Rynearson Appeal To 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
________________________________

BRIEF FOR APPELLANT RICHARD RYNEARSON
_________________________________

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: 00512547895 Page: 1 Date Filed: 02/28/2014

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
/s/Javier N. Maldonado
Attorney of Record for Richard Rynearson


ii
STATEMENT REGARDING ORAL ARGUMENT

This case involves legal questions of great importance within this judicial
circuit, given that the Border Patrol operates approximately eighteen permanent
suspicionless checkpoints in Texas alone, stopping thousands if not hundreds of
thousands of motorists per year. It is likely that the issue presented will arise in
other cases, both criminal and civil, and in Appellants view the decisional process
would be aided by oral argument. Accordingly, pursuant to Fifth Circuit Rule
28.2.3, Appellant respectfully requests that this Court hear oral argument in this
matter.

iii
TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PARTIES ......................................................... i
STATEMENT REGARDING ORAL ARGUMENT .............................................. ii
JURISDICTIONAL STATEMENT .......................................................................... 1
STATEMENT OF ISSUES ....................................................................................... 2
STATEMENT OF THE CASE .................................................................................. 3
A. Constitutional Framework ............................................................................... 3
B. Factual Background ......................................................................................... 4
1. Rynearsons Experience with the Uvalde Checkpoint ................................. 4
2. The March 18, 2010 Detention .................................................................... 5
3. Letter to Rynearsons Commander ............................................................15
C. Procedural History .........................................................................................15
SUMMARY OF ARGUMENT ...............................................................................18
ARGUMENT ...........................................................................................................20
I. STANDARD OF REVIEW ..............................................................................20
II. THE DETENTION OF RYNEARSON FOR THIRTY-FOUR MINUTES
EXCEEDED THE MINIMAL INTRUSION ALLOWED FOR A
SUSPICIONLESS IMMIGRATION CHECKPOINT STOP ...........................22
A. The Overall Detention Extended Far Beyond The Time Reasonably
Necessary To Inquire Into Immigration Status .............................................23
1. The Agents Failed to Exercise Diligence and Extended the Detention
Beyond a Reasonable Time with Dilatory Tactics and Irrelevant
Questioning ................................................................................................24
2. The Agents Are Responsible for the Dilatory Tactics that Extended the
Detention ....................................................................................................29
B. Perezs Investigation Of Military Status For Ten To Fifteen Minutes
Unlawfully Extended The Detention ............................................................42
1. The Immigration Purpose of the Stop Was Completed Prior to the
Extended Investigation into Military Status ..............................................43
2. Detention for Ten to Fifteen Minutes in Order to Contact the Military
Violated the Fourth Amendment Regardless of Sequence ........................45
III. THE EXTENDED DETENTION CANNOT BE JUSTIFIED ON THE BASIS
OF REASONABLE SUSPICION ....................................................................48

iv
A. The Detention Cannot Be Upheld On The Basis Of Post Hoc Reasonable
Suspicion Never Articulated By Any Of The Law Enforcement Officers
Involved .........................................................................................................49
B. The Totality Of Circumstances Does Not Establish Reasonable Suspicion Of
Drug Trafficking ...........................................................................................52
C. The Thirty-Four Minute Detention Was Unreasonable Because The Agents
Made No Efforts To Confirm Or Dispel Any Suspicion, Much Less Diligent
Efforts ............................................................................................................59
IV. THE DISTRICT COURT ABUSED ITS DISCRETION BY REFUSING TO
GRANT A CONTINUANCE FOR LIMITED DISCOVERY .........................61
CONCLUSION ........................................................................................................64
CERTIFICATE OF SERVICE .................................................................................65
CERTIFICATE OF COMPLIANCE .......................................................................66


v
TABLE OF AUTHORITIES

Page(s)
CASES
Access Telecom, Inc. v. MCI Telecomms. Corp.,
197 F.3d 694 (5th Cir. 1999) .............................................................................. 61
Berkemer v. McCarty,
468 U.S. 420 (1984) ...................................................................................... 34, 57
Bivens v. Six Unknown Fed. Narcotics Agents,
403 U.S. 388 (1971) ............................................................................................ 15
City of Indianapolis v. Edmond,
531 U.S. 32 (2000) ................................................................................................ 3
Club Retro, LLC v. Hilton,
568 F.3d 181 (5th Cir. 2009) .............................................................................. 21
Curtis v. Anthony,
710 F.3d 587 (5th Cir. 2013) .................................................................. 21, 61, 64
Florida v. Bostick,
501 U.S. 429 (1991) ...................................................................................... 35, 57
Goodson v. City of Corpus Christi,
202 F.3d 730 (5th Cir. 2000) .................................................................. 21, 43, 45
Hiibel v. Sixth Judicial Dist. Ct. of Nev.,
542 U.S. 177 (2004) ................................................................................ 34, 35, 36
Intl Shortstop v. Rallys Inc.,
939 F.2d 1257 (5th Cir. 1991) ............................................................................ 61
Johnson v. Campbell,
332 F.3d 199 (3d Cir. 2003) ............................................................................... 57
Karnes v. Skrutski,
62 F.3d 485 (3d Cir. 1995) ................................................................................. 57
Keelan v. Majesco Software, Inc.,
407 F.3d 332 (5th Cir. 2005) .............................................................................. 50

vi
Pennsylvania v. Mimms,
434 U.S. 106 (1977) ...................................................................................... 38, 39
Raby v. Livingston,
600 F.3d 552 (5th Cir. 2010) .............................................................................. 61
Saucier v. Katz,
533 U.S. 194 (2001) ............................................................................................ 21
Schultea v. Wood,
47 F.3d 1427 (5th Cir. 1995) .............................................................................. 62
Scott v. Harris,
550 U.S. 372 (2007) ............................................................................................ 30
Terry v. Ohio,
392 U.S. 1 (1968) ................................................................................................ 50
Texas v. Brown,
460 U.S. 730 (1983) ............................................................................................ 39
United States v. Arredondo-Hernandez,
574 F.2d 1312 (5th Cir. 1978) ............................................................................ 39
United States v. Arvizu,
534 U.S. 266 (2002) ............................................................................................ 51
United States v. Brigham,
382 F.3d 500 (5th Cir. 2004) ........................................................................ 29, 47
United States v. Brignoni-Ponce,
422 U.S. 873 (1975) ...................................................................................... 35, 50
United States v. Chacon,
330 F.3d 323 (5th Cir. 2003) .............................................................................. 63
United States v. Dortch,
199 F.3d 193 (5th Cir. 1999) .................................................................. 24, 28, 55
United States v. Inocencio,
40 F.3d 716 (5th Cir. 1994) ................................................................................ 54

vii
United States v. Johnson,
620 F.3d 685 (6th Cir. 2010) .............................................................................. 57
United States v. Jones,
234 F.3d 234 (5th Cir. 2000) .................................................................. 24, 46, 58
United States v. Machuca-Barrera,
261 F.3d 425 (5th Cir. 2001) .......................................................................passim
United States v. Macias,
658 F.3d 509 (5th Cir. 2011) .......................................................................passim
United States v. Martinez-Fuerte,
428 U.S. 543 (1976) .....................................................................................passim
United States v. Massenburg,
654 F.3d 480 (4th Cir. 2011) .............................................................................. 56
United States v. Olivares-Pacheco,
633 F.3d 399 (5th Cir. 2011) ........................................................................ 50, 57
United States v. Pack,
612 F.3d 341 (5th Cir. 2010) .............................................................................. 59
United States v. Portillo-Aguirre,
311 F.3d 647 (5th Cir. 2002) .................................................................. 24, 43, 45
United States v. Rangel-Portillo,
586 F.3d 376 (5th Cir. 2009) .............................................................................. 53
United States v. Reyes,
227 F.3d 263 (5th Cir. 2000) ........................................................................ 53, 54
United States v. Santos,
403 F.3d 1120 (10th Cir. 2005) .......................................................................... 56
United States v. Shabazz,
993 F.2d 431 (5th Cir. 1993) .............................................................................. 34
United States v. Sharpe,
470 U.S. 675 (1985) ...................................................................................... 40, 47

viii
United States v. Villalobos,
161 F.3d 285 (5th Cir. 1998) .............................................................................. 54
Vander Zee v. Reno,
73 F.3d 1365 (5th Cir. 1996) .............................................................................. 62
Xerox Corp. v. Genmoora Corp.,
888 F.2d 345 (5th Cir. 1989) .............................................................................. 61
CONSTITUTION AND STATUTES
U.S. Const., Amendment 4 ...............................................................................passim
8 U.S.C.
1304(e) ............................................................................................................. 36
1357(a) ............................................................................................................. 36
28 U.S.C.
1291 .................................................................................................................... 1
1331 .................................................................................................................... 1
RULES
Fed. R. App. P. 4(a)(1)(B) ......................................................................................... 1
Fed. R. Civ. P. 54(d) .........................................................................................passim
Fifth Circuit Rule 28.2.2 ............................................................................................ 6
OTHER AUTHORITIES
Border Patrol Checkpoints Foiled by Drivers Asserting Their Rights,
HUFFINGTON POST, March 1, 2013,
http://www.huffingtonpost.com/2013/03/01/border-patrol-
checkpoints_n_2789592.html ............................................................................. 56

1
JURISDICTIONAL STATEMENT

The district court exercised jurisdiction under 28 U.S.C. 1331 and entered
final judgment on September 30, 2013. Appellant Richard Rynearson filed a
timely notice of appeal on November 26, 2013. ROA.495; see Fed. R. App. P.
4(a)(1)(B). This Court has jurisdiction under 28 U.S.C. 1291.

