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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 02-40688
Summary Calendar

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN ANTONIO MORENO-VARGAS,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Texas

December 18, 2002
Before GARWOOD, JOLLY, and SMITH, Circuit Judges.
GARWOOD, Circuit Judge:
Juan Antonio Moreno-Vargas appeals his conviction for
possession of cocaine with intent to distribute. Moreno contends
that the district court erred in denying his motion to suppress
evidence seized from his vehicle at the Sarita immigration
checkpoint. Citing City of Indianapolis v. Edmond, 531 U.S. 32,
121 S.Ct. 447 (2000), Moreno contends that his detention at the
checkpoint was illegal at its inception because the checkpoint has

a secondary programmatic purpose of drug interdiction, as evidenced
by the permanent presence of dogs cross-trained to detect drugs as
well as humans (the alert of the dogs being the same on detection
of either). This argument is without merit.
Moreno does not dispute that, as the district court found (on
the basis of ample, and virtually undisputed, evidence), the Sarita
checkpoint has as its primary programmatic purpose the enforcement
of the immigration laws. Edmond requires no more.
Edmond states "[o]ur holding also does not impair the ability
of police officers to act appropriately upon information that they
properly learn during a checkpoint stop justified by a lawful
primary purpose, even where such action may result in the arrest of
a motorist for an offense unrelated to that purpose." Id., 121
S.Ct. at 457 (emphasis added).1 In United States v. Machuca-
Barrera, 261 F.3d 425 (5th Cir. 2001), we held that "checkpoints
with the primary purpose of identifying illegal immigrants are
constitutional," id. at 431 (emphasis added), that in such a case
1See also id., 121 S.Ct. at 456 n.1:
". . . our judgment turns on the fact that the primary
purpose of the Indianapolis checkpoints is to advance the
general interest in crime control. THE CHIEF JUSTICE's
dissent also erroneously characterizes our opinion as
holding that the `use of a drug-sniffing dog . . . annuls
what is otherwise plainly constitutional under our Fourth
Amendment jurisprudence.' Post, at 458. Again, the
constitutional defect of the program is that its primary
purpose is to advance the general interest in crime
control." (emphasis added).
2

"[i]t is the length of the detention, not the questions asked, that
makes a specific stop unreasonable," id. at 432, and that where
"the primary purpose of the . . . checkpoint is to investigate
immigration status . . . we face only the question of whether the
suspicionless [checkpoint] stop . . . was sufficiently limited in
duration to pass constitutional muster." Id. at 434-35 (emphasis
added). In that case, we upheld the search despite the fact that
the Border Patrol Agent at the checkpoint had asked the defendant
about drugs, because the questioning was "within the permissible
duration of an immigration checkpoint stop." Id. at 435. We are
aware that in its footnote 2 Edmond states "we need not decide
whether the State may establish a checkpoint program with the
primary purpose of checking licenses or driver sobriety and a
secondary purpose of interdicting cocaine." Id., 121 S.Ct. at 457
n.2. However, we agree with the D.C. Circuit that this "footnote
seems divorced from the rest of the opinion" and that, as indicated
in other passages of Edmond above cited, a checkpoint is
constitutional if its primary purpose is lawful. United States v.
Davis, 270 F.3d 977, 979 (D.C. Cir. 2001). That is likewise the
necessary inference of our Machuca-Berrera holding discussed above.
Further, we cited Davis with approval in United States v. Green,
293 F.3d 855, 859 (5th Cir. 2002), in respect to determining "the
primary purpose of a checkpoint."
The Sarita checkpoint, where Moreno was stopped, is and has
3

been for over twenty-five years an established fixed immigration
checkpoint operated by the Border Patrol, the validity of which was
sustained in United States v. Martinez-Fuerte, 96 S.Ct. 3075, 3079,
3087 (1976), affirming United States v. Sifuentes, 512 F.2d 1402
(5th Cir. 1975) (table). We have long sustained such stops at this
checkpoint, including those where drugs were discovered (within the
scope of the immigration inquiry). See, e.g., United States v.
Rojas, 538 F.2d 670 (5th Cir. 1976); United States v. Medina, 543
F.2d 553 (5th Cir. 1976). Moreno does not argue, and did not argue
below, that the Sarita checkpoint would not be maintained were it
not for the fact that the immigration stops there often result in
interdiction of drugs, nor would the evidence support any such
finding, and the district court implicitly found to the contrary.
We accordingly hold that Moreno's immigration stop at the
Sarita checkpoint was valid because the checkpoint has as its
primary programmatic purpose the enforcement of the immigration
laws, regardless of whether or not it could also be said to have a
secondary programmatic purpose of drug interdiction.2
In the instant case, a dog alerted to Moreno's vehicle at the
primary inspection area, while a border patrol agent was
questioning Moreno about his citizenship (the dog was then outside
of the vehicle and no entry into it had been made). Thus, the
2The district court made no finding as to whether or not there
was any such secondary programmatic purpose.
4

agent had a reasonable suspicion before she had finished verifying
Moreno's citizenship and the presence of the dog did not affect the
duration of the stop.
The judgment is
AFFIRMED.
5