rynearson request for en banc review before fifth circuit

No. 13-51114

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

RICHARD RYNEARSON,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA; AGENT LANDS, Border Patrol Agent,

Individually; RAUL PEREZ, Border Patrol Agent, Individually

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF TEXAS, DISTRICT COURT NO. 2:12-CV-24

APPELLANT’S PETITION FOR REHEARING EN BANC

JAVIER N. MALDONADO (attorney-in-charge) Texas Bar No. 00794216 Law Office of Javier N. Maldonado, P.C. 8918 Tesoro Dr., Ste. 575 San Antonio, TX 78217 Phone: 210-277-1603 Fax: 210-587-4001

Attorney for Appellant

Case: 13-51114 Document: 00513001855 Page: 1 Date Filed: 04/12/2015

i

CERTIFICATE OF INTERESTED PARTIES

No. 13-51114, Rynearson v. United States of America.

The undersigned counsel of record certifies that the following listed persons

and entities as described in the fourth sentence of Rule 28.2.1 have an interest in

the outcome of this case. These representations are made in order that the judges

of this court may evaluate possible disqualification or recusal.

Richard Rynearson, Plaintiff-Appellant

Javier N. Maldonado, Counsel to Plaintiff-Appellant

Justin K. Lands, Defendant-Appellee

Raul Perez, Defendant-Appellee

Harold E. Brown, Counsel to Defendants-Appellees

Steve Frank, Counsel to Defendants-Appellees

s/Javier N. Maldonado

Attorney of Record for Richard Rynearson


ii

FED. R. APP. P. 35(b) STATEMENT

This appeal involves two questions of exceptional importance regarding the

constitutional limits on the more than thirty permanent checkpoints operated by the

Border Patrol within Texas, miles away from the border. In particular, this case

addresses whether the Border Patrol is constitutionally authorized to detain an

individual at an interior immigration checkpoint for more than 20 minutes after he

provides his name, citizenship status, and offers valid U.S. passports, in order to

make irrelevant phone calls to the individual’s employer. The panel majority’s

conclusion that a reasonable officer would believe he could conduct such a

detention conflicts with decisions of the Supreme Court and this Circuit, and

consideration by the full court is necessary to secure and maintain uniformity of

this Court’s decisions. The two questions presented are:

1. Does an individual have a clearly established right during a

suspicionless immigration checkpoint stop to be detained no longer than necessary

for agents to ask a brief question or two about citizenship status or request

documents evidencing a right to be in the United States?

2. Does an individual have a clearly established right to be released from

a suspicionless immigration detention once his citizenship is determined?

The panel majority’s decision announces a new legal rule permitting an

extended detention at an immigration checkpoint beyond the time reasonably


iii

necessary to make a brief immigration inquiry, without any reasonable suspicion of

criminal activity, on the ground that an individual was “unorthodox” because he

“generally asserted his right against unlawful searches and seizures,” slip op. at 6.

That rule enlarges the authority of border patrol agents to conduct

suspicionless detentions at immigration checkpoints beyond what the Constitution

permits. As the Supreme Court and this Court have made clear for decades, the

Fourth Amendment permits a suspicionless seizure at an interior immigration

checkpoint only for the time reasonably necessary to ask a question or two

regarding immigration status or to request production of a relevant document. See

United States v. Martinez-Fuerte, 428 U.S. 543 (1976); United States v. Machuca-

Barrera, 261 F.3d 425 (5th Cir. 2001); United States v. Portillo-Aguierre, 311 F.3d

647 (5th Cir. 2002). The panel majority’s decision plainly conflicts with these

holdings. But it also announces an unprecedented new basis for extending a

suspicionless seizure: the so-called unorthodox tactic of generally asserting rights

against unlawful searches and seizures while providing all relevant information.