2
STATEMENT OF ISSUES

1. Whether a thirty-four minute detention extended beyond the constitutional
scope of a suspicionless immigration checkpoint stop, when Border Patrol
agents asked the first question regarding immigration status eleven minutes
into the stop, had physical possession of two passports seventeen minutes
into the stop, and extended the stop by fifteen minutes to contact the U.S.
citizens military base to verify his military identity and to discuss the
checkpoint encounter.
2. Whether a stop may be upheld on the basis of reasonable suspicion of drug
trafficking when one of the agents involved expressly disclaimed having
reasonable suspicion and the other agent articulated no suspicion
whatsoever, the agents conducted no investigation into drug smuggling
except for a canine sniff causing no alert, the district court based its
reasonable suspicion finding on factors not articulated by the agents, and the
totality of the circumstances is not consistent with drug smuggling.
3. Whether a pre-answer, pre-discovery motion for summary judgment should
have been continued for limited discovery regarding, inter alia, whether a
Border Patrol agent had determined immigration status prior to extending
the detention by fifteen minutes to call a U.S. citizens employer to verify
military status and to speak directly with his commander.

3
STATEMENT OF THE CASE

In March 2010, the Border Patrol detained Rynearson for thirty-four minutes
at an interior immigration checkpoint on Highway 90, sixty-seven miles from the
border. The Defendant Border Patrol agents did not ask about immigration status
until eleven minutes into the seizure. Instead, the agents pursued irrelevant
questioning, engaged in other dilatory tactics, and spent ten to fifteen minutes
calling Rynearsons employer. Rynearson sued, claiming this extended detention
violated the Fourth Amendment under clearly established law. The district court
granted the Defendants pre-answer, pre-discovery motion for summary judgment
and this appeal followed.
A. Constitutional Framework
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 narrow 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, 566 (1976). [A]ny further
detention . . . must be based on consent or probable cause. Id. (internal quotation
marks omitted; alteration in original).

4
A suspicionless checkpoint detention is unlawful if the seizure exceed[s] its
permissible duration. United States v. Machuca-Barrera, 261 F.3d 425, 432 (5th
Cir. 2001). The scope of the detention is limited to inquiring into the citizenship
status of persons passing through the checkpoint, and the permissible duration
thus includes the time necessary to ascertain the number and identity of the
occupants of the vehicle, inquire about citizenship status, request identification or
other proof of citizenship, and request consent to extend the detention. Id. at 433.
The seizure exceeds its permissible duration when agents ask questions outside
the scope of the stop that extend the duration of the stop beyond what is
reasonably necessary to inquire into immigration status. Id. at 432. A stop of a
couple of minutes is within the permissible duration of an immigration
checkpoint stop. Id. at 435.
B. Factual Background
1. Rynearsons Experience with the Uvalde Checkpoint
Plaintiff Richard Rynearson is an officer in the United States Air Force who
was formerly stationed at Laughlin Air Force Base, near Del Rio, Texas.
ROA.352. During his time at Laughlin, Rynearson traveled frequently to San
Antonio and was therefore frequently compelled to stop at the Border Patrols
interior checkpoint near Uvalde, Texas. ROA.352. The overwhelming majority
of traffic through this checkpoint is legitimate; in all of 2012, the Border Patrol

5
apprehended a total of thirty-eight individuals at this checkpoint for illegally
entering the United States. ROA.257.
On at least three occasions before the incident that forms the basis of this
suit, Rynearson was detained for an extended period at the Uvalde checkpoint, and
in one case his vehicle was unlawfully searched, when he declined to tell the
agents his intended destination. ROA.353-ROA.354. After the first incident, in
which an agent searched the interior of his vehicle with a drug dog and threw his
property on the pavement, Rynearson filed a written complaint. ROA.353. In
another incident, an agent informed Rynearson that he was the only pilot from the
base who refused to answer where he was going. ROA.353. Following these
incidents, as well as one other encounter with unconstitutional law enforcement,
Rynearson decided to install cameras in his vehicle. ROA.354.
2. The March 18, 2010 Detention
(i) Inspection at Primary (Approximately 35 Seconds)
On March 18, 2010, Rynearson traveled alone from Del Rio to San Antonio
in a two-door car with untinted windows. ROA.354. Rynearson approached the
checkpoint with his window partially rolled down. ROA.354.
When Rynearson stopped, Agent Justin Lands asked if the car Rynearson
was driving was his vehicle. ROA.335; Def. Mot. for Summ. J., Exhibit D,

6
1/00:26 (hereinafter Video).
1
Rynearson responded in the affirmative and Lands
asked, Can you roll down your window? Is that as far as itll go? ROA.335-
ROA.336; Video, 1/0:27. Rynearson answered, No, it can go down more and
rolled his window down further to demonstrate. ROA.336; Video, 1/0:30. Lands
asked, You said this is your vehicle? and Rynearson confirmed it was.
ROA.336; Video, 1/0:34. Lands asked no questions related to immigration status
and referred Rynearson to secondary. ROA.335-ROA.336; Video, 1/0:00-0:35.
(ii) Initial Inspection at Secondary (Approximately 00:35 to 5:05)
Rynearson parked in secondary and rolled up his window. ROA.336;
Video, 1/0:58. Lands walked over and request[ed] but did not direct that
Rynearson exit the vehicle. ROA.274 (Lands Declaration); see also ROA.336;
Video, 1/1:34. Lands also requested that Rynearson roll down his window;
Rynearson declined both requests. ROA.336; Video, 1/1:39. Rynearson was
concerned that the agents were attempting to remove him from his vehicle so that
they could search his car, as had happened to him in the past. ROA.354.

1
The video was edited only as needed to combine footage, to protect Rynearsons
identity, and to satisfy YouTube upload requirements. ROA.355. It was filed as
Exhibit D to the Defendants summary judgment motion. ROA.271. Events
depicted on the video are cited in a form compliant with Fifth Circuit Rule 28.2.2
to the unofficial transcript in Plaintiffs Fact Appendix, ROA.333-ROA.346, and
also to the video by time ranges. For example, 1/0:26 refers to 26 seconds into part
1.

7
Lands later declared that he had some suspicion that Rynearson declined to
roll down his window because of drugs in the door compartment. ROA.260. A
drug-sniffing dog did not alert to Rynearsons car. ROA.265. Lands decided to
complete the immigration inspection and use the results of that to determine
whether any further inquiry was necessary. ROA.260.
Over the next minute, Lands and Rynearson discussed Rynearsons
identification, Lands made further requests for Rynearson to exit the car, and
Lands questioned Rynearson regarding his military affiliation. With respect to
identification, Lands said, I need to see some identification. ROA.336; Video,
1/1:42. Rynearson responded that he could show Lands identification. ROA.336;
Video, 1/1:43. Lands also said, Well, heres what we can do. Youre gonna need
to give me your identification. ROA.337; Video, 1/2:04. Rynearson said, Ok,
and put his drivers license on the window, and said, Theres my ID. ROA.337;
Video, 1/2:07. Lands said, I need to inspect it to make sure its a valid ID.
ROA.337; Video, 1/2:10. Rynearson said, Ok and also put his military ID card
on the window. ROA.337; Video, 1/2:12-2:16. Lands began copying down
information from the identification. ROA.337; Video, 1/2:38. Lands did not
specifically ask to physically inspect the identification. ROA.337.
Around the same time, Lands asked Rynearson if he was in the military and
if he was stationed in Del Rio. ROA.337; Video, 1/2:17-2:23. Rynearson

8
answered yes to both questions and Lands confirmed that he understood the
answers. ROA.337; Video, 1/2:18-2:23.
Lands made his last request that Rynearson exit the vehicle approximately
two and a half minutes into the stop, stating that if Rynearson stayed in his car
then well just do this the hard way. ROA.337; Video, 1/2:35. Lands decided to
complete the immigration inspection with Rynearson in the car. ROA.274. After
this exchange, Lands then ceased conversation. An agent behind the vehicle
pointed out the various cameras installed in Rynearsons vehicle. ROA.337;
Video, 1/2:58.
At a little after three minutes into the stop, and again just after four minutes,
Rynearson sought to re-engage Lands in conversation. ROA.337-ROA.338;
Video, 1/3:23, 1/4:07. On the second try, Lands stated that he could not hear
Rynearson, but continued with the conversation, stating that This is an
immigration checkpoint and that Rynearson had to satisfy to us that youre a
United States citizen. ROA.338; Video, 1/4:15-4:37. Although acknowledging
that Rynearson had not refused to answer any questions, Lands claimed that
Rynearson had been evasive about answering. ROA.338; Video, 1/4:52-4:55.
Lands ended this interaction by stating If youll hang tight Ill be right back with
you. ROA.338; Video, 1/5:05.

