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Case: 13-51114

Document: 00512547895

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No. 13-51114

Date Filed: 02/28/2014

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

RICHARD RYNEARSON,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA; AGENT LANDS, Border Patrol Agent, Individually; RAUL PEREZ, Border Patrol Agent, Individually

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS, DISTRICT COURT NO. 2:12-CV-24

BRIEF FOR APPELLANT RICHARD RYNEARSON

JAVIER N. MALDONADO (attorney-in-charge) Texas Bar No. 00794216 Law Office of Javier N. Maldonado, P.C. 8918 Tesoro Dr., Ste. 575 San Antonio, TX 78217 Phone: (210) 277-1603 Fax: (210) 587-4001

Attorney for Appellant

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CERTIFICATE OF INTERESTED PARTIES

No. 13-51114, Rynearson v. United States of America.

The undersigned counsel of record certifies that the following listed persons

and entities as described in the fourth sentence of Rule 28.2.1 have an interest in

the outcome of this case. These representations are made in order that the judges

of this Court may evaluate possible disqualification or recusal.

Richard Rynearson, Plaintiff-Appellant

Javier N. Maldonado, Counsel to Plaintiff-Appellant

Justin K. Lands, Defendant-Appellee

Raul Perez, Defendant-Appellee

Harold E. Brown, Counsel to Defendants-Appellees

/s/Javier N. Maldonado

Attorney of Record for Richard Rynearson

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STATEMENT REGARDING ORAL ARGUMENT

This case involves legal questions of great importance within this judicial

circuit, given that the Border Patrol operates approximately eighteen permanent

suspicionless checkpoints in Texas alone, stopping thousands if not hundreds of

thousands of motorists per year.

It is likely that the issue presented will arise in

other cases, both criminal and civil, and in Appellant’s view the decisional process

would be aided by oral argument.

Accordingly, pursuant to Fifth Circuit Rule

28.2.3, Appellant respectfully requests that this Court hear oral argument in this

matter.

ii

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TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PARTIES

i

STATEMENT REGARDING ORAL ARGUMENT

ii

JURISDICTIONAL STATEMENT

1

STATEMENT OF ISSUES

2

STATEMENT

OF

THE CASE

3

A. Constitutional Framework

3

B. Factual Background

4

 

1. Rynearson’s Experience with the Uvalde Checkpoint

4

2. The March 18, 2010 Detention

5

3. Letter to Rynearson’s Commander

15

C. Procedural History

 

15

SUMMARY OF ARGUMENT

18

ARGUMENT

 

20

I. STANDARD OF REVIEW

20

II. THE DETENTION OF RYNEARSON FOR THIRTY-FOUR MINUTES EXCEEDED THE MINIMAL INTRUSION ALLOWED FOR A SUSPICIONLESS IMMIGRATION CHECKPOINT STOP

22

A.

The Overall Detention Extended Far Beyond The Time Reasonably Necessary To Inquire Into Immigration Status

23

1. The Agents Failed to Exercise Diligence and Extended the Detention Beyond a Reasonable Time with Dilatory Tactics and Irrelevant Questioning

24

2. The Agents Are Responsible for the Dilatory Tactics that Extended the Detention

29

B.

Perez’s Investigation Of Military Status For Ten To Fifteen Minutes Unlawfully Extended The Detention

42

1. The Immigration Purpose of the Stop Was Completed Prior to the Extended Investigation into Military Status

43

2. Detention for Ten to Fifteen Minutes in Order to Contact the Military Violated the Fourth Amendment Regardless of Sequence

45

III. THE EXTENDED DETENTION CANNOT BE JUSTIFIED ON THE BASIS

OF REASONABLE SUSPICION

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A. The Detention Cannot Be Upheld On The Basis Of Post Hoc Reasonable Suspicion Never Articulated By Any Of The Law Enforcement Officers Involved

B. The Totality Of Circumstances Does Not Establish Reasonable Suspicion Of

49

Drug Trafficking

52

C. The Thirty-Four Minute Detention Was Unreasonable Because The Agents

Made No Efforts To Confirm Or Dispel Any Suspicion, Much Less Diligent

Efforts

59

IV. THE DISTRICT COURT ABUSED ITS DISCRETION BY REFUSING TO

GRANT A CONTINUANCE FOR LIMITED DISCOVERY

61

CONCLUSION

64

CERTIFICATE OF SERVICE

65

CERTIFICATE OF COMPLIANCE

66

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TABLE OF AUTHORITIES

 

Page(s)

CASES

Access Telecom, Inc. v. MCI Telecomms. Corp.,

 

197

F.3d

694

(5th

Cir. 1999)

61

Berkemer v. McCarty,

468 U.S. 420 (1984)

34, 57

Bivens v. Six Unknown Fed. Narcotics Agents,

403

U.S. 388 (1971)

15

City of Indianapolis v. Edmond,

 

531

U.S. 32 (2000)

3

Club Retro, LLC v. Hilton,

 

568

F.3d 181 (5th Cir. 2009)

21

Curtis v. Anthony,

 

710

F.3d 587 (5th Cir. 2013)

21,

61, 64

Florida v. Bostick,

 

501

U.S. 429 (1991)

35,

57

Goodson v. City of Corpus Christi,

 

202

F.3d 730 (5th Cir. 2000)

21,

43, 45

Hiibel v. Sixth Judicial Dist. Ct. of Nev.,

542

U.S. 177 (2004)

34,

35, 36

Int’l Shortstop v. Rally’s Inc.,

 

939

F.2d 1257 (5th Cir. 1991)

61

Johnson v. Campbell,

 

332

F.3d 199 (3d Cir. 2003)

57

Karnes v. Skrutski, 62 F.3d 485 (3d Cir. 1995)

 

57

Keelan v. Majesco Software, Inc.,

 

407

F.3d 332 (5th Cir. 2005)

50

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Pennsylvania v. Mimms,

Page: 8

Date Filed: 02/28/2014

434

U.S. 106 (1977)

38,

39

Raby v. Livingston,

 

600

F.3d 552 (5th Cir. 2010)

 

61

Saucier v. Katz,

 

533

U.S. 194 (2001)

 

21

Schultea v. Wood,

 

47

F.3d 1427 (5th Cir. 1995)

 

62

Scott v. Harris,

 

550

U.S. 372

(2007)

30

Terry v. Ohio,

 

392

U.S. 1 (1968)

50

Texas v. Brown,

 

460

U.S. 730 (1983)

 

39

United States v. Arredondo-Hernandez,

 

574

F.2d 1312 (5th Cir. 1978)

 

39

United States v. Arvizu,

 

534

U.S. 266 (2002)

 

51

United States v. Brigham,

 

382 F.3d 500 (5th Cir. 2004)

29,

47

United States v. Brignoni-Ponce,

 

422 U.S. 873 (1975)

35,

50

United States v. Chacon,

330

F.3d 323 (5th Cir. 2003)

63

United States v. Dortch,

 

199

F.3d 193 (5th Cir. 1999)

24,

28, 55

United States v. Inocencio,

 

40

F.3d 716 (5th Cir. 1994)

 

54

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United States v. Johnson,

620 F.3d 685 (6th Cir. 2010)

United States v. Jones,

Page: 9

Date Filed: 02/28/2014

57

234 F.3d 234 (5th Cir. 2000)

24,

46, 58

United States v. Machuca-Barrera,

 

261

F.3d 425 (5th Cir. 2001)

passim

United States v. Macias,

 

658

F.3d 509 (5th Cir. 2011)

passim

United States v. Martinez-Fuerte,

 

428

U.S. 543 (1976)

passim

United States v. Massenburg,

 

654

F.3d 480 (4th Cir. 2011)

56

United States v. Olivares-Pacheco,

 

633

F.3d 399 (5th Cir. 2011)

50,

57

United States v. Pack,

 

612

F.3d 341 (5th Cir. 2010)

59

United States v. Portillo-Aguirre,

 

311

F.3d 647 (5th Cir. 2002)

24,

43, 45

United States v. Rangel-Portillo,

 

586

F.3d 376 (5th Cir. 2009)