En banc review is necessary to conform the panel’s decision to this Court’s

precedents and to fundamental principles regarding the scope of a permissible

suspicionless detention.


iv

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PARTIES ......................................................... i

FED. R. APP. P. 35(b) STATEMENT ..................................................................... ii

TABLE OF AUTHORITIES ..................................................................................... v

STATEMENT OF ISSUES MERITING EN BANC CONSIDERATION .............. 1

STATEMENT OF FACTS AND COURSE OF PROCEEDINGS ........................... 1

ARGUMENT ............................................................................................................. 7

I. THE MAJORITY’S DECISION PERMITTING A DETENTION LONGER

THAN REASONABLY NECESSARY TO INQUIRE INTO IMMIGRATION

STATUS CONFLICTS WITH SUPREME COURT AND FIFTH CIRCUIT

PRECEDENT ...................................................................................................... 7

II. THE MAJORITY’S DECISION CONFLICTS WITH CLEARLY

ESTABLISHED FIFTH CIRCUIT LAW HOLDING THAT A DETENTION

MUST END ONCE CITIZENSHIP IS DETERMINED .................................14

CONCLUSION ........................................................................................................15

CERTIFICATE OF SERVICE .................................................................................16

ADDENDUM

Panel Opinion


v

TABLE OF AUTHORITIES

Page(s)

CASES

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

403 U.S. 388 (1971) .............................................................................................. 5

City of Indianapolis v. Edmond,

531 U.S. 32 (2000) .......................................................................................... 1, 13

Club Retro, LLC v. Hilton,

568 F.3d 181 (5th Cir. 2009) ................................................................................ 2

Hiibel v. Sixth Judicial Dist. Ct. of Nev.,

542 U.S. 177 (2004) ............................................................................................ 13

Pearson v. Callhan,

555 U.S. 223 (2009) .............................................................................................. 2

Terry v. Ohio,

392 U.S. 1 (1968) ................................................................................................ 10

Tolan v. Cotton,

134 S. Ct. 1861 (2014) (per curiam) ................................................................... 14

United States v. Brignoni-Ponce,

422 U.S. 873 (1975) ............................................................................................ 12

United States v. Ellis,

330 F.3d 667 (5th Cir. 2003) ........................................................................ 14, 15

United States v. Machuca-Barrera,

261 F.3d 425 (5th Cir. 2001) .......................................................................passim

United States v. Martinez-Fuerte,

428 U.S. 543 (1976) .............................................................................. 1, 7, 12, 13

United States v. Portillo-Aguirre,

311 F.3d 647 (5th Cir. 2002) .......................................................................passim

CONSTITUTION

U.S. Const., Amendment 4 ...............................................................................passim


1

STATEMENT OF ISSUES MERITING EN BANC CONSIDERATION

1. Does an individual have a clearly established right during a

suspicionless immigration checkpoint stop to be detained no longer than necessary

for agents to ask a brief question or two about citizenship status or request

documents evidencing a right to be in the United States?

2. Does an individual have a clearly established right to be released from

a suspicionless immigration detention once his citizenship is determined?

STATEMENT OF FACTS AND COURSE OF PROCEEDINGS

1. The Fourth Amendment guarantees “the right of the people” to be free

from “unreasonable searches and seizures.” U.S. Const., Amend. 4. “A search or

seizure is ordinarily unreasonable in the absence of individualized suspicion of

wrongdoing.” City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). The

Supreme Court has approved a “quite limited” exception to this rule for “brief

questioning routinely conducted at permanent checkpoints” related to immigration

status. United States v. Martinez-Fuerte, 428 U.S. 543, 562, 566 (1976).

A suspicionless checkpoint detention violates the Fourth Amendment if it

lasts longer than “the time reasonably necessary to determine the citizenship status

of the persons stopped.” United States v. Machuca-Barrera, 261 F.3d 425, 433

(5th Cir. 2001). This occurs when agents “ask questions outside the scope of the

stop” that “extend the duration of the stop.” Id. at 432. Only activities related to


2

“determining the citizenship status of persons passing through the checkpoint” are

within the scope of the stop. Id. at 433.

A stop of “a couple of minutes” is “within the permissible duration of an

immigration checkpoint stop.” Id. at 435. “[A]ny further detention beyond a brief

question or two or a request for documents evidencing a right to be in the United

States must be based on consent or probable cause,” United States v. Portillo-

Aguirre, 311 F.3d 647, 652 (5th Cir. 2002), or reasonable suspicion, Machuca-

Barrera, 261 F.3d at 434. Even a three-minute extension beyond the permissible

duration violates the Fourth Amendment. Portillo-Aguirre, 311 F.3d at 654.