9
(iii) No Interaction (Approximately 5:06 to 9:52)
For the next approximately five minutes, Rynearson had no interaction with
any agents. During that time, Rynearson made telephone calls, including a call to
an FBI office in San Antonio to discuss what was required for the Border Patrol to
search his vehicle. ROA.338-ROA.339; Video, 1/6:48-9:52.
(iv) Resumed Inspection by Lands (Approximately 9:53 to 12:52)
Following his call with the FBI, Rynearson attempted to re-start the
immigration inspection. ROA.339; Video, 1/9:53. Lands returned to the vehicle
window. When Lands stated that he could not hear Rynearson, Rynearson rolled
his window partially down, approximately ten minutes into the stop. ROA.339-
ROA.340; Video, 2/0:13-0:15. Rynearson then asked if Lands could hear him.
ROA.340; Video, 2/0:17. Lands responded Yeah, but requested that Rynearson
roll the window down further. ROA.340; Video, 2/0:18. When Rynearson began
to ask a question of Lands, Lands stated that a supervisor was coming. ROA.340;
Video, 2/0:32.
Rynearson and Lands then engaged in a discussion of when reasonable
suspicion was necessary and whether Lands had reasonable suspicion. ROA.340;
Video, 2/0:35-1:11. Rynearson then asked whether Lands thought that Rynearson
was not an American citizen. ROA.340; Video, 2/1:12. Lands responded, Well
define what that means. ROA.340; Video, 2/1:15. Rynearson responded, You

10
have a military ID. ROA.340; Video, 2/1:17. Lands said, That doesnt mean
anything. ROA.340; Video, 2/1:18. Rynearson pointed to his drivers license and
said, You have this ID. ROA.340; Video, 2/1:20. Lands said, Those arent
immigration documents. ROA.340; Video, 2/1:21.
Rynearson then asked, Do you want a passport? ROA.341; Video, 2/1:23.
Lands did not respond to the offer. ROA.341. Instead, at approximately eleven
minutes into the stop, he asked, Are you a U.S. citizen? ROA.341; Video,
2/1:24. Rynearson responded, I am a U.S. citizen. ROA.341; Video, 2/1:25.
Lands said, How come you wouldnt answer me earlier? and Rynearson
responded, You never asked me if I was a U.S. citizen! ROA.341; Video,
2/1:26.
After a discussion in which Rynearson noted that he had answered all of
Lands questions, Lands stated, Well, heres the deal, alright, like I said, I dont
need reasonable suspicion to secondary you for an immigration violation, thats
why youre being secondaried. ROA.341; Video, 2/2:07. Lands stated that he
was not accusing Rynearson of violating an immigration law. ROA.341; Video,
2/2:16. In response to Rynearsons further questions, Lands twice stated that at a
checkpoint, all he needs is mere suspicion of an immigration violation, not
reasonable suspicion. ROA.341; Video, 2/2:35. Lands declared that he had mere
suspicion but was not going to divulge it. ROA.341-ROA.342; Video, 2/2:41. In

11
his declaration, Lands averred that Rynearsons detention was solely for the
purpose of conducting an immigration inspection. ROA.258.
Lands finally reiterated that a supervisor was coming, and joined other
agents at the rear of Rynearsons vehicle. ROA.342; Video, 2/2:59. Rynearson
placed two passports on the window next to the drivers license and military ID.
ROA.342; Video, 2/3:25.
(v) No Interaction (Approximately 12:53 to 17:23)
For the next four and a half minutes, Rynearson waited in the car without
interacting with any agents. ROA.342; Video, 2/3:03-7:31. At some previous
time, Lands had decided to call a supervisor to handle Rynearsons detention.
ROA.260. There was a supervisory agent already on the scene at the time, Roy
Ehresman. ROA.265. Lands, however, decided to call supervisory agent Raul
Perez, who was on patrol seven miles away at the time. ROA.260. It took Perez
approximately ten to fifteen minutes to arrive at the checkpoint. ROA.265. When
Perez arrived, he met with the on-scene supervisory agent, who briefed Perez
regarding Rynearsons detention. ROA.265. Perez was informed that there was no
canine alert on Rynearsons vehicle. ROA.265.
(vi) Inspection by Perez (Approximately 17:24 to 22:30)
Over seventeen minutes into the detention, Perez knocked on Rynearsons
window. ROA.342; Video, 2/7:31. Rynearson responded, Yes, sir? and Perez

12
asked, Can you roll your window down so I can get your passport? ROA.342;
Video, 2/7:32-7:36. Rynearson responded, Sure, though the window was
already partially down, and then gave Perez two passports. ROA.342; Video,
2/7:37-7:45.
Perez asked Ok, Mr. Rynearson, was there any reason you didnt want to
tell the agent your citizenship? Thats what we do right there on primary, sir.
ROA.342-ROA.343; Video, 2/8:02. In the ensuing conversation, Rynearson
explained that he was not asked about his citizenship in primary, and that he was
not asked for a passport. ROA.343; Video, 2/8:07-8:34. Then, about one minute
after Perezs arrival and more than eighteen minutes into the stop, Perez said, Just
bear with me, let me check out your passport and well get you on your way, sir.
ROA.343; Video, 2/8:37.
Rynearson then informed Perez that he could prove that he was never asked
his citizenship status or for his passport at primary, stating I have everything
videoed right now and that his video was sent on the internet. ROA.343;
Video, 2/8:41. Perez acknowledged Rynearsons statements about the video, and
then questioned Rynearson regarding his military status. ROA.343; Video, 2/8:43.
Specifically, Perez asked And where are you currently stationed? ROA.343;
Video, 2/8:48. Rynearson responded that he was stationed at Laughlin. ROA.343;
Video, 2/8:50. Perez then asked, And whos your CO? ROA.343; Video,

13
2/8:53. Rynearson asked, My commanding officer? and Perez responded,
Yes. ROA.343; Video, 2/8:54. Perez then put Rynearsons passports in his shirt
pocket. ROA.343; Video, 2/8:55.
Rynearson responded that he prefer[red] not to provide that information.
ROA.343; Video, 2/8:56. Perez stated, Well I can go ahead and call anyway and
talk to the OIC of the Provost Marshall. ROA.344; Video, 2/8:59. Perez
continued, So, thats why Im asking you if youre willing to provide that
information. ROA.344; Video, 2/9:04. Rynearson asked Perez why would you
need to contact the military and whether he was not convinced that Rynearson
was an American citizen. ROA.344; Video, 2/9:07. Perez responded, No, Im
asking you who your CO is, but acknowledged that Rynearson did not have to
answer. ROA.344; Video, 2/9:13-9:29. Perez declares that he asked for
Rynearsons commanding officers name so that [he] would have some facts to
confirm [Rynearsons] military identity. ROA.265.
Following Perezs questioning regarding Rynearsons commander,
Rynearson had no interaction with the agents for about three minutes.
Perez returned to Rynearsons window over twenty-two minutes into the
stop, and returned to questioning Rynearson regarding his military assignment,
asking Laughlin Air Force Base? ROA.344; Video, 3/2:35. Rynearson replied
in the affirmative for the third time to this question, and Perez informed Rynearson

14
of his intent to call the Provost Marshall and CID. ROA.344; Video, 3/2:38.
Perez then left.
During one of his absences from the vehicle, either at approximately
eighteen minutes into the stop, or twenty-two minutes into the stop, Perez called
dispatch to run a records check and scrutinized Rynearsons passport. ROA.266.
According to Lands, such a records check takes a couple of minutes. ROA.259.
Based on his review of Rynearsons documents and the return from the records
check indicating that Rynearsons passports were valid, Perez determined that
Rynearson was an American citizen and therefore there was no reason to detain
him further. ROA.266.
(vii) No Interaction (Approximately 22:31 to 33:00)
Following Perezs second period of questioning regarding Rynearsons
military assignment, there was no further interaction between Rynearson and the
agents for more than ten minutes. Perez contacted Laughlin and spoke with
Captain Dinesen of Air Force Security Forces. ROA.279. After confirming that
Rynearson was stationed at Laughlin and his military identity, Perez engaged in
further conversation with Captain Dinesen to discuss the checkpoint encounter and
a previous law enforcement encounter. ROA.279. This process took ten to fifteen
minutes. ROA.279. According to a letter sent later by Chief Patrol Agent, Robert