53

United States v. Reyes,

 

227

F.3d 263 (5th Cir. 2000)

53,

54

United States v. Santos,

 

403

F.3d 1120 (10th Cir. 2005)

56

United States v. Shabazz,

 

993

F.2d 431 (5th Cir. 1993)

34

United States v. Sharpe,

 

470

U.S. 675 (1985)

40,

47

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United States v. Villalobos,

Page: 10

Date Filed: 02/28/2014

161

F.3d 285 (5th Cir. 1998)

54

Vander Zee v. Reno, 73 F.3d 1365 (5th Cir. 1996)

62

Xerox Corp. v. Genmoora Corp.,

888

F.2d 345 (5th Cir. 1989)

61

CONSTITUTION AND STATUTES

U.S. Const., Amendment 4

passim

8 U.S.C.

 

§ 1304(e)

36

§ 1357(a)

36

28 U.S.C.

§ 1291

1

§ 1331

1

RULES

Fed. R. App. P. 4(a)(1)(B)

1

Fed. R. Civ. P. 54(d)

passim

Fifth Circuit Rule 28.2.2

6

OTHER AUTHORITIES

Border Patrol Checkpoints Foiled by Drivers Asserting Their Rights, HUFFINGTON POST, March 1, 2013,

http://www.huffingtonpost.com/2013/03/01/border-patrol-

checkpoints_n_2789592.html

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JURISDICTIONAL STATEMENT

The district court exercised jurisdiction under 28 U.S.C. § 1331 and entered

final judgment on September 30, 2013.

Appellant Richard Rynearson filed a

timely notice of appeal on November 26, 2013.

ROA.495; see Fed. R. App. P.

4(a)(1)(B). This Court has jurisdiction under 28 U.S.C. § 1291.

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STATEMENT OF ISSUES

1. Whether a thirty-four minute detention extended beyond the constitutional

scope of a suspicionless immigration checkpoint stop, when Border Patrol

agents asked the first question regarding immigration status eleven minutes

into the stop, had physical possession of two passports seventeen minutes

into the stop, and extended the stop by fifteen minutes to contact the U.S.

citizen’s military base to verify his “military identity” and to discuss the

checkpoint encounter.

2. Whether a stop may be upheld on the basis of reasonable suspicion of drug

trafficking when one of the agents involved expressly disclaimed having

reasonable

suspicion

and

the

other

agent

articulated

no

suspicion

whatsoever, the agents conducted no investigation into drug smuggling

except for a canine sniff causing no alert, the district court based its

reasonable suspicion finding on factors not articulated by the agents, and the

totality of the circumstances is not consistent with drug smuggling.

3. Whether a pre-answer, pre-discovery motion for summary judgment should

have been continued for limited discovery regarding, inter alia, whether a

Border Patrol agent had determined immigration status prior to extending

the detention by fifteen minutes to call a U.S. citizen’s employer to verify

military status and to speak directly with his commander.

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STATEMENT OF THE CASE

In March 2010, the Border Patrol detained Rynearson for thirty-four minutes

at an interior immigration checkpoint on Highway 90, sixty-seven miles from the

border. The Defendant Border Patrol agents did not ask about immigration status

until eleven minutes into the seizure.

Instead, the agents pursued irrelevant

questioning, engaged in other dilatory tactics, and spent ten to fifteen minutes

calling Rynearson’s employer.

Rynearson sued, claiming this extended detention

violated the Fourth Amendment under clearly established law.

The district court

granted the Defendants’ pre-answer, pre-discovery motion for summary judgment

and this appeal followed.

A. Constitutional Framework

The Fourth Amendment guarantees “the right of the people” to be free from

“unreasonable searches and seizures.”

U.S. Const., Amend. 4.

“A search or

seizure is ordinarily unreasonable in the absence of individualized suspicion of

wrongdoing.”

City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000).

The

Supreme Court has approved a narrow exception to this rule for “brief questioning

routinely conducted at permanent checkpoints” related to immigration status.

United States v. Martinez-Fuerte, 428 U.S. 543, 566 (1976).

“[A]ny further

detention

must be based on consent or probable cause.” Id. (internal quotation

marks omitted; alteration in original).

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A suspicionless checkpoint detention is unlawful if “the seizure exceed[s] its

permissible duration.” United States v. Machuca-Barrera, 261 F.3d 425, 432 (5th

Cir. 2001). The scope of the detention is limited to inquiring into “the citizenship

status of persons passing through the checkpoint,” and the permissible duration

thus includes “the time necessary to ascertain the number and identity of the

occupants of the vehicle, inquire about citizenship status, request identification or

other proof of citizenship, and request consent to extend the detention.” Id. at 433.

The seizure exceeds its permissible duration when agents “ask questions outside

the scope of the stop” that “extend the duration of the stop” beyond what is

reasonably necessary to inquire into immigration status.

Id. at 432.

A stop of “a

couple

of

minutes”

is

“within

the

permissible

duration

of

an

immigration

checkpoint stop.” Id. at 435.

B. Factual Background

1. Rynearson’s Experience with the Uvalde Checkpoint

Plaintiff Richard Rynearson is an officer in the United States Air Force who

was

formerly stationed

at

Laughlin

Air

Force

Base,

near

Del

Rio,

Texas.

During his time at Laughlin, Rynearson traveled frequently to San

Antonio and was therefore frequently compelled to stop at the Border Patrol’s

interior checkpoint near Uvalde, Texas.

The

overwhelming majority

of traffic through this checkpoint is legitimate; in all of 2012, the Border Patrol

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apprehended a total of thirty-eight individuals at this checkpoint for illegally

entering the United States. ROA.257.

On at least three occasions before the incident that forms the basis of this

suit, Rynearson was detained for an extended period at the Uvalde checkpoint, and

in one case his vehicle was unlawfully searched, when he declined to tell the

agents his intended destination.

After the first incident, in

which an agent searched the interior of his vehicle with a drug dog and threw his

property on the pavement, Rynearson filed a written complaint.

In

another incident, an agent informed Rynearson that he was the only pilot from the

base who refused to answer where he was going.

Following these

incidents, as well as one other encounter with unconstitutional law enforcement,

Rynearson decided to install cameras in his vehicle. ROA.354.

2. The March 18, 2010 Detention

(i) Inspection at Primary (Approximately 35 Seconds)

On March 18, 2010, Rynearson traveled alone from Del Rio to San Antonio

in a two-door car with untinted windows.

Rynearson approached the

checkpoint with his window partially rolled down. ROA.354.

When Rynearson stopped, Agent Justin Lands asked if the car Rynearson

was driving was his vehicle.

ROA.335; Def. Mot. for Summ. J., Exhibit D,

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1/00:26 (hereinafter “Video”). 1 Rynearson responded in the affirmative and Lands

asked, “Can you roll down your window?

Is that as far as it’ll go?”

ROA.336; Video, 1/0:27.

Rynearson answered, “No, it can go down more” and

rolled his window down further to demonstrate. ROA.336; Video, 1/0:30. Lands

asked,

“You

said

this

ROA.336; Video, 1/0:34.

is

your

vehicle?”

and

Rynearson

confirmed

it

was.

Lands asked no questions related to immigration status

and referred Rynearson to secondary. ROA.335-ROA.336; Video, 1/0:00-0:35.

(ii) Initial Inspection at Secondary (Approximately 00:35 to 5:05)

Rynearson parked in secondary and rolled up his window.

Video, 1/0:58.

Lands walked over and “request[ed]” but “did not direct” that

Rynearson exit the vehicle.

ROA.274 (Lands’ Declaration); see also ROA.336;

Video, 1/1:34.

Lands also requested that Rynearson roll down his window;

Rynearson declined both requests.

ROA.336; Video, 1/1:39.

Rynearson was

concerned that the agents were attempting to remove him from his vehicle so that

they could search his car, as had happened to him in the past. ROA.354.