2. A law enforcement officer is not entitled to qualified immunity if “the

facts … alleged … make out a violation of a constitutional right,” and “the right at

issue was ‘clearly established’ at the time of [the] alleged misconduct.” Pearson v.

Callhan, 555 U.S. 223, 232 (2009). A right is “clearly established” so long as an

officer has “fair warning” that his conduct was unconstitutional. Club Retro, LLC

v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009). “The law can be clearly established

despite notable factual distinctions between the precedents relied on and the case

then before the Court, so long as the prior decisions gave reasonable warning that

the conduct then at issue violated constitutional rights.” Id.

3. Plaintiff Richard Rynearson is an officer in the United States Air

Force who was formerly stationed at Laughlin Air Force Base, near Del Rio,


3

Texas. See slip op. at 2; ROA.352. During his time at Laughlin, Rynearson

traveled frequently to San Antonio and was therefore often compelled to stop at the

Border Patrol’s interior checkpoint near Uvalde, Texas. ROA.352.

In March 2010, Rynearson was detained at the Uvalde checkpoint for 34

minutes. Slip op. at 3. The detention was recorded on video. Id. at 2. Per Agent

Lands’ declaration, Agent Lands requested but “did not direct” that Rynearson exit

his vehicle, and when Rynearson declined the request, Agent Lands decided to

complete the immigration inspection with Rynearson in his vehicle, ROA.274,

which is how checkpoint inquiries are ordinarily accomplished.

When Rynearson was asked to display his identification, he placed his

driver’s license and military identification on the window glass where they could

be read from outside the vehicle. Slip op. at 2. Although the car window was

rolled up or partially rolled up through most of the detention, Rynearson and Agent

Lands had a discussion in which Rynearson answered every question that he was

asked. Id. at 2-3; ROA.336-ROA.342. However, Rynearson was not asked any

questions about his citizenship or immigration status until 11 minutes into the

detention. Slip op. at 10 (Elrod, J., dissenting). At that time, Agent Lands

informed Rynearson that the identification documents he had displayed “don’t

mean anything,” and Rynearson immediately offered to provide passports. Id.

Agent Lands ignored the offer and, for the first time, asked Rynearson whether he


4

was a U.S. citizen. Id. Rynearson answered affirmatively, but he was not

permitted to leave and Agent Lands did not ask to see his passports. Id.

Seven minutes later, almost 18 minutes into the detention, Agent Perez asked

for Rynearson’s passports, and Rynearson instantly surrendered them. Slip op. at

3; id. at 10 (Elrod, J., dissenting). Agent Perez stated that he would review

Rynearson’s passports and Rynearson would be on his way. ROA.343. Thereafter,

however, Agent Perez asked Rynearson several questions about his military

assignment, which Rynearson answered, but Rynearson declined to identify his

commanding officer. Slip op. at 3; id. at 10 (Elrod, J., dissenting). Agent Perez

agreed that Rynearson did not have to answer that question and left with

Rynearson’s passports. ROA.344. Three minutes later, Agent Perez returned to

Rynearson’s vehicle and asked him to again confirm his assigned base. ROA.344.

Rynearson confirmed the base. ROA.344. Agent Perez stated his intent to call the

“Provost Marshal and CID” and then left. Slip op. at 10 (Elrod, J., dissenting).

Agent Perez instructed Agent Lands to release Rynearson about 13 minutes

thereafter, ROA.344-ROA.345, which was about 17 minutes after he first took

possession of Rynearson’s passports and 23 minutes after Rynearson had affirmed

his citizenship and offered his passports to Agent Lands. See slip op. at 3; id. at

10-11 (Elrod, J., dissenting). Agent Perez declared that he determined Rynearson’s

citizenship by examining the passports. ROA.266. He later declared that he had


5

spent 10 to 15 minutes of the detention making calls to the Air Force and speaking

with Security Forces regarding Rynearson’s military status and describing the

checkpoint encounter. See ROA.279.