15
Harris, Perez also spoke directly with Rynearsons commander during this time.
ROA.358.
(viii) Release from Detention (Approximately 33:01 to 34:00)
At some point after Perez determined that Rynearson was an American
citizen from reviewing his passports and conducting a records check, Lands came
into the checkpoint office. ROA.266. Perez then instructed him to release
Rynearson. ROA.266.
About thirty-three minutes into the stop, Lands returned to Rynearsons
vehicle and released him. ROA.345; Video, 4/3:45-5:02.
Rynearson was detained about thirty-four minutes in total. ROA.346;
Video, parts 1-4.
3. Letter to Rynearsons Commander
After the incident, Chief Harris sent a letter to Rynearsons commander to
complain about Rynearsons conduct and to suggest grounds for disciplinary
action. ROA.357-ROA.359.
C. Procedural History
Rynearson filed suit against Lands and Perez for unlawfully detaining him in
violation of the Fourth Amendment, under Bivens v. Six Unknown Fed. Narcotics

16
Agents, 403 U.S. 388 (1971).
2

Prior to their answer or any discovery, the Defendants moved for summary
judgment on the ground of qualified immunity and to stay all discovery.
ROA.166; ROA.474. Rynearson opposed their motion, and also moved for a
continuance from summary judgment in order to conduct discovery, see Fed. R.
Civ. P. 54(d).
The motions were referred to a magistrate judge, who stayed all discovery.
ROA.418. The magistrate judge further recommended that Rynearsons motion to
continue summary judgment for limited discovery be denied, and that the
Defendants motion for summary judgment be granted. ROA.375. Rynearson
timely filed objections. ROA.469.
The district court reached the same conclusion as the magistrate judge and
granted summary judgment to the Defendants on the ground that Rynearson had
not established a constitutional violation. ROA.482. The district court first held
that Rynearsons conduct, and not the lack of diligence on the part of Lands, was
the sole reason for any delay in determining immigration status. ROA.484. The
district court asserted that Rynearsons failure to return his window to partially

2
The district court dismissed claims under the Federal Tort Claims Act for lack of
jurisdiction, ROA.465, as well as other claims against Agents Lands and Perez,
ROA.488-ROA.490. Rynearson appeals only the summary judgment granted to
the two agents on the Fourth Amendment unlawful detention claim, and the
associated denial of the motion to continue summary judgment proceedings
pending limited discovery.

17
rolled down for the first ten minutes of the stop, his decision not to exit the vehicle,
his challeng[es to] the agents authority, and his putting multiple forms of
identification on the window for the first half of the stop, impeded the agents
efforts to complete his investigation and prohibited [the agents] from asking
questions, therefore justifying a thirty-four minute suspicionless detention.
ROA.486. The district court concluded that it was irrelevant whether Rynearson
had the right to take any of the actions he did. ROA.485-ROA.486.
As for the ten to fifteen minute period that Perez took to call Laughlin, the
district court concluded that Perez did so in order to confirm [Rynearsons]
citizenship and that this was an efficient means to do so. ROA.486-ROA.487.
Moreover, 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 alternatively justified the extended detention on the ground
that Lands had developed reasonable suspicion that Rynearson was trafficking
drugs, either in his door compartment or by serving as a lead vehicle for a
contraband smuggler. ROA.485. The district court based this conclusion on
Rynearson declining to roll down his window, repeatedly challeng[ing] the
agents and combative behavior, making multiple phone calls, declining to exit
the vehicle, and purportedly refus[ing] immediately to turn over his

18
identification. ROA.485. The district court concluded the agents acted as
quickly as possible to dispel any notions of wrongdoing. ROA.487. Accordingly,
while finding that the thirty-four minute detention was longer than some stops
that occur at checkpoints, it did not exceed a constitutionally permissible time.
ROA.487.
The district court entered final judgment dismissing all of Rynearsons
claims, and this appeal followed. ROA.494; ROA.495.
SUMMARY OF ARGUMENT
Because the Fourth Amendment ordinarily demands that law enforcement
have some individualized suspicion before an individual is seized, it tightly
circumscribes the operation of interior checkpoints where individuals are seized
despite no suspicion of criminal activity or unlawful presence. Under the Fourth
Amendment, Border Patrol agents may detain individuals at such checkpoints only
for a few minutesthe reasonable time necessary to make a brief and diligent
inquiry into immigration status. The detention of Rynearson for thirty-four
minutes was neither brief, nor much of an inquiry into immigration status. The
Defendants did not even begin an immigration inquiry until eleven minutes into the
seizure. Rather, they spent the overwhelming majority of the detention either
pursuing no inquiry at all, delaying any inquiry by calling in an off-site supervisor
in lieu of the readily available one, or making contact with Rynearsons military

19
employer. This detention falls far outside of an objectively reasonable
immigration stop under clearly established law.
The district court laid the entire delay at Rynearsons feet, insisting that his
conduct prohibited the Defendant agents from conducting a diligent immigration
inspection. But this impermissibly reads the record in the light most favorable to
the governmentthe moving party. Viewed in the light most favorable to
Rynearson, there is no question that the agents were fully able to pursue an
immigration inquiry, when they got around to it. Immediately upon asking, agents
learned Rynearsons immigration status and received passports. Indeed, none of
the conduct of which the district court evidently disapprovessuch as questioning
whether the agents are conducting a seizure in accordance with constitutional
requirementscould have any conceivable bearing on the entire second half of the
detention, when Perez either completed or abandoned the duty to investigate
immigration status and embarked instead on reporting Rynearsons conduct to his
employer. More fundamentally, the district courts reasoning turns the Fourth
Amendment on its head. The Fourth Amendment imposes the burden of
investigatory diligence on the government, not the seized citizen. Not only does
the Fourth Amendment not compel any individual to proactively further a
government investigation, but it protects an individuals right to refuse cooperation
without suffering an extended suspicionless detention in response.

20
The district courts reasonable-suspicion analysis is equally crosswise to
fundamental Fourth Amendment principles. No agent claimed that he held any
reasonable suspicion that Rynearson was engaged in criminal activity, nor
articulated any facts on which such (non-existent) reasonable suspicion might be
based. The district courts post hoc invention cannot substitute for the agents
professional judgment. It fails on its own terms, regardless, because it is based on
Rynearsons exercise of his rights, disregards factors demonstrating his conduct is
more consistent with innocence than drug trafficking, and cannot escape the fact
that the agents did not pursue (diligently or otherwise) any investigation of
criminal activity.
The district court compounded its misapplication of clearly established
constitutional law by misapplying the law regarding discovery in qualified
immunity cases. The district court denied any discovery to Rynearson prior to the
ruling on summary judgment, notwithstanding Rynearsons identification of
disputed facts that were material under even the district courts narrow conception
of the Fourth Amendments protections. At the very least, Rynearson is entitled to
limited discovery before a ruling on summary judgment.
ARGUMENT
I. STANDARD OF REVIEW
This Court applies de novo review to summary judgment motions and

21
evaluate[s] the case under the same standards employed by the district court.
Goodson v. City of Corpus Christi, 202 F.3d 730, 735 (5th Cir. 2000). If the
evidence is sufficient for a reasonable jury to return a verdict for the nonmoving
party, then summary judgment cannot be granted. Id. The evidence and all
reasonable inferences to be drawn therefrom must be reviewed in the light most
favorable to the nonmovant. Id. This Court reviews the district courts decision
to preclude further discovery prior to granting summary judgment for abuse of
discretion. Curtis v. Anthony, 710 F.3d 587, 594 (5th Cir. 2013) (per curiam)
(internal quotation marks omitted).
A law enforcement officer is entitled to summary judgment on the basis of
qualified immunity only if no reasonable jury could conclude that the officers
conduct violated a constitutional right that was clearly established. Saucier v.
Katz, 533 U.S. 194, 201 (2001), overruled in part on other grounds, Pearson v.
Callahan, 555 U.S. 223 (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. (internal quotation
marks omitted).

22
II. THE DETENTION OF RYNEARSON FOR THIRTY-FOUR
MINUTES EXCEEDED THE MINIMAL INTRUSION ALLOWED
FOR A SUSPICIONLESS IMMIGRATION CHECKPOINT STOP
A suspicionless seizure at an interior immigration checkpoint violates the
Fourth Amendment if it extends even a few minutes past the time necessary for a
brief inquiry into immigration status. Viewed in the light most favorable to
Rynearson, the duration of the detention in this case is not even close to
constitutional limits.
It is undisputed that the Defendants did not ask the first question related to
immigration status until eleven minutes into a thirty-four minute detention, that the
Defendants called an off-site supervisor who had to travel for several minutes
rather than call the on-site supervisor, that Rynearson answered every question
asked except for the name of his commanding officer, and that Rynearson
produced two identification cards and two passports during the detention. It is
further undisputed that the Defendants prolonged the detention for ten to fifteen
minutes to call Rynearsons employer. Finally, it is undisputed that a drug dog did
not alert on Rynearsons vehicle and that the Defendants initiated no other inquiry
into drug trafficking.
There are material disputes of fact, however, regarding whether there was
any reason to call an off-site supervisor, whether Perez had completed his
immigration inspection before he extended the detention to call Rynearsons

23
employer, and whether Perez extended the detention even after confirming
Rynearsons military status in order to speak directly with Rynearsons
commander. Viewed in the light most favorable to Rynearson, the agents
disregard for almost every limit upon the scope and duration of a suspicionless
immigration checkpoint stop violated clearly established law.
A. The Overall Detention Extended Far Beyond The Time
Reasonably Necessary To Inquire Into Immigration Status
Because suspicionless checkpoint stops carve out a narrow exception to
the normal rule that an individual may not be seized absent individualized
suspicion, Machuca-Barrera, 261 F.3d at 431, the Fourth Amendment is satisfied
only if the appropriate limitations on the scope of the stop are followed,
Martinez-Fuerte, 428 U.S. at 567. That means the stop may last no longer than
the amount of time reasonably necessary to ask a few questions about
immigration status. Machuca-Barrera, 261 F.3d at 435. In that time, the Border
Patrol may conduct a visual inspection of the vehicle limited to what can be
seen without a search. Martinez-Fuerte, 428 U.S. at 558. Agents may also ask
questions beyond the scope of the stop, or engage in other investigations unrelated
to the scope (such as drug dog sniffs), but only as long as in sum [the questions]
generally relate to determining citizenship status and such questions do not
extend the duration of the stop. Machuca-Barrera, 261 F.3d at 432 n.21, 433.
In total, the time necessary for this brief inquiry is at most a few minutes.