1 The video was edited only as needed to combine footage, to protect Rynearson’s identity, and to satisfy YouTube upload requirements. ROA.355. It was filed as Exhibit D to the Defendants’ summary judgment motion. ROA.271. Events depicted on the video are cited in a form compliant with Fifth Circuit Rule 28.2.2 to the unofficial transcript in Plaintiff’s Fact Appendix, ROA.333-ROA.346, and

also to the video by time ranges. For example, 1/0:26 refers to 26 seconds into part

1.

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Lands later declared that he had some suspicion that Rynearson declined to

roll down his window because of drugs in the door compartment.

A

drug-sniffing dog did not alert to Rynearson’s car.

Lands decided “to

complete the immigration inspection and use the results of that to determine

whether any further inquiry was necessary.” ROA.260.

Over

the

next

minute,

Lands

and

Rynearson

discussed

Rynearson’s

identification, Lands made further requests for Rynearson to exit the car, and

Lands questioned Rynearson regarding his military affiliation.

identification, Lands said, “I need to see some identification.”

With respect to

ROA.336; Video,

1/1:42. Rynearson responded that he could show Lands identification. ROA.336;

Video, 1/1:43. Lands also said, “Well, here’s what we can do. You’re gonna need

to give me your identification.” ROA.337; Video, 1/2:04. Rynearson said, “Ok,”

and put his driver’s license on the window, and said, “There’s my ID.” ROA.337;

Video, 1/2:07.

Lands said, “I need to inspect it to make sure it’s a valid ID.”

ROA.337; Video, 1/2:10. Rynearson said, “Ok” and also put his military ID card

on the window.

ROA.337; Video, 1/2:12-2:16.

Lands began copying down

information from the identification.

ROA.337; Video, 1/2:38.

Lands did not

specifically ask to “physically” inspect the identification. ROA.337.

Around the same time, Lands asked Rynearson if he was in the military and

if he

was

stationed in Del Rio.

ROA.337; Video, 1/2:17-2:23.

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answered yes to both questions and Lands confirmed that he understood the

answers. ROA.337; Video, 1/2:18-2:23.

Lands made his last request that Rynearson exit the vehicle approximately

two and a half minutes into the stop, stating that if Rynearson stayed in his car

“then we’ll just do this the hard way.” ROA.337; Video, 1/2:35. Lands decided to

complete the immigration inspection with Rynearson in the car. ROA.274. After

this exchange, Lands then ceased conversation.

An agent behind the vehicle

pointed out the various cameras installed in Rynearson’s vehicle.

Video, 1/2:58.

At a little after three minutes into the stop, and again just after four minutes,

Rynearson sought to re-engage Lands in conversation.

Video, 1/3:23, 1/4:07.

On the second try, Lands stated that he could not hear

Rynearson,

but

continued

with

the

conversation,

stating

that

“This

is

an

immigration checkpoint” and that Rynearson had “to satisfy to us that you’re a

United States citizen.”

ROA.338; Video, 1/4:15-4:37.

Although acknowledging

that Rynearson had not refused to answer any questions, Lands claimed that

Rynearson had been “evasive about answering.” ROA.338; Video, 1/4:52-4:55.

Lands ended this interaction by stating “If you’ll hang tight I’ll be right back with

you.” ROA.338; Video, 1/5:05.

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(iii) No Interaction (Approximately 5:06 to 9:52)

For the next approximately five minutes, Rynearson had no interaction with

any agents. During that time, Rynearson made telephone calls, including a call to

an FBI office in San Antonio to discuss what was required for the Border Patrol to

search his vehicle. ROA.338-ROA.339; Video, 1/6:48-9:52.

(iv) Resumed Inspection by Lands (Approximately 9:53 to 12:52)

Following his call with the FBI,

Rynearson attempted to re-start the

immigration inspection.

ROA.339; Video, 1/9:53.

Lands returned to the vehicle

window.

When Lands stated that he could not hear Rynearson, Rynearson rolled

his window partially down, approximately ten minutes into the stop.

ROA.340; Video, 2/0:13-0:15.

Rynearson then asked if Lands could hear him.

ROA.340; Video, 2/0:17. Lands responded “Yeah,” but requested that Rynearson

roll the window down further. ROA.340; Video, 2/0:18. When Rynearson began

to ask a question of Lands, Lands stated that a supervisor was coming. ROA.340;

Video, 2/0:32.

Rynearson and Lands then engaged in a discussion of when reasonable

suspicion was necessary and whether Lands had reasonable suspicion. ROA.340;

Video, 2/0:35-1:11. Rynearson then asked whether Lands thought that Rynearson

was not an American citizen.

ROA.340; Video, 2/1:12.

Lands responded, “Well

define what that means.”

ROA.340; Video, 2/1:15.

Rynearson responded, “You

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have a military ID.”

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ROA.340; Video, 2/1:17.

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Lands said, “That doesn’t mean

anything.” ROA.340; Video, 2/1:18. Rynearson pointed to his driver’s license and

said, “You have this ID.”

ROA.340; Video, 2/1:20.

Lands said, “Those aren’t

immigration documents.” ROA.340; Video, 2/1:21.

Rynearson then asked, “Do you want a passport?” ROA.341; Video, 2/1:23.

Lands did not respond to the offer.

Instead, at approximately eleven

minutes into the stop, he asked, “Are you a U.S. citizen?”

ROA.341; Video,

2/1:24.

Rynearson responded, “I am a U.S. citizen.”

ROA.341; Video, 2/1:25.

Lands said, “How come you wouldn’t answer me earlier?” and

Rynearson

responded, “You never asked me if I was a U.S. citizen!”

ROA.341; Video,

2/1:26.

After a discussion in which Rynearson noted that he had answered all of

Lands’ questions, Lands stated, “Well, here’s the deal, alright, like I said, I don’t

need reasonable suspicion to secondary you for an immigration violation, that’s

why you’re being secondaried.”

ROA.341; Video, 2/2:07.

Lands stated that he

was not accusing Rynearson of violating an immigration law.

ROA.341; Video,

2/2:16. In response to Rynearson’s further questions, Lands twice stated that at a

checkpoint, all he needs “is mere suspicion of an immigration violation,” not

reasonable suspicion. ROA.341; Video, 2/2:35. Lands declared that he had mere

suspicion but was not going to divulge it. ROA.341-ROA.342; Video, 2/2:41. In

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his declaration, Lands averred that “Rynearson’s detention was solely for the

purpose of conducting an immigration inspection.” ROA.258.

Lands finally reiterated that a supervisor was coming, and joined other

agents at the rear of Rynearson’s vehicle.

ROA.342; Video, 2/2:59.

Rynearson

placed two passports on the window next to the driver’s license and military ID.

ROA.342; Video, 2/3:25.

(v) No Interaction (Approximately 12:53 to 17:23)

For the next four and a half minutes, Rynearson waited in the car without

interacting with any agents.

ROA.342; Video, 2/3:03-7:31.

At some previous

time, Lands had decided to call a supervisor to handle Rynearson’s detention.

There was a supervisory agent already on the scene at the time, Roy

Ehresman.

Lands, however, decided to call supervisory agent Raul

Perez, who was on patrol seven miles away at the time. ROA.260. It took Perez

approximately ten to fifteen minutes to arrive at the checkpoint. ROA.265. When

Perez arrived, he met with the on-scene supervisory agent, who briefed Perez

regarding Rynearson’s detention. ROA.265. Perez was informed that there was no

canine alert on Rynearson’s vehicle. ROA.265.

(vi) Inspection by Perez (Approximately 17:24 to 22:30)

Over seventeen minutes into the detention, Perez knocked on Rynearson’s

window.

ROA.342; Video, 2/7:31.

Rynearson responded, “Yes, sir?” and Perez

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asked, “Can you roll your window down so I can get your passport?”

Video, 2/7:32-7:36.

Rynearson responded, “Sure,” though the window was

already partially down, and then gave Perez two passports.

2/7:37-7:45.

ROA.342; Video,

Perez asked “Ok, Mr. Rynearson, was there any reason you didn’t want to

tell the agent your citizenship? That’s what we do right there on primary, sir.

ROA.342-ROA.343; Video, 2/8:02.

