Case: 15-40962        Document: 00513630671       Page: 1    Date Filed: 08/09/2016




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                      No. 15-40962                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                  August 9, 2016
                                                                           Lyle W. Cayce
           Plaintiff - Appellee                                                 Clerk

v.

JORGE ERVEY HIPOLITO-RAMIREZ,

           Defendant - Appellant




                     Appeal from the United States District Court
                          for the Southern District of Texas
                               USDC No. 5:15-CR-266-1


Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM:*
       Appellant Jorge Ervey Hipolito-Ramirez was indicted on three drug-
related counts in the Southern District of Texas. After the district court denied
his motion to suppress, Hipolito-Ramirez entered a conditional plea of guilty,
reserving the right to appeal the denial of the motion to suppress. We AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 15-40962
                                             I.
      On April 29, 2014, Appellant Jorge Ervey Hipolito-Ramirez and his
passenger approached an immigration checkpoint north of Laredo, Texas.
Hipolito-Ramirez drove a mid-size SUV and proceeded to the checkpoint,
where Agent Gustavo Flores, an eleven-year Border Patrol veteran, stopped
him for a routine immigration inspection. Pursuant to the inspection, at 5:03
PM, Agent Flores first asked whether Hipolito-Ramirez and his passenger
were United States citizens. Hipolito-Ramirez handed over their immigration
documents, which consisted of B-1, B-2 visas and I-94 permits. According to
Agent Flores, these documents are processed in a computer booth to run
criminal history checks and verify the names and crossing data of aliens
entering into the United States. The procedure is brief 1 and required at
immigration inspections for “processing somebody through the checkpoint with
a B-1, B-2 visa and an I-94.”
      Agent Flores then asked where Hipolito-Ramirez was going and why.
Hipolito-Ramirez said he was going to San Marcos to buy shirts for resale in
Mexico. Agent Flores thought that Hipolito-Ramirez was “speaking a little
loud” and seemed “nervous.” Because it was already after 5:00 PM, Agent
Flores asked if Hipolito-Ramirez planned to stay the night in San Marcos.
Hipolito-Ramirez answered no. These answers struck Agent Flores as
suspicious. In his personal experience, the outlets in San Marcos closed around
9:00 PM and, because it was a Tuesday, Hipolito-Ramirez would likely
encounter rush hour traffic in San Antonio during the already-long drive from
Laredo to San Marcos—leaving him little or no time to shop before the stores
closed. Agent Flores also thought a person traveling to the outlet malls at that
hour would typically spend the night.


      1   When Agent Flores ran the documents, the process took roughly four seconds.
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                                  No. 15-40962
        Agent Flores continued inspecting the SUV and, at 5:03:15 PM, spotted
two large suitcases located in the rear cargo area. Hipolito-Ramirez
volunteered that he buys shirts for $5 each at the outlets and resells them in
Mexico for two hundred pesos, and that the suitcases would store the shirts.
This statement further raised Agent Flores’s suspicions because he had never
seen any shirts that sold for $5 at the San Marcos outlets. At this point, Agent
Flores later testified: “[He] didn’t know what was going on. [He] knew the story
was off.” Accordingly, between 5:03:17 PM and 5:03:23 PM, Agent Flores called
for a dog to conduct a free air sniff of the vehicle. Flores waited behind the car,
and Agent Zayra Espinoza arrived with her assigned service canine, Toxy, less
than one minute later, at approximately 5:03:55 PM.
        At their arrival, Hipolito-Ramirez volunteered that he had previously
undergone an x-ray inspection at the border. Agent Flores went into the
processing booth to confirm this. Meanwhile, Agent Espinoza and Toxy walked
around the car as Toxy sniffed. Toxy did not alert at any point. Agent Flores
returned and asked Hipolito-Ramirez for consent to search the suitcases;
Hipolito-Ramirez consented. Agent Flores opened the suitcases and observed
that they appeared empty. Nevertheless, after he finished processing the
permits and visas—which raised no red flags—Agent Flores asked for consent
to further search the car. Hipolito-Ramirez again consented and moved the
vehicle to a secondary inspection area. During the ensuing search, Toxy alerted
to the two suitcases. Agent Espinoza opened the lining of the suitcases and
found nearly 11 kilograms of methamphetamine.
        Hipolito-Ramirez was arrested and indicted in the Southern District of
Texas     on   three   drug-related   counts.   He   moved     to   suppress   the