24
Martinez-Fuerte, 428 U.S. at 547 (upholding constitutionality of suspicionless
checkpoints where detentions were three to five minutes); Machuca-Barrera, 261
F.3d at 435 ([A] couple of minutes is within the permissible duration of an
immigration checkpoint stop.). Any detention beyond that brief timeor any
detention after the immigration inquiry is concluded, United States v. Portillo-
Aguirre, 311 F.3d 647, 657 (5th Cir. 2002)must be based on consent or
probable cause, Martinez-Fuerte, 428 U.S. at 567. Or, if the initial routine
questioning generates reasonable suspicion of other criminal activity, the stop may
be lengthened to accommodate its new justification. Machuca-Barrera, 261 F.3d
at 434. Agents violate clearly established law if they detain someone even a few
minutes beyond the permissible length of detention. United States v. Jones, 234
F.3d 234, 241 (5th Cir. 2000) (three minutes); United States v. Dortch, 199 F.3d
193, 196, 198 (5th Cir. 1999) (four minutes).
1. The Agents Failed to Exercise Diligence and Extended the
Detention Beyond a Reasonable Time with Dilatory Tactics and
Irrelevant Questioning
The thirty-four minute detention of Rynearson far exceeded the few minutes
reasonably necessary to ask a few questions regarding immigration status. That
facially fails the test established in Machuca-Barrera and violates the Fourth
Amendment.
The agents unlawfully extended the stop in three principal ways: delaying

25
asking immigration-related questions while conducting unrelated investigations,
engaging in no apparent inspection or investigation whatsoever for eleven minutes,
and holding Rynearson for an additional ten to fifteen minutes while calling
Laughlin in order to confirm Rynearsons military identity and to engage in a
discussion with Security Forces and Rynearsons commander regarding the
checkpoint stop.
First, Lands delayed asking immigration-related questions while seeking
information on other, unrelated topics, failing the constitutional test that law
enforcement must diligently pursue[] a means of investigation that was likely to
confirm or dispel [the reason for the stop] quickly. United States v. Macias, 658
F.3d 509, 522 (5th Cir. 2011) (internal quotation marks omitted). In the context of
a suspicionless immigration checkpoint stop, diligence requires pursuit of
information related to an individuals immigration status. Lands does not dispute
that the first time he asked Rynearson his immigration status was eleven minutes
into the stop. ROA.472; see ROA.258-ROA.260. Prior to that, he interrogated
Rynearson regarding his vehicle ownership, his military status, and his place of
assignment. ROA.335, ROA.337; Video, 1/0:26, 1/2:17-2:23. The district court
held that Lands initial questions regarding vehicle ownership could be considered
within the scope of the stop and did not significantly delay the stop. ROA.483.
But the court disregarded Lands lack of diligence in questioning Rynearson

26
regarding his military assignment rather than his immigration status. ROA.483.
That is contrary to Supreme Court and this Courts precedent. An agent may not
unconstitutionally prolong [an individuals] detention by asking irrelevant and
unrelated questions without reasonable suspicion of criminal activity. Macias,
658 F.3d at 512.
Nor may an agent unconstitutionally prolong an individuals detention by
simply waiting and conducting no inspection at all. The district court held that
Rynearson, and not Lands, was solely responsible for the eleven-minute-long delay
in asking any questions about immigration status. ROA.484. As discussed further
below, there is no reasonable view of the evidence under which Lands entire delay
before asking the first question related to immigration status can be attributed to
Rynearson. See infra, pp. 30-33.
Moreover, Lands failed to exercise diligence in requesting and pursuing
immigration-related documents. Lands stated that he needed to inspect
Rynearsons identification, and began copying down information from the
identification Rynearson had placed on the windowa drivers license and a
military identification card. ROA.336-ROA.337; Video, 1/2:10-2:38. However,
Lands did not ask for a passport and did not acknowledge Rynearsons offer of a
passport, ROA.471, despite the fact that in Lands view the other identification
cards that Rynearson produced did not mean anything because they were not

27
immigration documents, ROA.340; Video, 2/1:18-1:21. Diligence requires that
an agent inform an individual who produces irrelevant identification that it will not
suffice. At the least, an agent must respond to an offer of relevant documentation
(a passport)not sit on the knowledge that the produced documents are irrelevant
for approximately nine minutes before so informing the detainee. Compare
ROA.337; Video, 1/2:07 (Rynearson places identification in the window two
minutes into the stop), with ROA.340; Video, 2/1:18 (Lands states that
identification doesnt mean anything over eleven minutes into the stop). The
district court gives no plausible accounting of how Lands unvoiced pursuit of
physical inspection of documents he himself termed meaningless represented
diligence in pursuing the immigration-related scope of the stop.
Second, for much of the time that Rynearson was detained, neither Lands
nor the other agents pursued any investigation whatsoever. Specifically, counting
only the time prior to Perezs arrival, Rynearson waited for about ten minutes
while the agents pursued no investigation. See ROA.338-ROA.339, ROA.342;
Video, 1/5:06-9:52, 2/03:03-07:31. That time would have been even longer had
Rynearson not himself prompted Lands to engage in conversation and an
immigration inspection on several occasions, including the conversation in which
Lands for the first time asked aboutand received the answer regarding
Rynearsons immigration status. See ROA.339, ROA.341; Video, 1/9:53, 2/1:24

28
(Rynearson asks the agents to re-engage in conversation, resulting in the
citizenship question about one minute later). After about ten minutes, Lands
indicated a supervisor had been called. ROA.340; Video, 2/0:32. The district
court held that summoning a supervisor was reasonable, ROA.485, but that does
not explain Lands abandonment of the inspection prior to that point. Furthermore,
neither Lands nor the government has provided any justification for calling an off-
site supervisor rather than referring the situation to the on-site supervisor. See
ROA.265 (Perez received a briefing from on-site supervisory agent upon his
arrival). That, too, fails the diligence test and unnecessarily extended the stop. Cf.
Dortch, 199 F.3d at 200 (government unduly delayed arrival of canine unit when it
was not requested until 9-10 minutes into the stop and the officers offered no
justification for this delay).
3

Third, as discussed below, the Defendants impermissibly extended
Rynearsons detention in order to pursue an irrelevant inquiry into Rynearsons
military status and to convey the details of the checkpoint encounter to individuals
associated with the Air Force, Rynearsons employer. See infra, pp. 42-48.
In sum, the agents violated the Fourth Amendment when they extended the
immigration stop long beyond the the amount of time reasonably necessary to

3
Rynearson moved for a continuance to obtain limited discovery regarding, inter
alia, why Defendant Lands summoned an off-site supervisor, extending the
detention, when there appears to have been an on-site supervisor. ROA.298. The
district court denied all discovery, however. See infra, pp. 61-64.