In the ensuing conversation, Rynearson

explained that he was not asked about his citizenship in primary, and that he was

not asked for a passport. ROA.343; Video, 2/8:07-8:34. Then, about one minute

after Perez’s arrival and more than eighteen minutes into the stop, Perez said, “Just

bear with me, let me check out your passport and we’ll get you on your way, sir.”

ROA.343; Video, 2/8:37.

Rynearson then informed Perez that he could prove that he was never asked

his citizenship status or for his passport at primary, stating “I have everything

videoed right now…” and that his video was “sent on the internet.”

Video, 2/8:41.

Perez acknowledged Rynearson’s statements about the video, and

then questioned Rynearson regarding his military status. ROA.343; Video, 2/8:43.

Specifically, Perez asked “And where are you currently stationed?”

Video, 2/8:48. Rynearson responded that he was stationed at Laughlin. ROA.343;

Video, 2/8:50.

Perez then asked, “And who’s your CO?”

12

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2/8:53.

Rynearson asked, “My commanding officer?” and Perez responded,

“Yes.” ROA.343; Video, 2/8:54. Perez then put Rynearson’s passports in his shirt

pocket. ROA.343; Video, 2/8:55.

Rynearson responded that he “prefer[red] not to provide that information.”

ROA.343; Video, 2/8:56. Perez stated, “Well I can go ahead and call anyway and

talk to the OIC of the Provost Marshall.

ROA.344; Video, 2/8:59.

Perez

continued, “So, that’s why I’m asking you if you’re willing to provide that

information.” ROA.344; Video, 2/9:04. Rynearson asked Perez “why would you

need to contact the military” and whether he was “not convinced” that Rynearson

was an American citizen.

ROA.344; Video, 2/9:07.

Perez responded, “No, I’m

asking you who your CO is,” but acknowledged that Rynearson did not have to

answer.

Video,

2/9:13-9:29.

Perez

declares

that

he

asked

for

Rynearson’s commanding officer’s name “so that [he] would have some facts to

confirm [Rynearson’s] military identity.” ROA.265.

Following

Perez’s

questioning

regarding

Rynearson’s

commander,

Rynearson had no interaction with the agents for about three minutes.

Perez returned to Rynearson’s window over twenty-two minutes into the

stop, and returned to questioning Rynearson regarding his military assignment,

asking “Laughlin Air Force Base?”

ROA.344; Video, 3/2:35.

Rynearson replied

in the affirmative for the third time to this question, and Perez informed Rynearson

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of his intent to “call the Provost Marshall and CID.”

Perez then left.

ROA.344; Video, 3/2:38.

During one of his absences from the vehicle, either at approximately

eighteen minutes into the stop, or twenty-two minutes into the stop, Perez called

dispatch to run a records check and scrutinized Rynearson’s passport.

According to Lands, such a records check takes a “couple of minutes.” ROA.259.

Based on his review of Rynearson’s documents and the return from the records

check indicating that Rynearson’s passports were valid, Perez determined that

Rynearson was an American citizen and therefore “there was no reason to detain

him further.” ROA.266.

(vii) No Interaction (Approximately 22:31 to 33:00)

Following Perez’s second period of questioning regarding Rynearson’s

military assignment, there was no further interaction between Rynearson and the

agents for more than ten minutes.

Perez contacted Laughlin and spoke with

Captain Dinesen of Air Force Security Forces.

After confirming that

Rynearson was stationed at Laughlin and his “military identity,” Perez engaged in

further conversation with Captain Dinesen to discuss the checkpoint encounter and

a previous law enforcement encounter. ROA.279. This process took ten to fifteen

minutes. ROA.279. According to a letter sent later by Chief Patrol Agent, Robert

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Harris, Perez also spoke directly with Rynearson’s commander during this time.

(viii) Release from Detention (Approximately 33:01 to 34:00)

At some point after Perez determined that Rynearson was an American

citizen from reviewing his passports and conducting a records check, Lands came

into the checkpoint office.

Rynearson. ROA.266.

Perez then instructed him to release

About thirty-three minutes into the stop, Lands returned to Rynearson’s

vehicle and released him. ROA.345; Video, 4/3:45-5:02.

Rynearson was detained about thirty-four minutes in total.

Video, parts 1-4.

3. Letter to Rynearson’s Commander

After the incident, Chief Harris sent a letter to Rynearson’s commander to

complain about Rynearson’s conduct and to suggest grounds for disciplinary

action. ROA.357-ROA.359.

C. Procedural History

Rynearson filed suit against Lands and Perez for unlawfully detaining him in

violation of the Fourth Amendment, under Bivens v. Six Unknown Fed. Narcotics

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Agents, 403 U.S. 388 (1971). 2

Page: 26

Date Filed: 02/28/2014

Prior to their answer or any discovery, the Defendants moved for summary

judgment

on

the

ground

of

qualified

immunity

and

to

stay

all

discovery.

Rynearson opposed their motion, and also moved for a

continuance from summary judgment in order to conduct discovery, see Fed. R.

Civ. P. 54(d).

The motions were referred to a magistrate judge, who stayed all discovery.

ROA.418. The magistrate judge further recommended that Rynearson’s motion to

continue

summary

judgment

for

limited

discovery

be

Defendants’ motion for summary judgment be granted.

timely filed objections. ROA.469.

denied,

and

that

the

Rynearson

The district court reached the same conclusion as the magistrate judge and

granted summary judgment to the Defendants on the ground that Rynearson had

not established a constitutional violation.

The district court first held

that Rynearson’s conduct, “and not the lack of diligence on the part of Lands,” was

the “sole reason for any delay in determining immigration status.” ROA.484. The

district court asserted that Rynearson’s failure to return his window to partially

2 The district court dismissed claims under the Federal Tort Claims Act for lack of jurisdiction, ROA.465, as well as other claims against Agents Lands and Perez, ROA.488-ROA.490. Rynearson appeals only the summary judgment granted to the two agents on the Fourth Amendment unlawful detention claim, and the associated denial of the motion to continue summary judgment proceedings pending limited discovery.

16

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rolled down for the first ten minutes of the stop, his decision not to exit the vehicle,

his “challeng[es to] the agent’s authority,” and his putting multiple forms of

identification on the window for the first half of the stop, “impeded the agent’s

efforts to complete his investigation” and “prohibited [the agents] from asking

questions,”

therefore

justifying

a

thirty-four

minute

suspicionless

detention.

The district court concluded that it was irrelevant whether Rynearson

had the right to take any of the actions he did. ROA.485-ROA.486.

As for the ten to fifteen minute period that Perez took to call Laughlin, the

district court concluded that Perez did so in order to “confirm [Rynearson’s]

citizenship” and that this was an “efficient means” to do so.

Moreover, the district court held, this could not have unlawfully extended the

detention because only “continued questioning after the confirmation of citizenship

… impermissibly lengthens a stop.” ROA.487.

The district court alternatively justified the extended detention on the ground

that Lands had developed reasonable suspicion that Rynearson was trafficking

drugs, either in his door compartment or by serving as a lead vehicle for a

contraband smuggler.

The district court based this conclusion on

Rynearson declining to roll down his window, “repeatedly challeng[ing] the

agents” and “combative behavior,” making multiple phone calls, declining to exit

the

vehicle,

and

purportedly

“refus[ing]

17

immediately

to

turn

over

his

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identification.”

The district court concluded the “agents acted as

quickly as possible to dispel any notions of wrongdoing.” ROA.487. Accordingly,

while finding that the thirty-four minute detention was “longer than some stops

that occur at checkpoints,” it “did not exceed a constitutionally permissible time.”

The district court entered final judgment dismissing all of Rynearson’s

claims, and this appeal followed. ROA.494; ROA.495.

SUMMARY OF ARGUMENT

Because the Fourth Amendment ordinarily demands that law enforcement

have some individualized suspicion before an individual is seized, it tightly

circumscribes the operation of interior checkpoints where individuals are seized

despite no suspicion of criminal activity or unlawful presence.

Under the Fourth

Amendment, Border Patrol agents may detain individuals at such checkpoints only

for a few minutesthe reasonable time necessary to make a brief and diligent

inquiry into immigration status.