4. Rynearson brought Fourth Amendment claims against the border

patrol agents pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971). The district court granted the agents’ pre-answer,

pre-discovery motion for summary judgment on the ground that Rynearson had not

established a constitutional violation. ROA.482. With respect to the 10 to 15-

minute period that Agent Perez took to call the Air Force, the district court held

this could not have unlawfully extended the detention because only “continued

questioning after the confirmation of citizenship … impermissibly lengthens a

stop.” ROA.487. The district court denied Rynearson’s request for discovery

related to whether Agent Perez had, in fact, completed his determination of

immigration status prior to calling the Air Force. ROA.297-ROA.298.

5. A divided panel of this Court affirmed. Focusing on the fact that

“Rynearson generally asserted his right against unlawful searches and seizures,”

the majority concluded that “the agents had difficulty determining how to respond

to his unorthodox tactics.” Slip op. at 6. The majority did not address whether

Rynearson was detained longer than necessary for the agents to ask a brief question

or two regarding immigration or to request production of relevant documents.


6

Rather, the majority held that there was no clearly established law permitting

Rynearson to exercise “the constitutional rights he chose to stand on.” Slip op. at

6-7. The majority thus declined to decide whether the extended detention violated

the Constitution. Id. at 7. Instead, the majority held that the agents “at worst,

made reasonable but mistaken judgments.” Id.

6. Judge Elrod dissented. She noted that Rynearson “asserted his rights

while also providing the documentation needed to prove his citizenship status,”

and that even the majority recognized that he began producing documentation as

early as two minutes into the detention. Slip op. at 9-10 (Elrod, J., dissenting).

However, the record established that Agents Lands and Perez “did not

expeditiously investigate Rynearson’s citizenship status.” Id. at 10. For example,

“Agent Lands refused to examine [Rynearson’s] passports, and Agent Perez, rather

than simply scrutinizing the passports, asked Rynearson to identify his

commanding officer and then made Rynearson wait while he placed phone calls to

Rynearson’s employer.” Id. at 9. Judge Elrod concluded that “Agents Lands and

Perez failed to demonstrate entitlement to qualified immunity with respect to the

twenty-three minutes of detention that followed Rynearson’s offer to show Agent

Lands his passports.” Id. at 14. “[N]o reasonable officer—in light of Martinez-

Fuerte, Machuca-Barrera, and Portillo-Aguirre—would believe that he was

entitled to take an additional twenty-three minutes while ignoring the passports and


7

placing phone calls to Rynearson’s employer.” Id. at 14.

ARGUMENT

I. THE MAJORITY’S DECISION PERMITTING A DETENTION

LONGER THAN REASONABLY NECESSARY TO INQUIRE INTO

IMMIGRATION STATUS CONFLICTS WITH SUPREME COURT

AND FIFTH CIRCUIT PRECEDENT

1. Any reasonable border patrol agent would know that an individual

could not be detained longer than “a brief question or two or a request for

documents evidencing a right to be in the United States.” Portillo-Aguirre, 311

F.3d at 652. This Court’s precedent implements the restrictions articulated by the

Supreme Court in Martinez-Fuerte. See 428 U.S. at 558 (holding that the Fourth

Amendment permits only a “brief detention” involving “a brief question or two

and possibly the production of a document evidencing a right to be in the United

States”). Rynearson was detained far longer than a brief question or two or a

request for documents. Indeed, he was detained for 23 minutes after he had

answered the one question asked about his citizenship (and many more questions

besides) and after he had offered two valid U.S. passports, including 17 minutes

after Rynearson had immediately produced his passports upon request.

No reasonable border patrol agent could believe that these 23 minutes did

not exceed “the time reasonably necessary to determine the citizenship status of the

persons stopped.” Machuca-Barrera, 261 F.3d at 433. After Rynearson’s

affirmation of citizenship and offer of passports, the only task that could


8

conceivably be left for determining citizenship would be to authenticate the

passports. See slip op. at 14 (Elrod, J., dissenting). Agent Lands declared that

such a record check usually takes a “couple of minutes.” ROA.259. And this

Court has held unlawful a detention that was less than half as long as 23 minutes,

even though it involved the immigration inspections of numerous individuals on a

bus. See Portillo-Aguirre, 311 F.3d at 656 (total detention of six to ten minutes

unlawful). The majority does not dispute that 23 minutes was longer than

necessary for “a brief question or two or a request for documents evidencing a

right to be in the United States.” Id. at 652. Its holding that the detention was

nonetheless permissible therefore conflicts with Martinez-Fuerte, Machuca-

Barrera, and Portillo-Aguirre.