29
ask a few questions about immigration status. Machuca-Barrera, 261 F.3d at
435. Although the agents may choose between alternative efficient means in
pursuing the scope of the stopimmigration statusthey must diligently
pursue[] a means of investigation that is quick[]. United States v. Brigham, 382
F.3d 500, 511 (5th Cir. 2004) (en banc). The agents failed to conduct the
inspection diligently over the course of this thirty-four minute immigration
inspection when they (i) pursued unrelated lines of investigation, particularly
Rynearsons military status, for almost half of the stop; (ii) did not ask the first
immigration-related question until eleven minutes into the detention; (iii) failed to
inform Rynearson that his produced identification was meaningless until the
eleventh minute; (iv) failed to acknowledge or accept Rynearsons passport until
seventeen minutes into the stop; and (v) abandoned the inspection for long periods
of time while calling off-site personnel instead of using on-site supervisors.
2. The Agents Are Responsible for the Dilatory Tactics that Extended
the Detention
The district court upheld this extended detention on the ground that
Rynearsons actions were the sole reason for any delay in determining
immigration status. ROA.484. The district courts decision absolving the Border
Patrol agents of all responsibility for the conduct and length of the detention rests
on four critical errors.
First, the district courts holding that Rynearsons actions impeded and

30
prohibited [the agents] from asking questions, placing the entire detention
outside of the officers control, ROA.486, disregarded the record evidence
favoring Rynearson. See Scott v. Harris, 550 U.S. 372, 378, 380 (2007) (holding
court must view the facts and draw reasonable inferences in the light most
favorable to the party opposing summary judgment except where a fact is
blatantly contradicted by the record, so that no reasonable jury could believe it).
The district court identified four actions by Rynearson that purportedly prohibited
the agents from asking questions, understanding the answers, or conducting an
immigration inspection: refusing to lower his window, refusing to exit the vehicle,
challenging the agents authority, and refusing to hand over identification cards.
ROA.486. Viewed in the light most favorable for Rynearson, the record shows
that these actions did not occur or did not have the all-powerful effect of shutting
down the immigration inspection. Instead, Rynearson answered every single
question asked but one (the name of his commanding officer, ROA.344), and
cooperated with every single request other than exiting his vehicle and rolling
down his window for the first ten minutes of the detention.
a. There is no sense in which Lands was prohibited from asking
questions, ROA.486or from hearing and understanding the answers. Indeed,
the district court acknowledges as much, recognizing that Rynearsons actions did
not preclude Lands from ask[ing] for identification. ROA.484. The video

31
documents that Lands asked exactly eight questions in the first half of the detention
(and another three questions when he released Rynearson). Rynearson answered
every single one of these questions, and Lands understood and confirmed every
single one of the answers without asking Rynearson to repeat himself. See
ROA.335-ROA.337, ROA.341; Video, 1/0:01-0:35, 1/2:17-2:23, 2/1:23-1:26.
From this interrogation, Lands learned that Rynearson owned the vehicle he was
driving, that he was in the military, that he was stationed in Del Rio, and that he
was an American citizen. ROA.335-ROA.337, ROA.341; Video, 1/0:27-0:34,
1/2:18-2:23, 2/1:24-1:26. Lands learned the last fact as soon as he asked for it.
Accordingly, his immigration questioning was impeded, if at all, only by his own
failure to ask immigration-related questions. Furthermore, Rynearson partially
rolled his window down about ten minutes into the detention, at which point Lands
confirmed that he could hear Rynearson, although asking him to roll the window
down further. ROA.339-ROA.340; Video, 2/0:18.
b. The district courts assertion that the immigration inspection was
impeded by Rynearsons refus[al] to hand over identification cards falls even
further afield. ROA.486. Although Lands stated that he needed to inspect
Rynearsons identification, Rynearson understood that to mean a visual inspection,
as indicated by Lands beginning to copy data from the identification cards when
Rynearson placed them in the window, ROA.336-ROA.337; Video, 1/2:10-2:38.

32
When Perez did clearly make a request for physical inspection of the passports,
Rynearson immediately complied. ROA.342; Video, 2/7:45.
More to the point, Lands purported inability to obtain Rynearson drivers
license and military identification for physical inspection cannot possibly have
impeded his completion of an immigration inspection when Lands himself
considered those documents irrelevant to the task at hand, stating that they did not
mean anything with respect to immigration status because they arent
immigration documents. ROA.340; Video, 2/1:18-1:21. Yet when Rynearson
offered a document of clear relevancea passportLands did not acknowledge
the offer. ROA.471. As with his questioning, to the extent that Lands was
impeded in conducting an immigration inspection, it was his own doing.
c. Rynearsons decision to decline Lands request to exit the vehicle also
had no effect on the agents ability to conduct an immigration inspection. This is
evident from the fact that the paradigmatic immigration inspection involves
making inquiry of a seated driver (and possibly passengers) in a momentarily
stopped vehicle. See Martinez-Fuerte, 428 U.S. at 545-546 (describing standard
operation of checkpoints that were held constitutional, which in no case required
individuals to exit their vehicles). Indeed, as described below, the Fourth
Amendment does not allow an agent to require an individual to exit the vehicle in a
suspicionless checkpoint stop. See infra, pp. 39-40. But even were it otherwise,

33
Lands himself averred that Rynearsons declination of his request to exit the
vehicle did not extend the stop because he simply decided to complete the
inspection with Rynearson in the vehicle. ROA.274. Given that an immigration
inspection is, by design and constitutional limitation, conducted with the individual
in the vehicle, there is no plausible claim that it cannot be conducted unless an
individual exits the vehicle.
Second, the district courts analysis of Rynearsons actions was predicated
on the courts conclusion that the minimal intrusion allowed under Martinez-
Fuerte encompasses compliance by the detained individual with all agent requests,
without any challenge or question. See ROA.486 ([C]ourts have expected
individuals to respond to officers stationed at immigration checkpoint[s] when they
weigh the personal intrusion against the public interest.); ROA.486 (faulting
Rynearson for challenging the agents authority). It bears repeating that
Rynearson did answer questions, allowing the agents to fully pursue the scope of
the immigration-related stop, and then some. Regardless, the Fourth Amendment
precludes the Border Patrol from extending a detention because an individual
declined to agree to the agents requests when they have no authority to compel
compliance.
The district court held that Rynearson had not established that Lands
requests for him to exit the vehicle or to roll down the window violated the Fourth

34
Amendment, and that the additional intrusion of those requests was minimal and
permissible. ROA.483-ROA.484. But that holding answers the wrong question.
The issue is not whether these requests themselves add to the intrusion. They do,
but Rynearson did not agree to these requests and therefore avoided that additional
intrusion. What he could not avoid was the Border Patrols extended seizure of
him on the basis, in part, of his decision to stand on his rights. The issue is thus
whether the Fourth Amendment permits the Border Patrol to extend the duration of
a suspicionless immigration stop (an unquestioned additional intrusion), solely
because an individual stands on his rights not to exit the vehicle, produce
identification, or answer questions.
The answer under clearly established law is no.
a. The Fourth Amendment does not impose obligations on the citizen.
Hiibel v. Sixth Judicial Dist. Ct. of Nev., 542 U.S. 177, 187 (2004). Accordingly,
while the Constitution does not forbid law enforcement officers from asking, an
individual is under no obligation to answer the questions in an investigative stop.
United States v. Shabazz, 993 F.2d 431, 437 (5th Cir. 1993). Nor may a detention
be extended on the basis of an individuals exercise of his rights. Because the
detainee is not obliged to respond, it is only if the detainees answers provide
the officer with probable causeand not if he stands on his rightsthat the
detention can be extended; otherwise he must then be released. Berkemer v.

35
McCarty, 468 U.S. 420, 439-440 (1984).
This freedom to decline to answer questions extends as well to other
requests, such as the request that an individual produce identification. Where an
individual may decline an officers request without fearing prosecutionas
when no positive law requires compliancea refusal to cooperate, without more,
does not furnish the minimal level of objective justification needed for a detention
or seizure, and likewise does not justify the extension of a suspicionless seizure.
See Florida v. Bostick, 501 U.S. 429, 437 (1991). Regardless of the type of
request, the Fourth Amendment provides no authority to the government to demand
compliance. Hiibel, 542 U.S. at 187.
The district court concluded otherwise in reliance on the description of an
immigration-related stop in United States v. Brignoni-Ponce, 422 U.S. 873 (1975).
See ROA.486. But that overreads Brignoni-Ponce. The passage quoted was the
governments description of a typical roving stop. See Brignoni-Ponce, 422 U.S.
at 880 (According to the Government, [a]ll that is required of the vehicles
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.) (quoting governments
brief; alteration in original). Although the Supreme Court in Martinez-Fuerte
likewise quoted the governments description from Brignoni-Ponce, Martinez-
Fuerte, 428 U.S. at 558 (quoting Brignoni-Ponce, 422 U.S. at 880), the Court was

36
not presented with any question regarding particular investigative inquiries or any
individuals required response to them, see id. at 567.
More fundamentally, the principle that the Fourth Amendment does not
impose obligations on the citizen, Hiibel, 542 U.S. at 187, does not change
depending on the type of seizuremuch less operate more permissively for
government action during a suspicionless seizure as compared to an investigative
stop.
b. There is no positive law requiring a citizen to exit his vehicle, to answer
agents questions, or to produce identification at a Border Patrol checkpoint.
Certainly, the government has not once in this case asserted any such authority.
And the statutory authority for suspicionless Border Patrol checkpoints authorizes
the Border Patrol to interrogate only aliens and any person believed to be an
aliennot individuals for whom there is no suspicion of alien statusand to
inspect vehicles for aliens. 8 U.S.C. 1357(a)(1), (a)(3); see Martinez-Fuerte,
428 U.S. at 553 n.8. On the latter point, the Fourth Amendment curtails the
inspection during a suspicionless stop to a visual inspection only. Martinez-
Fuerte, 428 U.S. at 558.
Moreover, although aliens must carry documentation of their status, 8 U.S.C.
1304(e), there is no legal requirement that citizens carry, much less produce on
demand, evidence of their right to be present in the country. Rynearson did

37
produce documentation, to include two passports. But the district courts opinion
holding that it was constitutional for the Border Patrol to detain Rynearson for
thirty-four minutes in part because he refus[ed] to hand over identification cards,
ROA.486, misunderstands what the Fourth Amendment permits of the government
and demands of the people. It would allow the Border Patrol to detain anyone who
does not produce identification for an extended period of time, without any
reasonable suspicion of criminal activity or alien status. See ROA.486.
In sum, regardless of the district courts view of what courts have
expected a citizen to do when faced with a suspicionless checkpoint, ROA.486,
the law is well-established that the Fourth Amendment does not compel him to
answer questions or produce identification documents. Hiibel, 542 U.S. at 187
([T]he Fourth Amendment itself cannot require a suspect to answer questions.).
And the Fourth Amendments strictures on government actioni.e., the tight
limits upon the governments ability to detain individuals at suspicionless
checkpointsare not loosened by a citizens decision to stand on his rights. See
Machuca-Barrera, 261 F.3d at 435 (It would make a mockery of the reasonable
suspicion and probable cause requirements if citizens insistence that searches
and seizures be conducted in conformity with constitutional norms could create the
suspicion or cause that renders their consent unnecessary.) (internal quotation
marks omitted; alteration in original).