The detention of Rynearson for thirty-four

minutes was neither brief, nor much of an inquiry into immigration status.

The

Defendants did not even begin an immigration inquiry until eleven minutes into the

seizure.

Rather, they spent the overwhelming majority of the detention either

pursuing no inquiry at all, delaying any inquiry by calling in an off-site supervisor

in lieu of the readily available one, or making contact with Rynearson’s military

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Case: 13-51114

employer.

This

Document: 00512547895

detention

falls

far

outside

Page: 29

of

an

Date Filed: 02/28/2014

objectively

reasonable

immigration stop under clearly established law.

The district court laid the entire delay at Rynearson’s feet, insisting that his

conduct prohibited the Defendant agents from conducting a diligent immigration

inspection.

But this impermissibly reads the record in the light most favorable to

the governmentthe moving party.

Viewed in the light most favorable to

Rynearson, there is no question that the agents were fully able to pursue an

immigration inquiry, when they got around to it. Immediately upon asking, agents

learned Rynearson’s immigration status and received passports.

Indeed, none of

the conduct of which the district court evidently disapprovessuch as questioning

whether the agents are conducting a seizure in accordance with constitutional

requirementscould have any conceivable bearing on the entire second half of the

detention, when Perez either completed or abandoned the duty to investigate

immigration status and embarked instead on reporting Rynearson’s conduct to his

employer.

More fundamentally, the district court’s reasoning turns the Fourth

Amendment

on

its

head.

The

Fourth

Amendment

imposes

the

burden

of

investigatory diligence on the government, not the seized citizen.

Not only does

the

Fourth

Amendment

not

compel

any individual to proactively

further

a

government investigation, but it protects an individual’s right to refuse cooperation

without suffering an extended suspicionless detention in response.

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The district court’s reasonable-suspicion analysis is equally crosswise to

fundamental Fourth Amendment principles.

reasonable

suspicion

that

Rynearson

was

No agent claimed that he held any

engaged

in

criminal

activity,

nor

articulated any facts on which such (non-existent) reasonable suspicion might be

based.

The district court’s post hoc invention cannot substitute for the agents’

professional judgment. It fails on its own terms, regardless, because it is based on

Rynearson’s exercise of his rights, disregards factors demonstrating his conduct is

more consistent with innocence than drug trafficking, and cannot escape the fact

that the agents did not pursue (diligently or otherwise) any investigation of

criminal activity.

The district court compounded its misapplication of clearly established

constitutional

law by

misapplying

the

law

regarding

discovery in

qualified

immunity cases. The district court denied any discovery to Rynearson prior to the

ruling

on

summary

judgment,

notwithstanding

Rynearson’s

identification

of

disputed facts that were material under even the district court’s narrow conception

of the Fourth Amendment’s protections. At the very least, Rynearson is entitled to

limited discovery before a ruling on summary judgment.

ARGUMENT

I. STANDARD OF REVIEW

This Court applies “de novo review to summary judgment motions and

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evaluate[s] the case under the same standards employed by the district court.”

Goodson v. City of Corpus Christi, 202 F.3d 730, 735 (5th Cir. 2000).

If “the

evidence is sufficient for a reasonable jury to return a verdict for the nonmoving

party,” then summary judgment cannot be granted.

Id.

The “evidence and all

reasonable inferences to be drawn therefrom” must be reviewed “in the light most

favorable to the nonmovant.” Id. This Court reviews “the district court’s decision

to preclude further discovery prior to granting summary judgment” for abuse of

discretion.

Curtis v. Anthony, 710 F.3d 587, 594 (5th Cir. 2013) (per curiam)

(internal quotation marks omitted).

A law enforcement officer is entitled to summary judgment on the basis of

qualified immunity only if no reasonable jury could conclude that “the officer’s

conduct violated a constitutional right” that was “clearly established.”

Saucier v.

Katz, 533 U.S. 194, 201 (2001), overruled in part on other grounds, Pearson v.

Callahan, 555 U.S. 223 (2009).

A right is “clearly established” so long as an

officer has “fair warning” that his conduct was unconstitutional. Club Retro, LLC

v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009). “The law can be clearly established

despite notable factual distinctions between the precedents relied on and the case

then before the Court, so long as the prior decisions gave reasonable warning that

the conduct then at issue violated constitutional rights.”

marks omitted).

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II. THE DETENTION OF RYNEARSON FOR THIRTY-FOUR MINUTES EXCEEDED THE MINIMAL INTRUSION ALLOWED FOR A SUSPICIONLESS IMMIGRATION CHECKPOINT STOP

A suspicionless seizure at an interior immigration checkpoint violates the

Fourth Amendment if it extends even a few minutes past the time necessary for a

brief inquiry into immigration status.

Viewed in the light most favorable to

Rynearson, the duration of the detention in this case is not

constitutional limits.

even close to

It is undisputed that the Defendants did not ask the first question related to

immigration status until eleven minutes into a thirty-four minute detention, that the

Defendants called an off-site supervisor who had to travel for several minutes

rather than call the on-site supervisor, that Rynearson answered every question

asked except for the name of his commanding officer, and that Rynearson

produced two identification cards and two passports during the detention.

It is

further undisputed that the Defendants prolonged the detention for ten to fifteen

minutes to call Rynearson’s employer. Finally, it is undisputed that a drug dog did

not alert on Rynearson’s vehicle and that the Defendants initiated no other inquiry

into drug trafficking.

There are material disputes of fact, however, regarding whether there was

any reason to call an off-site supervisor, whether Perez had completed his

immigration inspection before he extended the detention to call Rynearson’s

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employer,

and

whether

Perez

extended the detention

even

after

confirming

Rynearson’s

military

status

in

order

to

speak

directly

with

Rynearson’s

commander.

Viewed in the light most favorable to Rynearson, the agents’

disregard for almost every limit upon the scope and duration of a suspicionless

immigration checkpoint stop violated clearly established law.

The Overall Detention Extended Far Beyond The Time Reasonably Necessary To Inquire Into Immigration Status

Because suspicionless checkpoint stops carve out a “narrow exception” to

A.

the normal rule that an individual may not be seized absent individualized

suspicion, Machuca-Barrera, 261 F.3d at 431, the Fourth Amendment is satisfied

only if “the appropriate limitations on the scope of the stop” are followed,

Martinez-Fuerte, 428 U.S. at 567.

That means the stop may last no longer than

“the amount of time reasonably necessary … to ask a few questions about

immigration status.” Machuca-Barrera, 261 F.3d at 435. In that time, the Border

Patrol may conduct a “visual inspection of the vehicle … limited to what can be

seen without a search.”

Martinez-Fuerte, 428 U.S. at 558.

Agents may also ask

questions beyond the scope of the stop, or engage in other investigations unrelated

to the scope (such as drug dog sniffs), but only “as long as in sum [the questions]

generally relate to determining citizenship status” and “such questions do not

extend the duration of the stop.” Machuca-Barrera, 261 F.3d at 432 n.21, 433.

In total, the time necessary for this brief inquiry is at most a few minutes.

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Martinez-Fuerte, 428 U.S. at 547 (upholding constitutionality of suspicionless

checkpoints where detentions were three to five minutes); Machuca-Barrera, 261

F.3d at 435 (“[A] couple of minutes … is within the permissible duration of an

immigration checkpoint stop.”).

Any detention beyond that brief time—or any

detention after the immigration inquiry is concluded, United States v. Portillo-

Aguirre, 311 F.3d 647, 657 (5th Cir. 2002)—must be based on “consent or

probable cause,” Martinez-Fuerte, 428 U.S. at 567.

Or, if the “initial routine

questioning generates reasonable suspicion of other criminal activity, the stop may

be lengthened to accommodate its new justification.” Machuca-Barrera, 261 F.3d

at 434.

Agents violate clearly established law if they detain someone even a few

minutes beyond the permissible length of detention.

United States v. Jones, 234

F.3d 234, 241 (5th Cir. 2000) (three minutes); United States v. Dortch, 199 F.3d

193, 196, 198 (5th Cir. 1999) (four minutes).

