Page 38 - November December 2019 TPA Journal

must have wide discretion in selecting the motorists from unreasonable search. The City moved to
to be diverted for the brief questioning involved,” dismiss the action. The district court granted the
and “incidents of checkpoint operation also must be City’s motion, finding that, while chalking may
committed to the discretion of such officials.” have constituted a search under the Fourth
Amendment, the search was reasonable. Because
Rodriguez does not change this law. Notably, we chalk this practice up to a regulatory exercise,
Rodriguez dealt with a traffic stop; this is an rather than a community-caretaking function, we
immigration stop where canine sniffs are more REVERSE.
relevant to the purpose of the stop. Rodriguez also
does not dictate a script that agents must follow. To determine whether a Fourth Amendment
Rather, Rodriguez simply allows for stops of a violation has occurred, we ask two primary
“tolerable duration”—a duration that is questions: first, whether the alleged government
circumscribed by the reason for the stop. The conduct constitutes a search within the meaning of
Supreme Court cautioned against investigation into the Fourth Amendment; and second, whether the
other possible crimes which add time to the stop and search was reasonable. We address each in turn.
can make the continued seizure unconstitutional.
…a search occurs when a government official
There is no evidence in this case that the canine was invades an area in which “a person has a
looking for drugs or other possible crimes. Agent constitutionally protected reasonable expectation of
Villanueva testified that the handler and canine were privacy.” Under Katz, a search is analyzed in two
conducting an immigration inspection. Agent parts: “first that a person exhibit an actual
Villanueva agreed that he “wanted to make sure that (subjective) expectation of privacy and, second, that
the dog had time to finish its inspection of the the expectation be one that society is prepared to
vehicle” and that it “probably takes a little more recognize as ‘reasonable.’” A “physical intrusion”
time for a Border Patrol K9 to sniff a tractor-trailer is not necessary for a search to occur under Katz.
than a four-door sedan.” The canine handler noted In accordance with Jones, the threshold question is
he was trying to determine whether “there’s an whether chalking constitutes common-law trespass
immigration violation, even something going on in upon a constitutionally protected area. Though
a vehicle that you can’t see, because someone’s Jones [the GPS tracking case. Ed. ] does not
hidden somewhere[.]” This type of checkpoint provide clear boundaries for the meaning of
operation, lasting approximately 30 seconds, is common-law trespass, . . . common-law trespass is
reasonable and fits squarely within the officials’ “an act which brings [about] intended physical
discretion and case law. contact with a chattel in the possession of another.”
Adopting this definition, there has been a trespass in
Tello makes a secondary argument: his consent did this case because the City made intentional physical
not dissipate the taint of the prior constitutional contact with Taylor’s vehicle. As the district court
violation. Because we find that the stop was properly found, this physical intrusion, regardless
constitutionally permissible, we are not obligated to of how slight, constitutes common-law trespass.
reach the consent issue. Nevertheless, we note that This is so, even though “no damage [is done] at all.”
Tello gave valid consent.
Our search analysis under Jones does not end there.
The district court’s judgment is AFFIRMED. Rather, once we determine the government has
trespassed upon a constitutionally protected area,
U.S.v. Tello, No. 18-40347, Fifth Circuit, May 21,
2019. we must then determine whether the trespass was
“conjoined with . . . an attempt to find something
or to obtain information.” Here, it was. Neither

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