Page 37 - November December 2019 TPA Journal

prolongs the purpose of the stop. Although “all the reason[s] for the stop” were “out
of the way,” the defendant was not “free to leave”
Tello avers that the immigration-inspection purpose and refused to allow the officer to walk his dog
of the checkpoint stop was completed when Agent around the SUV. When the second officer arrived,
Villanueva received the answer that Tello is a the original officer retrieved his dog who alerted.
United States citizen and was satisfied by that Approximately seven or eight minutes had elapsed
answer. He argues that, as the agent admitted at since the officer had issued the warning ticket. A
trial, the questions about what he was hauling in his search “revealed a large bag of methamphetamine.”
trailer and whether he had any stops after loading The overall duration of the stop was 29 minutes.
the trailer were unrelated to his citizenship. Rather, The defendant moved to suppress the evidence and
the agent’s purpose in asking the questions was to the magistrate judge found that, because the post-
give the Border Patrol service canine more time to warning detention and search were not supported
conduct a canine sniff of the tractor trailer to look by reasonable suspicion, a Fourth Amendment
for violations of immigration law, which Tello violation had occurred. However, the magistrate
maintains extended the stop beyond its permissible judge concluded that, consistent with Eighth Circuit
scope and made it unconstitutional. precedent, the wait was a de minimis intrusion.
Adopting the magistrate judge’s factual findings
[w]e find that the canine sniff here did not prolong
and legal conclusions, the district court denied the
the immigration stop. Tello does not dispute that the
motion, and the Eighth Circuit affirmed. The
stop lasted approximately 30 seconds. Agent
Villanueva asked Tello about his citizenship, cargo, Supreme Court granted certiorari on the question of
and travel, all of which are permissible questions. “whether police routinely may extend an otherwise-
completed traffic stop, absent reasonable suspicion,
As we have stated, “questions about travel
to conduct a dog sniff.” The Supreme Court
including origin and destination would be
reversed, holding that authority for the traffic stop
commonplace for an agent to ask during an
immigration inspection.” ends “when tasks tied to the traffic infraction are—
or reasonably should have been—completed.” In
When Agent Villanueva started questioning Tello addition to determining whether to issue a traffic
about his citizenship, the canine and its handler ticket, an officer “may conduct certain unrelated
were already circling the tractor-trailer. Therefore, checks during an otherwise lawful traffic stop,” but
Agent Villanueva’s questioning occurred not in a way that “measurably extend[s] the
simultaneously with the canine sniff. At most, mere duration of the stop.” These inquiries, such as
seconds elapsed before the dog alerted and Tello checking a driver’s license, registration, and
consented to a search. insurance and determining whether there are
outstanding warrants, further the purpose of the
Moreover, the duration of the stop was significantly traffic laws and ensure “that vehicles on the road
less than or comparable to the time frames we have are operated safely and responsibly.”
found acceptable for immigration stops.
Tello argues that Rodriguez prohibits officers at
However, Tello criticizes the length-based approach immigration checkpoints from asking anything
to judging the permissible duration of a stop created other than a brief question or two directly about
by Machuca-Barrera and avows that it cannot citizenship and for supporting documentation.
survive Rodriguez. Tello’s argument overextends However, the Supreme Court recognized in
Rodriguez. Rodriguez involved a traffic stop. The Martinez-Fuerte that an immigration stop may take
officer checked the defendant’s license and up to five minutes, and the intrusion, which can
registration, the passenger’s license, and ran a include referral to secondary inspection, “is
records check on them. The officer then called for sufficiently minimal that no particularized reason
a second officer and issued a warning ticket. need exist to justify it.” “Border Patrol officers

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