1. The Agents Failed to Exercise Diligence and Extended the Detention Beyond a Reasonable Time with Dilatory Tactics and Irrelevant Questioning

The thirty-four minute detention of Rynearson far exceeded the few minutes

reasonably necessary to ask a few questions regarding immigration status.

That

facially fails the test established in Machuca-Barrera and violates the Fourth

Amendment.

The agents unlawfully extended the stop in three principal ways: delaying

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asking immigration-related questions while conducting unrelated investigations,

engaging in no apparent inspection or investigation whatsoever for eleven minutes,

and holding Rynearson for an additional ten to fifteen minutes while calling

Laughlin in order to confirm Rynearson’s “military identity” and to engage in a

discussion

with

checkpoint stop.

Security

Forces

and

Rynearson’s

commander

regarding

the

First, Lands delayed asking immigration-related questions while seeking

information on other, unrelated topics, failing the constitutional test that law

enforcement must “diligently pursue[] a means of investigation” that was “likely to

confirm or dispel [the reason for the stop] quickly.”

United States v. Macias, 658

F.3d 509, 522 (5th Cir. 2011) (internal quotation marks omitted). In the context of

a

suspicionless

immigration

checkpoint

stop,

diligence

requires

pursuit

of

information related to an individual’s immigration status.

Lands does not dispute

that the first time he asked Rynearson his immigration status was eleven minutes

into the stop.

Prior to that, he interrogated

Rynearson regarding his vehicle ownership, his military status, and his place of

assignment.

ROA.335, ROA.337; Video, 1/0:26, 1/2:17-2:23.

The district court

held that Lands’ initial questions regarding vehicle ownership could be considered

within the scope of the stop and did not significantly delay the stop.

But the court disregarded Lands’ lack of diligence in questioning Rynearson

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regarding his military assignment rather than his immigration status.

That is contrary to Supreme Court and this Court’s precedent. An agent may not

“unconstitutionally prolong [an individual’s] detention by asking irrelevant and

unrelated questions without reasonable suspicion of criminal activity.”

658 F.3d at 512.

Macias,

Nor may an agent unconstitutionally prolong an individual’s detention by

simply waiting and conducting no inspection at all.

The district court held that

Rynearson, and not Lands, was solely responsible for the eleven-minute-long delay

in asking any questions about immigration status. ROA.484. As discussed further

below, there is no reasonable view of the evidence under which Lands’ entire delay

before asking the first question related to immigration status can be attributed to

Rynearson. See infra, pp. 30-33.

Moreover, Lands failed to exercise diligence in requesting and pursuing

immigration-related

documents.

Lands

stated

that

he

needed

to

“inspect”

Rynearson’s

identification,

and

began

copying

down

information

from

the

identification Rynearson had placed on the window—a driver’s license and a

military identification card.

ROA.336-ROA.337; Video, 1/2:10-2:38.

However,

Lands did not ask for a passport and “did not acknowledge” Rynearson’s offer of a

passport, ROA.471, despite the fact that in Lands’ view the other identification

cards that Rynearson produced did not “mean anything” because they were not

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“immigration documents,” ROA.340; Video, 2/1:18-1:21.

Date Filed: 02/28/2014

Diligence requires that

an agent inform an individual who produces irrelevant identification that it will not

suffice. At the least, an agent must respond to an offer of relevant documentation

(a passport)not sit on the knowledge that the produced documents are irrelevant

for approximately nine minutes before so informing the detainee.

Compare

ROA.337; Video, 1/2:07 (Rynearson places identification in the window two

minutes

into

the

stop),

with

Video,

2/1:18

(Lands

states

that

identification “doesn’t mean anything” over eleven minutes into the stop).

The

district court gives no plausible accounting of how Lands’ unvoiced pursuit of

physical inspection of documents he himself termed meaningless represented

diligence in pursuing the immigration-related scope of the stop.

Second, for much of the time that Rynearson was detained, neither Lands

nor the other agents pursued any investigation whatsoever. Specifically, counting

only the time prior to Perez’s arrival, Rynearson waited for about ten minutes

while the agents pursued no investigation.

Video, 1/5:06-9:52, 2/03:03-07:31.

Rynearson

not

himself

prompted

That time would have been even longer had

Lands

to

engage

in

conversation

and

an

immigration inspection on several occasions, including the conversation in which

Lands for the first time asked aboutand received the answer regarding

Rynearson’s immigration status.

See ROA.339, ROA.341; Video, 1/9:53, 2/1:24

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(Rynearson

asks

the

agents

to

re-engage

in

citizenship question about one minute later).

conversation,

resulting

in

the

After about ten minutes, Lands

indicated a supervisor had been called.

ROA.340; Video, 2/0:32.

The district

court held that summoning a supervisor was reasonable, ROA.485, but that does

not explain Lands’ abandonment of the inspection prior to that point. Furthermore,

neither Lands nor the government has provided any justification for calling an off-

site supervisor rather than referring the situation to the on-site supervisor.

See

ROA.265 (Perez received a briefing from on-site supervisory agent upon his

arrival). That, too, fails the diligence test and unnecessarily extended the stop. Cf.

Dortch, 199 F.3d at 200 (government unduly delayed arrival of canine unit when it

was not requested until 9-10 minutes into the stop and the “officers offered no

justification for this delay”). 3

Third,

as

discussed

below,

the

Defendants

impermissibly

extended

Rynearson’s detention in order to pursue an irrelevant inquiry into Rynearson’s

military status and to convey the details of the checkpoint encounter to individuals

associated with the Air Force, Rynearson’s employer. See infra, pp. 42-48.

In sum, the agents violated the Fourth Amendment when they extended the

immigration stop long beyond the “the amount of time reasonably necessary … to

3 Rynearson moved for a continuance to obtain limited discovery regarding, inter alia, “why Defendant Lands summoned an off-site supervisor, extending the detention, when there appears to have been an on-site supervisor.” ROA.298. The district court denied all discovery, however. See infra, pp. 61-64.

28

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ask a few questions about immigration status.”

Page: 39

Date Filed: 02/28/2014

Machuca-Barrera, 261 F.3d at

435. Although the agents may choose between alternative “efficient means” in

pursuing

the

scope

of

the

stopimmigration

status—they

must

“diligently

pursue[] a means of investigation” that is “quick[].” United States v. Brigham, 382

F.3d 500, 511 (5th Cir. 2004) (en banc).

The agents failed to conduct the

inspection diligently over the course of this thirty-four minute immigration

inspection when they (i) pursued unrelated lines of investigation, particularly

Rynearson’s military status, for almost half of the stop; (ii) did not ask the first

immigration-related question until eleven minutes into the detention; (iii) failed to

inform Rynearson that his produced identification was meaningless until the

eleventh minute; (iv) failed to acknowledge or accept Rynearson’s passport until

seventeen minutes into the stop; and (v) abandoned the inspection for long periods

of time while calling off-site personnel instead of using on-site supervisors.

2.

The Agents Are Responsible for the Dilatory Tactics that Extended the Detention

The

district

court upheld this

extended

detention

on the ground

that

Rynearson’s

actions

were

“the

sole

reason

for

any

delay

in

determining

immigration status.” ROA.484. The district court’s decision absolving the Border

Patrol agents of all responsibility for the conduct and length of the detention rests

on four critical errors.

First, the district court’s holding that Rynearson’s actions “impeded” and

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prohibited [the agents] from asking questions,” placing the entire detention

“outside of the officer’s control,” ROA.486, disregarded the record evidence

favoring Rynearson.

See Scott v. Harris, 550 U.S. 372, 378, 380 (2007) (holding

court must “view the facts and draw reasonable inferences in the light most

favorable to the party opposing” summary judgment except where a fact is

“blatantly contradicted by the record, so that no reasonable jury could believe it”).

The district court identified four actions by Rynearson that purportedly prohibited

the agents from asking questions, understanding the answers, or conducting an

immigration inspection: “refusing to lower his window, refusing to exit the vehicle,

challenging the agent’s authority, and refusing to hand over identification cards.”

Viewed in the light most favorable for Rynearson, the record shows

that these actions did not occur or did not have the all-powerful effect of shutting

down the immigration inspection.