38
c. The district court justified imposition of a window-rolled-down
requirement on the ground that the Border Patrol is entitled by the Fourth
Amendment to facilitate the asking of requisite immigration questions.
ROA.483-ROA.484. But, as discussed above, Lands had no difficulty in asking
the requisite immigration questions. He was able to understand Rynearsons
answers, make eye contact with Rynearson, and observe his demeanor. The Fourth
Amendments permission of a brief inquiry into immigration status does not
mandate more than that, and does not permit an extended detention because an
individual did not roll down his window for part of the stop.
d. The district courts approval of the extended detention of Rynearson in
part because he refus[ed] to exit the vehicle, ROA.486, also fails under these
principles. First, as the district court acknowledged, the requirement that an
individual exit the vehicle incident to a suspicionless stop is an additional
intrusion, no matter how slight. Pennsylvania v. Mimms, 434 U.S. 106, 111
(1977) (per curiam); see ROA.484 (calling it an additional invasion but a de
minimis one). But Martinez-Fuerte does not permit the Border Patrol to intrude
upon a citizens privacy one degree beyond its limits. See 428 U.S. at 567 ([O]ur
holding today is limited to the type of stops described in this opinion.).
Moreover, mandating that an individual exit the vehicle would eviscerate the
limitations upon the visual inspection of a vehicle and driver at a suspicionless

39
checkpoint, which is limited to what can be seen without a search. Martinez-
Fuerte, 428 U.S. at 448. That means what can be seen in plain view, United States
v. Arredondo-Hernandez, 574 F.2d 1312, 1314 (5th Cir. 1978), and what may be
seen in plain view is limited to that portion of an interior of an automobile which
may be viewed from outside the vehicle by either inquisitive passersby or diligent
police officers. Texas v. Brown, 460 U.S. 730, 740 (1983). If a Border Patrol
agent could require any individual stopped at a suspicionless immigration
checkpoint to exit the vehicle, absent any individualized suspicion, it would expose
far more of the individuals car and his person than would be otherwise visible to
inquisitive bystanders, expanding the scope of an officers visual inspection in the
ordinary course beyond constitutional limits.
Although the Supreme Court has held this additional intrusion was justified
in a traffic stop, the officer safety justifications present there are inapplicable to
suspicionless immigration checkpoints where agents are present en masse, under
well-lit permanent fixtures, and control the entire traffic flow. See, e.g., Mimms,
434 U.S. at 111 (discussing hazard of accidental injury from passing traffic).
Moreover, the Supreme Court expressly declined to hold that law enforcement may
order an individual out of the vehicle during any stop, but allowed such an
intrusion only once a motor vehicle has been lawfully detained for a traffic
violation. Id. at 111 n.6. Contrary to the district courts interpretation, the

40
Supreme Court did not hold that this intrusion was warranted whether it follows a
suspicionless stop or one with probable cause. ROA.484. Instead, the Supreme
Court simply declined to distinguish between different levels of suspicion-based
stops. Mimms, 434 U.S. at 110.
In sum, both because it did not affect the agents ability to conduct an
immigration inspection and because the agents lacked the authority under the
Fourth Amendment to demand it, the agents cannot justify the thirty-four minute
detention of Rynearson on the ground that he declined to exit the vehicle.
Third, the district court wrongly pretermitted any inquiry into whether the
Border Patrol agents were diligent by concluding that Rynearsons actions,
whether permitted or not, were solely responsible for the extended detention. The
district courts reliance on United States v. Sharpe, 470 U.S. 675 (1985), is
misplaced. See ROA.486. It is only when police are diligent and an individuals
evasive actions of elud[ing] the police contribute to the prolonging of the
detention that a detention may be permitted. Sharpe, 470 U.S. at 688 (upholding a
20-minute stop because the police have acted diligently and a suspects actions
contribute to the added delay about which he complains) (emphasis added).
Where, as here, an individuals actions are not evasive or elud[ing] a police
investigative stop, the government may not extend a suspicionless encounter in

41
response, even if it would be more convenient for the Border Patrol for individuals
to choose to consent to all agent requests.
Finally, even if it were constitutionally permissible to extend an
immigration inspection based on an individuals exercise of his rights, at most
Rynearsons exercise of his rights accounts for less than six minutes of the thirty-
four minute detention. That is the total time in which both he and Lands engaged
in their discussions regarding Lands request for Rynearson to roll down his
window and to exit the vehicle and Rynearsons questions regarding Lands
authority, plus Rynearsons answers to all of Lands' questions. The district court
describes Rynearsons challenging the agents authority as precluding the
immigration inspection, ROA.486, as if Rynearson delivered an unrelenting
monologue and the agents could not possibly get a word or question in edgewise
for thirty-four minutes. Of course, the agents could askand did ask, and received
answers tonumerous questions. See supra, pp. 31-32. Moreover, the total time
that Rynearson occupied in speaking to the agentsincluding questions regarding
their authority and everything elsewas roughly three minutes and eighteen
seconds. Thus, Rynearson did not filibuster the agents. From the very beginning,
when Lands asked and received answers to other questions, it is clear that his
ability to conduct the stop was entirely within his control. And none of the actions

42
identified by the district court has any bearing on the last seventeen minutes of the
stop.
B. Perezs Investigation Of Military Status For Ten To Fifteen
Minutes Unlawfully Extended The Detention
None of the district courts four reasons for justifying the extended detention
of Rynearsonstaying in the car, rolling up the window for part of the time,
questioning whether the agents were conducting the seizure lawfully, and placing
identification on the window, ROA.486applies to the last seventeen minutes of
the detention. At about seventeen minutes into the stop, Perez had two passports in
his possession and had engaged in a brief conversation through a partially rolled
down window in which he indicated he could hear Rynearson. See ROA.342-
ROA.343; Video, 2/7:31-8:37. At some point thereafter, he physically examined
Rynearsons passports and obtained a records check, from which investigation he
determined that Rynearson was an American citizen. ROA.266.
According to Lands, that process should take a couple of minutes.
ROA.259. Yet Rynearson was not further detained for a couple of minutes, but
was held for another seventeen minutes, while Perez called and spoke with at least
one, and possibly two, individuals at Laughlin regarding Rynearsons military
identity and what had happened at the checkpoint. ROA.279 (Perezs
declaration); ROA.358 (letter from Chief Harris).

43
Perezs conduct unlawfully extended Rynearsons detention for two reasons.
First, as the district court acknowledged, any extension of the detention after
confirmation of citizenship status was unlawful. See Portillo-Aguirre, 311 F.3d at
657; ROA.487. Viewed in the light most favorable to Rynearson, that is precisely
what happened here. See Goodson, 202 F.3d at 739 (reversing district courts
grant of summary judgment on qualified immunity because [o]n summary
judgment, [courts] do not make such [factual] determinations but view the
evidence in the light most favorable to the non-movant). Second, even if Perez
had not already completed his citizenship determination when he embarked on his
unrelated errand to confirm Rynearsons military status, this investigatory lark
does not fall within the scope of an immigration inquiry and his pursuit of it
unconstitutionally extended the detention under clearly established law.
1. The Immigration Purpose of the Stop Was Completed Prior to the
Extended Investigation into Military Status
There is no dispute that extending a detention for questioning after
completion of the immigration-related purpose of the stop is unconstitutional. See
ROA.487; Portillo-Aguirre, 311 F.3d at 657. That is what Perez did, when the
record is viewed in the light most favorable to Rynearson. Perez described his two
investigative pursuits in two separate declarations, without illuminating the timing
and relationship between the two. See ROA.264-ROA.267, ROA.278-ROA.279.
One investigation he conducted was to ask for a records check and to carefully

