from the United States District Court for the Southern
District of Texas
STEWART, Chief Judge, and DAVIS and ELROD, Circuit Judges.
E. STEWART, CHIEF JUDGE:
federal grand jury returned a three-count indictment charging
Rafael Tello with transporting an illegal alien within the
United States by means of a motor vehicle. At an immigration
checkpoint, the aliens were found hidden in a storage
compartment in the sleeper area of the tractor-trailer that
Tello was driving. The case proceeded to trial on the first
two counts. Midway through the trial, after the two Border
Patrol agents had testified, Tello moved to suppress the
evidence found during the immigration-checkpoint stop. The
district court denied the motion and the jury found Tello
guilty of both counts. Tello was sentenced to concurrent
terms of 27 months of imprisonment and two years of
supervised release. For the reasons below, we AFFIRM.
before 1:00 a.m. on August 1, 2017, a tractor-trailer entered
the primary inspection lane at the U.S. Border Patrol
checkpoint south of Falfurrias, Texas. Agent Villanueva was
on duty in the primary inspection lane. A Border Patrol
service canine and its handler were working with him.
was driving the tractor-trailer. Agent Villanueva's first
question was: "[A]re you a citizen - are you a United
States citizen?" He replied that he was a naturalized
citizen. Agent Villanueva was satisfied with this answer so
he did not ask for proof of citizenship.
Villanueva next asked Tello what he was hauling in the
trailer. He asked this question to give the Border Patrol
service canine more time to conduct a canine sniff of the
Because at that point, kind of I looked - because usually
when I start [questioning], I also keep in mind that I have
the K9 handler working with me; because sometimes, you know,
the vehicles coming up to our inspection, and the dog might
be alerting right away, but - and sometimes, we question
these occupants. And we might be doing a simple question, so
we might relieve the vehicle right away. But at this time,
the K9 [handler] kind of glanced over at me, you know, give
me a little bit more time. So that's kind of why I
questioned a little bit more.
answered that he was hauling carrots and handed the agent a
bill of lading. Agent Villanueva asked him whether he had
made any stops after loading the carrots in the trailer.
Tello answered that he was coming from Pharr, Texas and had
not made any stops. Agent Villanueva testified that Tello did
not appear to be nervous and there was no indication that he
was hiding anything.
canine handler told Agent Villanueva that he needed to send
the tractor-trailer to the secondary inspection area. The
agent then asked Tello for consent to search and backscatter
(x-ray) the tractor-trailer, and he agreed. This happened
about 30 seconds into the checkpoint stop.
secondary inspection area, another agent (Agent Reyes)
boarded the tractor-trailer to conduct a physical inspection
in advance of the backscatter inspection, a routine
precaution to minimize the risk of exposing possible
occupants to radiation. Under the bed in the sleeper area of
the tractor-trailer was a small hole through which Agent
Reyes could see a person's torso. He unlatched the bed
and found three persons hiding in the storage compartment.
These persons were citizens of Honduras who were illegally
present in the United States.
August 23, 2017, a federal grand jury returned a three-count
indictment charging Tello with transporting an illegal alien
within the United States by means of a motor vehicle in
violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(II)
November 16, 2017, the case proceeded to a jury trial on the
first two counts. During the one-day trial, the government
presented Agents Villanueva's and Reyes's testimony
on the details of the immigration-checkpoint inspection.
Midway through the trial, after the agents testified, Tello
moved to suppress the evidence found during the
immigration-checkpoint stop. Tello argued that the agents had
impermissibly extended the ...