, it is
reasonable to conclude that Hernandez assumed the risk that the
bus would make unplanned stops, as well as the risk that during
these stops the bus might be boarded by Border Patrol agents.
Under these circumstances, the intrusion on Hernandez’s
Fourth Amendment interests effectuated by the Border Patrol’s
stop of VTC buses is quite limited. As we have noted, Hernandez
could expect numerous stops while en route. Frequent stops would
moderate any element of “fear and surprise,” Sitz, 496 U.S. at
452, associated with any particular cessation of forward
movement. Uncontradicted evidence indicates that the Border
Patrol’s stops rarely exceed ten to fifteen minutes in length.
Furthermore, the stops and inspections consist of little more
than each passenger being asked some brief questions about his
citizenship and, perhaps, being asked to show proof of
citizenship. All in all, the stop and immigration inspection is
no more than a minor intrusion upon an individual passenger’s
liberty. Cf. Sitz, 496 U.S. at 451 (characterizing the intrusion
visited upon motorists forced to stop at a randomly placed,
temporary sobriety checkpoint was slight); Martinez-Fuerte, 428
U.S. at 560 (holding that, in the context of immigration
inspections conducted at a permanent Border Patrol checkpoint,
the “objective intrusion” caused by a brief inquiry into a
person’s citizenship is minimal).
12 Compared to the limited intrusion on Fourth Amendment
interests, the public concerns served by the stop are weighty.
Testimony in the district court indicated that VTC voluntarily
consented to random stops and immigration inspections by the
Border Patrol and that the company considered such stops
beneficial. Rios testified that, given VTC’s willingness to pick
up passengers on the side of the road, the company has little
ability to monitor who is riding its buses and what they might be
carrying on board. His testimony indicated that VTC feels that
random stops of its buses by the Border Patrol help ensure the
passengers’ and driver’s safety, and help prevent passengers from
using VTC buses to transport contraband. Therefore, the
consented-to stops provide a certain benefit to the public by
helping ensure the safety of passengers on VTC buses.
The stops also serve the public interest by helping law
enforcement agencies enforce immigration laws. Agent Atanacio
testified that, in stops and inspections such as the one at issue
here, he discovered illegal aliens on board the bus seventy-five
percent of the time. Given the relative likelihood of
discovering illegal aliens during these stops and inspections,
the stops additionally weigh in favor of the public interest by
aiding the Border Patrol in enforcement of the law.
Further supporting the reasonableness of the stops is the
fact that VTC’s consent does not give the Border Patrol
unfettered discretion. Rather, the consent limits the Border
13 Patrol to stopping VTC buses en route in order to conduct
immigration inspections. As such, VTC’s consent is narrow in
scope and purpose. While it is true that, in this instance, the
inspection revealed more than the presence of illegal aliens,
this does not detract from the limited nature and purpose of the
original stop. Cf. Florida v. Jimeno, 500 U.S. 248, 257 (1991)
(holding that “[t]he scope of a search is generally defined by
its expressed object”).
In light of VTC’s voluntary consent, and considering the
public benefits of the stop as opposed to the intrusion upon the
rights of the individual bus passenger, the balance tips in favor
of finding the stop reasonable. As a result, we hold that when a
commercial bus company having a policy of making random,
unplanned stops to pick up passengers consents to random stops
and immigration inspections of its buses by the Border Patrol, a
stop conducted in accordance with that consent does not violate
the bus passengers’ Fourth Amendment rights. In this case, there
is no evidence that the agreement between VTC and the Border
Patrol was not voluntary, or that the scope of this stop and
inspection went beyond the type of stop agreed to by VTC. As
such, Hernandez’s Fourth Amendment right to be free from
unreasonable seizures was not violated when the Border Patrol
stopped the bus.
Our holding today is supported by the First Circuit’s recent
decision in Woodrum. At issue in Woodrum was Boston’s Taxi
14 Inspection Program for Safety (“TIPS”), an effort by that city’s
police department and taxicab companies to prevent crimes against
taxi drivers. Participation in TIPS is voluntary, and taxicab
companies choosing to participate consent to stops of their taxis
by police officers for the purpose of checking on the driver’s
safety. Because participation in the program is voluntary, and
the scope and purpose of the stops limited, the First Circuit
held that the stops did not violate a taxicab passenger’s Fourth
Amendment rights. See Woodrum, 202 F.3d at 12. Hernandez could
not have had a greater expectation of privacy than Woodrum, a
single passenger in a taxicab. Hernandez clearly did not have
the degree of control over the movement of the bus on which he
was riding that Woodrum had over the taxicab he had hired.
III.
Because Hernandez’s Fourth Amendment rights were not
violated when his bus was stopped by the Border Patrol, the
cocaine was properly admissible and the district court did not
err in denying Hernandez’s motion to suppress. AFFIRMED.