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                                      No. 15-40962
methamphetamine and the statements he made while under arrest, 2 arguing
inter alia that they resulted from an unconstitutionally prolonged seizure.
After a hearing at which Agent Flores and Agent Espinoza testified, a
magistrate judge recommended denying the motion on several grounds. The
district court adopted the magistrate judge’s report in full. Hipolito-Ramirez
then pled guilty, conditional on an appeal of the denial of the motion to
suppress. This appeal followed.
                                             II.
       “Where a district court has denied a motion to suppress evidence, we
review its factual findings for clear error and its conclusions of law de novo. We
view the evidence in the light most favorable to the party that prevailed below.
We may affirm the district court’s decision on any basis established by the
record.” 3
                                            III.
       The only issue on appeal is whether Agent Flores unlawfully prolonged
the stop at the immigration checkpoint. Hipolito-Ramirez concedes that Agent
Flores needed no justification to perform the initial stop and briefly investigate
his citizenship status. 4 He further concedes that Agent Flores could search his
luggage and otherwise prolong the stop once he provided consent. 5 Hipolito-
Ramirez, however, does challenge his detention during the approximately one-
minute period between when the investigation of his immigration status ended
and when he provided consent. Hipolito-Ramirez insists that by the time the
canine arrived, Agent Flores could have verified his citizenship status and



       2 He also moved to suppress evidence obtained from his cell phone. The district court
granted that motion, and it is not at issue on appeal.
       3 United States v. Pack, 612 F.3d 341, 347 (5th Cir.) (citations omitted), as modified

on denial of reh’g en banc, 622 F.3d 383 (5th Cir. 2010).
       4 See United States v. Machuca-Barrera, 261 F.3d 425, 431-33 (5th Cir. 2001).
       5 Id. at 435 & n.33.

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                                      No. 15-40962
completed the immigration stop. As a result, he argues that Agent Flores had
no justification for continuing to detain him while the canine search was
performed and thus unlawfully extended the stop beyond “the time needed to
handle the matter for which the stop was made.” 6
       We disagree. Hipolito-Ramirez is correct that “[t]he permissible duration
of an immigration checkpoint stop is . . . the time reasonably necessary to
determine the citizenship status of the persons stopped.” 7 But even so, Agent
Flores was entitled to prolong the stop if he had developed reasonable suspicion
of illegal activity by that point. 8 And as Agent Flores testified, his suspicions
were already aroused by Hipolito-Ramirez’s nervousness and dubious story.
This Court has recognized that “[i]nconsistent stories, especially when
combined with other facts, can give rise to reasonable suspicion.” 9 We conclude
that Agent Flores had developed “reasonable suspicion” of illegal activity by
the time the canine arrived based upon the combination of (1) Hipolito-
Ramirez’s implausible story, (2) his nervousness, and (3) his presence on a
known drug trafficking corridor. 10 Accordingly, Agent Flores was justified in
extending the stop while the canine search was performed, and the district
court did not err in denying the motion to suppress.
                                            IV.
       For the reasons stated above, we AFFIRM.




       6 Rodriguez v. United States, 135 S. Ct. 1609, 1612 (2015).
       7 Machuca-Barrera, 261 F.3d at 433.
       8 See, e.g., id. at 434; United States v. Ventura, 447 F.3d 375, 378 (5th Cir. 2006).
       9 United States v. Pena-Gonzalez, 618 F. App’x 195, 200 (5th Cir. 2015); accord United

States v. Bernal, 638 F. App’x 379, 379-80 (5th Cir. 2016) (collecting cases).
       10 United States v. Pack, 612 F.3d 341, 361-62 (5th Cir.) (concluding that reasonable

suspicion was created by the defendant’s extreme nervousness, conflicting story, and the fact
that he was traveling along a drug trafficking corridor), as modified on denial of reh’g en
banc, 622 F.3d 383 (5th Cir. 2010).
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