Instead, Rynearson answered every single

question asked but one (the name of his commanding officer, ROA.344), and

cooperated with every single request other than exiting his vehicle and rolling

down his window for the first ten minutes of the detention.

a. There is no sense in which Lands was “prohibited … from asking

questions,” ROA.486—or from hearing and understanding the answers.

Indeed,

the district court acknowledges as much, recognizing that Rynearson’s actions did

not preclude Lands from “ask[ing] for identification.”

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documents that Lands asked exactly eight questions in the first half of the detention

(and another three questions when he released Rynearson).

Rynearson answered

every single one of these questions, and Lands understood and confirmed every

single one of the answers without asking Rynearson to repeat himself.

See

Video,

1/0:01-0:35,

1/2:17-2:23,

2/1:23-1:26.

From this interrogation, Lands learned that Rynearson owned the vehicle he was

driving, that he was in the military, that he was stationed in Del Rio, and that he

was an American citizen.

1/2:18-2:23, 2/1:24-1:26.

ROA.335-ROA.337, ROA.341; Video, 1/0:27-0:34,

Lands learned the last fact as soon as he asked for it.

Accordingly, his immigration questioning was “impeded,” if at all, only by his own

failure to ask immigration-related questions.

Furthermore, Rynearson partially

rolled his window down about ten minutes into the detention, at which point Lands

confirmed that he could hear Rynearson, although asking him to roll the window

down further. ROA.339-ROA.340; Video, 2/0:18.

b. The district court’s assertion that the immigration inspection was

impeded by Rynearson’s “refus[al] to hand over identification cards” falls even

further afield.

Although Lands stated that he needed to “inspect”

Rynearson’s identification, Rynearson understood that to mean a visual inspection,

as indicated by Lands’ beginning to copy data from the identification cards when

Rynearson placed them in the window, ROA.336-ROA.337; Video, 1/2:10-2:38.

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When Perez did clearly make a request for physical inspection of the passports,

Rynearson immediately complied. ROA.342; Video, 2/7:45.

More to the point, Lands’ purported inability to obtain Rynearson driver’s

license and military identification for physical inspection cannot possibly have

impeded

his

completion

of

an

immigration

inspection

when

Lands

himself

considered those documents irrelevant to the task at hand, stating that they did not

“mean

anything”

with

immigration documents.”

respect

to

immigration

status

ROA.340; Video, 2/1:18-1:21.

because

they

“aren’t

Yet when Rynearson

offered a document of clear relevancea passportLands “did not acknowledge

the offer.”

As with his questioning, to the extent that Lands was

impeded in conducting an immigration inspection, it was his own doing.

c. Rynearson’s decision to decline Lands’ request to exit the vehicle also

had no effect on the agent’s ability to conduct an immigration inspection. This is

evident from the fact that the paradigmatic immigration inspection involves

making inquiry of a seated driver (and possibly passengers) in a momentarily

stopped vehicle.

See Martinez-Fuerte, 428 U.S. at 545-546 (describing standard

operation of checkpoints that were held constitutional, which in no case required

individuals to exit their vehicles).

Indeed, as described below, the Fourth

Amendment does not allow an agent to require an individual to exit the vehicle in a

suspicionless checkpoint stop.

See infra, pp. 39-40.

32

But even were it otherwise,

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Lands himself averred that Rynearson’s declination of his “request” to exit the

vehicle did not extend the stop because he simply decided to complete the

inspection with Rynearson in the vehicle.

Given that an immigration

inspection is, by design and constitutional limitation, conducted with the individual

in the vehicle, there is no plausible claim that it cannot be conducted unless an

individual exits the vehicle.

Second, the district court’s analysis of Rynearson’s actions was predicated

on the court’s conclusion that the minimal intrusion allowed under Martinez-

Fuerte encompasses compliance by the detained individual with all agent requests,

without any challenge or question.

See ROA.486 (“[C]ourts have expected

individuals to respond to officers stationed at immigration checkpoint[s] when they

weigh the personal intrusion against the public interest.”); ROA.486 (faulting

Rynearson for “challenging the agent’s authority”).

It bears repeating that

Rynearson did answer questions, allowing the agents to fully pursue the scope of

the immigration-related stop, and then some.

Regardless, the Fourth Amendment

precludes the Border Patrol from extending a detention because an individual

declined to agree to the agents’ requests when they have no authority to compel

compliance.

The district court held that Rynearson had not established that Lands

requests for him to exit the vehicle or to roll down the window violated the Fourth

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Amendment, and that the additional intrusion of those requests was minimal and

permissible.

But that holding answers the wrong question.

The issue is not whether these requests themselves add to the intrusion. They do,

but Rynearson did not agree to these requests and therefore avoided that additional

intrusion.

What he could not avoid was the Border Patrol’s extended seizure of

him on the basis, in part, of his decision to stand on his rights.

The issue is thus

whether the Fourth Amendment permits the Border Patrol to extend the duration of

a suspicionless immigration stop (an unquestioned additional intrusion), solely

because an individual stands on his rights not to exit the vehicle, produce

identification, or answer questions.

The answer under clearly established law is “no.”

a.

The “Fourth Amendment does not impose obligations on the citizen.”

Hiibel v. Sixth Judicial Dist. Ct. of Nev., 542 U.S. 177, 187 (2004). Accordingly,

while “the Constitution does not forbid law enforcement officers from asking,” an

individual is “under no obligation to answer the questions” in an investigative stop.

United States v. Shabazz, 993 F.2d 431, 437 (5th Cir. 1993). Nor may a detention

be extended on the basis of an individual’s exercise of his rights.

Because the

detainee “is not obliged to respond,” it is only if the “detainee’s answers provide

the officer with probable cause”—and not if he stands on his rightsthat the

detention can be extended; otherwise “he must then be released.”

34

Berkemer v.

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McCarty, 468 U.S. 420, 439-440 (1984).

Page: 45

Date Filed: 02/28/2014

This freedom to decline to answer questions extends as well to other

requests, such as the request that an individual produce identification.

Where an

individual “may decline an officer’s request without fearing prosecution”—as

when no positive law requires compliance—a “refusal to cooperate, without more,

does not furnish the minimal level of objective justification needed for a detention

or seizure,” and likewise does not justify the extension of a suspicionless seizure.

See Florida v. Bostick, 501 U.S. 429, 437 (1991).

Regardless of the type of

request, the Fourth Amendment provides no authority to the government to demand

compliance. Hiibel, 542 U.S. at 187.

The district court concluded otherwise in reliance on the description of an

immigration-related stop in United States v. Brignoni-Ponce, 422 U.S. 873 (1975).

See ROA.486.

But that overreads Brignoni-Ponce.

government’s description of a typical roving stop.

The passage quoted was the

See Brignoni-Ponce, 422 U.S.

at 880 (“According to the Government, [a]ll that is required of the vehicle’s

occupants is a response to a brief question or two and possibly the production of a

document evidencing a right to be in the United States.”)

(quoting government’s

brief; alteration in original).

Although the Supreme Court in Martinez-Fuerte

likewise quoted the government’s description from Brignoni-Ponce, Martinez-

Fuerte, 428 U.S. at 558 (quoting Brignoni-Ponce, 422 U.S. at 880), the Court was

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not presented with any question regarding particular investigative inquiries or any

individual’s required response to them, see id. at 567.

More fundamentally, the principle that “the Fourth Amendment does not

impose obligations on the citizen,Hiibel, 542 U.S. at 187, does not change

depending on the type of seizuremuch less operate more permissively for

government action during a suspicionless seizure as compared to an investigative

stop.

b. There is no positive law requiring a citizen to exit his vehicle, to answer

agents’ questions, or to produce identification at a Border Patrol checkpoint.

Certainly, the government has not once in this case asserted any such authority.

And the statutory authority for suspicionless Border Patrol checkpoints authorizes

the Border Patrol to interrogate only aliens and any “person believed to be an

alien”—not individuals for whom there is no suspicion of alien statusand to

inspect vehicles for aliens.

