United States v. Avery

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-40625
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

AARON KEITH AVERY,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:18-CR-1094-1

Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:
*

Aaron Keith Avery was convicted of two counts of transporting an
undocumented alien. He argues that the district court erroneously denied his
motion to suppress evidence because the stop of his vehicle at the Falfurrias
Border Patrol checkpoint violated the Fourth Amendment. He contends that
the Fourth Amendment violation occurred because the primary purpose of the

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
May 11, 2020

Lyle W. Cayce
Clerk
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No. 19-40625
2
checkpoint was general crime control rather than the enforcement of
immigration laws.
On appeal from the denial of a motion to suppress, we review the district
court’s findings of fact for clear error and its conclusions of law de novo. United
States v. Lopez-Moreno, 420 F.3d 420, 429 (5th Cir. 2005). Evidence is viewed
in the light most favorable to the prevailing party, and “the clearly erroneous
standard is particularly strong” where, as here, the district court’s ruling is
based on live oral testimony. United States v. Gibbs, 421 F.3d 352, 357 (5th
Cir. 2005) (internal quotation marks and citation omitted).
“At a fixed checkpoint having the primary purpose of identifying illegal
immigrants, vehicles may be briefly detained in furtherance of that purpose
and their occupants questioned, all without either a warrant or any
individualized reasonable suspicion.” United States v. Jaime, 473 F.3d 178,
181 (5th Cir. 2006). The scope of immigration checkpoint stops “is limited to
the justifying, programmatic purpose of the stop: determining the citizenship
status of persons passing through the checkpoint.” United States v. Machuca-
Barrera, 261 F.3d 425, 433, 435 (5th Cir. 2001).
The district court did not err in rejecting Avery’s argument that the
agent’s questioning went beyond the reasonable scope and duration of an
immigration-related stop. In the brief stop, lasting about 35 seconds, the agent
asked Avery roughly four questions pertaining to his travels before requesting,
and receiving, Avery’s consent to search his trunk. See Jaime, 473 F.3d at 181;
cf. City of Indianapolis v. Edmond, 531 U.S. 32, 47-48 (2000). These were
permissible queries. See United States v. Tello, 924 F.3d 782, 787 (5th Cir.);
cert. denied, 140 S. Ct. 172 (2019). Avery thus fails to show that the district
court erred in denying his motion to suppress evidence discovered after the
stop. See Lopez-Moreno, 420 F.3d at 429. Because Avery has not shown that
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the initial stop was unconstitutional, we do not address his argument that the
unconstitutional stop tainted his consent to the search of his trunk.
The judgment is AFFIRMED.
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