2. Moreover, it is undisputed that the agents spent most of those 23

minutes pursuing non-immigration matters. For six minutes, the agents ignored the

offer of passports and conducted no inquiry. Thereafter, Rynearson surrendered

the passports immediately upon the request of Agent Perez. Agent Perez held the

passports for 17 minutes. He did use some few minutes to examine them, from

which he determined that Rynearson was a citizen and “there was no reason to

detain him further.” ROA.266. But he also admitted that he spent 10 to 15

minutes calling Rynearson’s employer to “inform[] [the base] of the encounter.”

ROA.279. It is thus undisputed that Agent Perez “wasted ten to fifteen minutes


9

placing unnecessary phone calls.” Slip op. at 13 (Elrod, J., dissenting). These

inquiries had nothing to do with immigration status.

The majority excused the extension of the detention to pursue non-

immigration-related matters on the ground that “Rynearson generally asserted his

right against unlawful searches and seizures while the agents had difficulty

determining how to respond to his unorthodox tactics.” Slip op. at 6. This

reasoning is not only in direct conflict with binding decisions of this Court. It is

also an unprecedented extension of suspicionless detention authority beyond what

the Fourth Amendment permits.

First, following this Court’s decision in Machuca-Barrera, no reasonable

officer could believe that it was permissible to extend Rynearson’s detention in

order to make calls unrelated to “determining [Rynearson’s] citizenship status,”

because this Court’s precedent clearly establishes that inquiries “outside the scope

of the stop” violate the Fourth Amendment when they “extend the duration of the

stop.” Machuca-Barrera, 261 F.3d at 432. Inquiries into non-immigration matters

extended the detention of the stop by at least 10 minutes. The majority’s holding

that a reasonable officer would believe it was permissible to extend a detention for

a non-immigration-related purpose, slip op. at 5-6 (holding it was permissible for

the agents to call Rynearson’s military base to inquire into his military status),

flatly contradicts this Court’s holding in Machuca-Barrera that without reasonable


10

suspicion, border patrol agents may not extend an immigration detention to inquire

into non-immigration matters. 261 F.3d at 432.1

Machuca-Barrera plainly does not permit agents to extend a detention to

make non-immigration inquiries if confronted with assertions of rights. As Judge

Elrod noted, asserting one’s rights while providing all necessary information “is

not an ‘unorthodox tactic[].” Slip op. at 10 (Elrod, J., dissenting). It is “a

venerable American tradition.” Id. It is certainly not evidence of criminal

wrongdoing. And this Court expressly held in Machuca-Barrera that inquiries that

extend an immigration detention are permissible only if they are based on

reasonable suspicion of criminal wrongdoing: “[A]n agent at an immigration stop

may investigate non-immigration matters beyond the permissible length of the

immigration stop if and only if the initial, lawful stop creates reasonable suspicion

warranting further investigation.” Machuca-Barrera, 261 F.3d at 434. The phrase

“if and only if” clearly and unambiguously precludes any other exception allowing

a detention to be extended for unrelated inquiries on account of so-called

“unorthodox tactics.” Either the majority’s holding must recede or Machuca-

Barrera’s must, but the two cannot be harmonized.

Second, the majority’s extended-detention-for-unorthodoxy rule is a

1 All three members of the panel agreed that the detention could not be upheld on the basis of

reasonable suspicion. See slip op. at 6 (holding that Terry v. Ohio, 392 U.S. 1 (1968) is not

applicable); id. at 13 n.7 (Elrod, J., dissenting) (“At oral argument, the government correctly

conceded that ‘this is not a Terry case.’”).