8 U.S.C. §§ 1357(a)(1), (a)(3); see Martinez-Fuerte,

428 U.S. at 553 n.8.

On the latter point, the Fourth Amendment curtails the

inspection during a suspicionless stop to a visual inspection only.

Fuerte, 428 U.S. at 558.

Martinez-

Moreover, although aliens must carry documentation of their status, 8 U.S.C.

§ 1304(e), there is no legal requirement that citizens carry, much less produce on

demand, evidence of their right to be present in the country.

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Rynearson did

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produce documentation, to include two passports. But the district court’s opinion

holding that it was constitutional for the Border Patrol to detain Rynearson for

thirty-four minutes in part because he “refus[ed] to hand over identification cards,”

ROA.486, misunderstands what the Fourth Amendment permits of the government

and demands of the people. It would allow the Border Patrol to detain anyone who

does not produce identification for an extended period of time, without any

reasonable suspicion of criminal activity or alien status. See ROA.486.

In sum, regardless of the district court’s view of what “courts have

expected” a citizen to do when faced with a suspicionless checkpoint, ROA.486,

the law is well-established that the Fourth Amendment does not compel him to

answer questions or produce identification documents.

Hiibel, 542 U.S. at 187

(“[T]he Fourth Amendment itself cannot require a suspect to answer questions.”).

And the Fourth Amendment’s strictures on government action—i.e., the tight

limits

upon

the

government’s

ability

to

detain

individuals

at

suspicionless

checkpoints—are not loosened by a citizen’s decision to stand on his rights.

See

Machuca-Barrera, 261 F.3d at 435 (It “would make a mockery of the reasonable

suspicion and probable cause requirements … if citizens’ insistence that searches

and seizures be conducted in conformity with constitutional norms could create the

suspicion or cause that renders their consent unnecessary.”) (internal quotation

marks omitted; alteration in original).

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c. The

district

court

justified

imposition

of

a

Date Filed: 02/28/2014

window-rolled-down

requirement on the ground that the Border Patrol is entitled by the Fourth

Amendment

to

“facilitate

the

asking

of

requisite

immigration

questions.”

But, as discussed above, Lands had no difficulty in asking

the requisite immigration questions.

He was able to understand Rynearson’s

answers, make eye contact with Rynearson, and observe his demeanor. The Fourth

Amendment’s permission of a brief inquiry into immigration status does not

mandate more than that, and does not permit an extended detention because an

individual did not roll down his window for part of the stop.

d. The district court’s approval of the extended detention of Rynearson in

part because he “refus[ed] to exit the vehicle,” ROA.486, also fails under these

principles.

First, as the district court acknowledged, the requirement that an

individual exit the vehicle incident to a suspicionless stop is an “additional

intrusion,” no matter how slight.

Pennsylvania v. Mimms, 434 U.S. 106, 111

(1977) (per curiam); see ROA.484 (calling it an “additional invasion” but a “de

minimis” one).

But Martinez-Fuerte does not permit the Border Patrol to intrude

upon a citizen’s privacy one degree beyond its limits. See 428 U.S. at 567 (“[O]ur

holding today is limited to the type of stops described in this opinion.”).

Moreover, mandating that an individual exit the vehicle would eviscerate the

limitations upon the visual inspection of a vehicle and driver at a suspicionless

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checkpoint, which is “limited to what can be seen without a search.”

Martinez-

Fuerte, 428 U.S. at 448. That means what can be seen in plain view, United States

v. Arredondo-Hernandez, 574 F.2d 1312, 1314 (5th Cir. 1978), and what may be

seen in plain view is limited to “that portion of an interior of an automobile which

may be viewed from outside the vehicle by either inquisitive passersby or diligent

police officers.”

Texas v. Brown, 460 U.S. 730, 740 (1983).

If a Border Patrol

agent

could

require

any

individual

stopped

at

a

suspicionless

immigration

checkpoint to exit the vehicle, absent any individualized suspicion, it would expose

far more of the individual’s car and his person than would be otherwise visible to

inquisitive bystanders, expanding the scope of an officer’s visual inspection in the

ordinary course beyond constitutional limits.

Although the Supreme Court has held this additional intrusion was justified

in a traffic stop, the officer safety justifications present there are inapplicable to

suspicionless immigration checkpoints where agents are present en masse, under

well-lit permanent fixtures, and control the entire traffic flow.

See, e.g., Mimms,

434 U.S. at 111 (discussing “hazard of accidental injury from passing traffic”).

Moreover, the Supreme Court expressly declined to hold that law enforcement may

order an individual out of the vehicle during any stop, but allowed such an

intrusion only “once a motor vehicle has been lawfully detained for a traffic

violation.”

Id.

at

111

n.6.

Contrary to the district court’s interpretation, the

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Supreme Court did not hold that this intrusion was warranted whether it “follows a

suspicionless stop or one with probable cause.”

Instead, the Supreme

Court simply declined to distinguish between different levels of suspicion-based

stops. Mimms, 434 U.S. at 110.

In sum, both because it did not affect the agents’ ability to conduct an

immigration inspection and because the agents lacked the authority under the

Fourth Amendment to demand it, the agents cannot justify the thirty-four minute

detention of Rynearson on the ground that he declined to exit the vehicle.

Third , the district court wrongly pretermitted any inquiry into whether the

Border Patrol agents were diligent by concluding that

Rynearson’s actions,

whether permitted or not, were solely responsible for the extended detention. The

district court’s reliance on United States v. Sharpe, 470 U.S. 675 (1985), is

misplaced. See ROA.486. It is only when police are diligent and an individual’s

“evasive” actions of “elud[ing] the police” contribute to the prolonging of the

detention that a detention may be permitted. Sharpe, 470 U.S. at 688 (upholding a

20-minute stop because “the police have acted diligently and a suspect’s actions

contribute to the added delay about which he complains”) (emphasis added).

Where, as here, an individual’s actions are not “evasive” or “elud[ing]” a police

investigative stop, the government may not extend a suspicionless encounter in

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response, even if it would be more convenient for the Border Patrol for individuals

to choose to consent to all agent requests.

Finally,

even

if

it

were

constitutionally

permissible

to

extend

an

immigration inspection based on an individual’s exercise of his rights, at most

Rynearson’s exercise of his rights accounts for less than six minutes of the thirty-

four minute detention. That is the total time in which both he and Lands engaged

in their discussions regarding Lands’ request for Rynearson to roll down his

window and to exit the vehicle and Rynearson’s questions regarding Lands

authority, plus Rynearson’s answers to all of Lands' questions.

The district court

describes

Rynearson’s

“challenging the agent’s authority” as precluding the

immigration inspection, ROA.486, as if

Rynearson delivered an unrelenting

monologue and the agents could not possibly get a word or question in edgewise

for thirty-four minutes. Of course, the agents could askand did ask, and received

answers tonumerous questions. See supra, pp. 31-32. Moreover, the total time

that Rynearson occupied in speaking to the agentsincluding questions regarding

their authority and everything elsewas roughly three minutes and eighteen

seconds. Thus, Rynearson did not filibuster the agents. From the very beginning,

when Lands asked and received answers to other questions, it is clear that his

ability to conduct the stop was entirely within his control. And none of the actions

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identified by the district court has any bearing on the last seventeen minutes of the

stop.

B. Perez’s Investigation Of Military Status For Ten To Fifteen Minutes Unlawfully Extended The Detention

None of the district court’s four reasons for justifying the extended detention

of Rynearsonstaying in the car, rolling up the window for part of the time,

questioning whether the agents were conducting the seizure lawfully, and placing

identification on the window, ROA.486applies to the last seventeen minutes of

the detention. At about seventeen minutes into the stop, Perez had two passports in

his possession and had engaged in a brief conversation through a partially rolled

down window in which he indicated he could hear Rynearson.

See ROA.342-

ROA.343; Video, 2/7:31-8:37.

At some point thereafter, he physically examined

Rynearson’s passports and obtained a records check, from which investigation he

determined that Rynearson was an American citizen. ROA.266.

According to Lands, that process should take “a couple of minutes.”

Yet Rynearson was not further detained for a couple of minutes, but