11

breathtaking and unconstitutional expansion of the Border Patrol’s authority to

conduct suspicionless detentions. The majority’s decision would permit a

detention for more than 20 minutes after an individual affirmed his citizenship and

offered two passports whenever a border patrol agent considered an individual to

be “unorthodox” or an “unusually uncooperative person.” Slip op. at 6-7. By

“uncooperative,” the majority appears to refer to Rynearson keeping his window

almost completely closed, declining the request to exit the vehicle, and “assert[ing]

his right against unlawful searches and seizures.” Id. at 2-3, 6. But the majority

does not dispute that notwithstanding this purported unorthodoxy, Rynearson

immediately provided all requested information and documentation related to his

immigration status—and then some. See slip op. at 9-10 (Elrod, J., dissenting).

Indeed, in the final 23 minutes of the seizure, Rynearson offered his

passports and surrendered them immediately upon request; Rynearson engaged in

no discussions regarding his rights or the scope of the stop except in declining to

answer the name of his commanding officer; and Agent Perez made no request for

Rynearson to exit the vehicle and asked him only to roll the window down enough

to deliver the passports, which was already done.2 ROA.342-ROA.345. Agent

Perez had no “difficulty determining how to respond” to Rynearson’s passports—

2 The majority incorrectly states that after Agent Perez arrived, “Rynearson still refused to roll

down his window or exit the vehicle.” Slip op. at 3. The record establishes that Agent Perez

never asked Rynearson to exit the vehicle. With respect to the window, he asked Rynearson

“Can you roll your window down so I can get your passport,” to which Rynearson replied “Sure”

and handed him the passports through a window that was already partially open. ROA.342.


12

he stated that he would review them and Rynearson would be on his way.

ROA.343. Instead the agents detained Rynearson for at least 15 more minutes

while making irrelevant calls to Rynearson’s employer.

The Fourth Amendment simply does not permit the Border Patrol to extend

a suspicionless detention on the basis of “unorthodox” assertions of rights when, as

here, an individual provides all information necessary to determine immigration

status. Even “[a]ccording to the Government, ‘[a]ll that is required of the vehicle's

occupants is a response to a brief question or two and possibly the production of a

document evidencing a right to be in the United States.’” United States v.

Brignoni-Ponce, 422 U.S. 873, 880 (1975); see Martinez-Fuerte, 428 U.S. at 558.

Rynearson did that, and more. “[A]ny further detention”—any further detention—

must be based on consent or probable cause, Martinez-Fuerte, 428 U.S. at 567, or

an independent basis for a seizure such as reasonable suspicion, Machuca-Barrera,

261 F.3d at 434. This Court’s precedents do not define the scope of a permissible

seizure on the basis of its “perceptions of the plaintiff’s actions.” See slip op. at 15

(Elrod, J., dissenting). Rather, the scope of a permissible suspicionless checkpoint

detention is determined by the time necessary for the agents to ask a brief question

or two or request a document. Asserting the right against unlawful seizures, even

if unusual, is no basis for a suspicionless detention—until the panel majority’s


13

decision.3

* * * * *

“Putting aside the dilatory nature of the stop as a whole, at a bare minimum,

once Rynearson offered his passports to Agent Lands, any further detention other

than the couple of minutes required to authenticate the passports was unnecessary.”

Slip op. at 13 (Elrod, J. dissenting). One can “doubt that the Framers of the Fourth

Amendment would have considered ‘reasonable’ a program of indiscriminate stops

of individuals not suspected of wrongdoing.” Edmond, 531 U.S. at 56 (Thomas, J.,

dissenting). But the Supreme Court having approved a narrow exception to the

individualized-suspicion rule for “brief questioning,” the “principal protection of

Fourth Amendment rights at checkpoints lies in appropriate limitations on the

scope of the stop.” Martinez-Fuerte, 428 U.S. at 566, 567. The majority’s

decision eviscerates those limits and approves a new basis for extending a

suspicionless detention in conflict with decisions of the Supreme Court and this

Court. En banc rehearing is necessary to resolve this conflict.

3 Because Rynearson provided the information necessary to prove his citizenship status

throughout the detention, the question “whether Rynearson actually had some limited Fourth

Amendment right to refuse to cooperate,” slip op. at 7, is irrelevant to the questions presented.

The Fourth Amendment “does not impose obligations on the citizen,” Hiibel v. Sixth Judicial

Dist. Ct. of Nev., 542 U.S. 177, 187 (2004). This fundamental principle applies to checkpoint

seizures like any other detention. Regardless, any question regarding a non-cooperation right has

no relevance to the permissible length of detention after Rynearson had offered two passports.


14

II. THE MAJORITY’S DECISION CONFLICTS WITH CLEARLY

ESTABLISHED FIFTH CIRCUIT LAW HOLDING THAT A

DETENTION MUST END ONCE CITIZENSHIP IS DETERMINED

The majority’s holding transgresses this Court’s precedent in a second way.

It is clearly established that “once an agent has completed his immigration inquiry

at an immigration checkpoint, he must end his seizure of the [vehicle] unless he

has reasonable suspicion of wrongdoing.” United States v. Ellis, 330 F.3d 667,

680 (5th Cir. 2003); see also Portillo-Aguirre, 311 F.3d at 656. Even a delay of

“an additional one to two minutes” after completion of the immigration inspection

violates the Fourth Amendment. Ellis, 330 F.3d at 681. No objectively reasonable

agent could believe that he could detain an individual for 10 to 15 minutes after

verifying his citizenship status from a passport. Yet that is precisely what

happened here when the record is viewed in the light most favorable to Rynearson.

See Tolan v. Cotton, 134 S. Ct. 1861, 1867 (2014) (per curiam).

In his first declaration, Agent Perez stated that he scrutinized Rynearson’s

passport and determined his citizenship status. See ROA.264-ROA.267. In his

second declaration, Agent Perez described his calls to the Air Force. See

ROA.278-ROA.279. Neither declaration discusses the timing of these two

activities in relation to one another, and Rynearson was denied any discovery on

this point. It is illogical to infer that these investigations took place at the same

time, and the video depicts two separate absences from Rynearson’s car. The first


15

absence takes about three minutes after Agent Perez states that he would review

Rynearson’s passport and send him on his way. ROA.344. Agent Perez then

returned and said he was going to call the military. ROA.344. He was then absent

from the car a second time, for a much longer period of time. ROA.344-ROA.345.

Viewed in the light most favorable to Rynearson, this sequence shows that

Agent Perez left Rynearson’s vehicle, conducted his immigration-related review of

the passports, and concluded his citizenship inquiry. He then held Rynearson for

more than 10 minutes solely for the purpose of calling his employer. That violates

clearly established law. Portillo-Aguirre, 311 F.3d at 657; Ellis, 330 F.3d at 680.

By approving the detention, the majority necessarily concluded that it was lawful

even if Agent Perez extended the detention after completing his immigration

inquiry. That conclusion conflicts with Ellis and Portillo-Aguirre.

CONCLUSION

For the foregoing reasons, the Court should grant rehearing.

April 10, 2015 Respectfully submitted,

s/Javier N. Maldonado Javier N. Maldonado (attorney-in-charge)

Texas Bar No. 00794216 Law Office of Javier N. Maldonado, P.C. 8918 Tesoro Dr., Ste. 575 San Antonio, TX 78217 Phone: 210-277-1603 Fax: 210-587-4001 Attorney for Appellant Richard Rynearson


16

CERTIFICATE OF SERVICE

I hereby certify that, on April 12, 2015, I served the foregoing brief upon the

following counsel of record by filing a copy of the document with the Clerk

through the Court’s electronic docketing system:

Steve I. Frank

U.S. DEPARTMENT OF JUSTICE

Civil Division, Appellate Staff

Room 7245

950 Pennsylvania Avenue NW

Washington, DC 20530-0001

[email protected]

Harold Edwin Brown, Jr.

U.S. ATTORNEY’S OFFICE

Western District of Texas

601 N.W. Loop 410, Suite 600

San Antonio, TX 78216-5512

[email protected]

s/Javier N. Maldonado

Javier N. Maldonado


rynearson request for en banc review before fifth circuit

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