44
scrutinize Rynearsons passports. ROA.266. Perez does not say how long this
took, but Lands reports that such a check generally takes a couple of minutes.
ROA.259. The second investigation Perez undertook was to call Laughlin and
speak with at least one person about Rynearsons military identity and the
encounter at the checkpoint. ROA.279. Chief Harriss letter indicates that Perez
also spoke with Rynearsons commander, ROA.358, but Rynearson was denied
discovery on this point, see infra, pp. 61-64. Perez declares that this process took
ten to fifteen minutes. ROA.279.
It is illogical to infer that these investigations took place at the same time, as
one cannot carefully scrutinize[] a document, ROA.266, while talking on the
phone about something else entirely. Moreover, the video depicts two separate
absences from Rynearsons car. The first absence takes almost three minutes.
ROA.344; Video, 2/9:29-3/2:35. Perez then came back to Rynearsons car and
informed him that Perez was going to call the Provost Marshall and CID.
ROA.344; 3/02:38. He was then absent from Rynearsons car a second time, for
approximately ten minutes, before Lands returned to release Rynearson.
ROA.344-ROA.345, Video, 3/2:38-4/3:45. In the light most favorable to
Rynearson, this demonstrates that Perez left Rynearsons vehicle, conducted his
immigration-related review of Rynearsons passports, and concluded his
citizenship inquiry. He then held Rynearson for another ten minutes solely for the

45
purpose of investigating his military status. That violates clearly established law.
Portillo-Aguirre, 311 F.3d at 657.
The district courts implicit conclusion that Perez did not complete his
citizenship inquiry until after his calls to Laughlin thus draws all inferences against
Rynearson, which is not permitted. See Goodson, 202 F.3d at 739. At the very
least, Rynearson should have been afforded the discovery that he specifically
requested to address this point. See infra, pp. 61-64; ROA.297-ROA.298
(requesting discovery regarding, inter alia, the precise timing of when Defendant
Perez began his records check and when it was concluded).
2. Detention for Ten to Fifteen Minutes in Order to Contact the
Military Violated the Fourth Amendment Regardless of Sequence
The district court shrugged off the ten- to fifteen-minute detention of
Rynearson during the inquiry into his military identity, ROA.279, because the
court held that only continued questioning after the confirmation of citizenship
could violate the Fourth Amendment. ROA.487. This was error. Law
enforcement does not escape Fourth Amendment scrutiny by postponing the
inquiry that justifies the stop until the conclusion of all of its irrelevant
questioning. This Courts precedent is clear that prolonging a stop with dilatory
tactics unrelated to the purpose of the stop is impermissible even if the officers
pursue the irrelevant questioning before, and not after, they move on to the proper
business of the stop. Macias, 658 F.3d at 518-519 (holding that officer unlawfully

46
prolonged a traffic stop when he waited eleven minutes to begin license checks and
asked numerous questions unrelated to the traffic stop for an eight-minute period
prior to beginning the checks); Jones, 234 F.3d at 241 (holding officer unlawfully
extended stop when he had completed traffic citation, but instead of obtaining [the
drivers] signature and returning his drivers license and rental agreement, the
officer chose the more dilatory tactic of exiting the car, returning [the
passengers] identification papers and repeating to [the passenger] the same
questions).
The district court further hypothesized that holding Rynearson for an extra
ten to fifteen minutes in order to call the military was permissible because it was
part of the agents investigation of Rynearsons citizenship. ROA.486-ROA.487.
Not so. Perez specified what he was investigating when he called Laughlin, and it
was not citizenship. Rather, he was investigating Rynearsons military status and
assignment, and informing the Air Force regarding the encounter. ROA.279. The
district court associated military status with citizenship on the ground that
Rynearsons complaint alleged that his military identification should have
indicated to the agents that he was an American citizen. ROA.486-ROA.487. The
Defendants, however, claimed that military identification was irrelevant.
ROA.340. And perhaps for that reason, Perez makes no claim that he was
inquiring into Rynearsons citizenship status when he spoke to one or two

47
individuals at Laughlin, and expressly declares that he verified Rynearsons
citizenship through the alternative means of checking his passport. ROA.266,
ROA.279.
Furthermore, even if the Defendants had called the military for any purpose
related to citizenshipwhich they did notcalling the military is not an efficient
means of ascertaining citizenship status, and accordingly is objectively
unreasonable. See ROA.487 (quoting Brigham, 382 F.3d at 511). Although the
Fourth Amendment does not impose a least intrusive means test, it does forbid
law enforcement from using a lengthy and intrusive means of investigation when
they acted unreasonably in failing to recognize and pursue a quicker and less-
intrusive alternative. Sharpe, 470 U.S. at 687. Here, Perez had two passports,
review of which was certainly the quicker and less intrusive route to inquiring into
Rynearsons citizenship status than taking ten to fifteen minutes to call the
military.
Finally, the district courts reference to calling a supervisor, singular,
reveals yet another error. ROA.486. Chief Harriss letter indicates that Perez
continued to detain Rynearson while he spoke with two individuals: an individual
from Security Forces who, according to Perez, provided all of the military-identity
details he was investigating, ROA.279, and Rynearsons commanding officer.
Neither the district court nor the Defendants articulate any investigative reason,

48
much less some reason within the scope of an immigration stop, for continuing to
detain Rynearson while discussing him with a second person at Laughlin.
4

The district courts holding that Rynearson was solely responsible for any
delay during a thirty-four minute detention for an immigration inspection crumbles
upon comparison to the record. Viewed in the light most favorable to Rynearson,
the Defendants dilatory tactics and irrelevant investigations caused Rynearson to
be detained long after the reasonable time necessary to ask a few questions
regarding immigration status, and therefore violated the Fourth Amendment under
clearly established law.
III. THE EXTENDED DETENTION CANNOT BE JUSTIFIED ON THE
BASIS OF REASONABLE SUSPICION
Lands declared that Rynearsons detention was solely for the purpose of
conducting an immigration inspection, and expressly disclaimed any extension of
the detention on the basis of reasonable suspicion. ROA.258, ROA.260. Perez
declared that he assume[d] responsibility from Lands for completion of the
immigration inspection and does not refer to any characteristics of Rynearsons
appearance or behavior as suspicious. ROA.265. In their summary judgment
motion, the Defendants do not even refer to reasonable suspicion except to note

4
Rynearson requested an opportunity for discovery regarding the extent of Perezs
phone calls to Laughlin, referencing the discrepancy between the accounts in
Perezs declaration and Chief Harriss letter. ROA.298. As discussed below, the
district court erred when it denied Rynearsons motion to continue the summary
judgment proceedings for limited discovery. See supra, pp. 61-64.

49
their ability to detain anyone at an immigration checkpoint without it, and to argue
that Rynearson wrongly claimed during the stop that reasonable suspicion was
required. See ROA.239, ROA.244. The same goes for their Fact Appendix.
ROA.248-ROA.249, ROA.252; see also ROA.364 (reply brief insisting that
Rynearsons reliance on cases regarding investigative stops was inapposite
because [t]his was an immigration inspection).
Yet the district courtperhaps wary of approving thirty-four minute
suspicionless immigration inspectionsheld that the extended detention of
Rynearson was justified by reasonable suspicion of drug trafficking. ROA.485.
This contravenes three principles of the Fourth Amendment. First, a detention may
not be upheld based on post hoc reasonable suspicion. Second, reasonable
suspicion cannot be based on an individuals exercise of his rights or on activity
more consistent with innocence than drug trafficking. Finally, reasonable
suspicion can only justify an extended detention when law enforcement actively
and diligently investigates that suspicion.
A. The Detention Cannot Be Upheld On The Basis Of Post Hoc
Reasonable Suspicion Never Articulated By Any Of The Law
Enforcement Officers Involved
The Supreme Court and this Court have made clear that reasonable suspicion
must be established by facts articulated by the officers. Thus, in Brignoni-Ponce,
the Supreme Court rejected the governments efforts to introduce a new factor

50
the location of the stopinto the reasonable suspicion analysis, when the officers
relied on a single factor (apparent Mexican ancestry) for the stop and gave no
other reason for the stop at trial. 422 U.S. at 885-886, 886 n.11. The Supreme
Court flatly refused the proffered after-the-fact justification. Id. at 886 n.11.
This Court must likewise reject the district courts proffered after-the-fact
justification, because neither agent declared that in his professional judgment, the
facts gave rise to reasonable suspicion of drug trafficking, or that Rynearsons
detention was extended based on reasonable suspicion. Perez did not mention any
suspicion of potential criminal activity at all, and Lands declared that he did not
investigate any criminal activity, nor extend the stop for that purpose. ROA.260;
ROA.264-ROA.267. Nor did the Defendants raise reasonable suspicion as a basis
for the extended detention in their summary judgment motion. See ROA.228-
ROA.245. It is too late now. See Keelan v. Majesco Software, Inc., 407 F.3d 332,
339 (5th Cir. 2005) (It is well settled in this Circuit that the scope of appellate
review on a summary judgment order is limited to matters presented to the district
court.).
Indeed the very test for reasonable suspicionthat it must be based on
articulable facts, Terry v. Ohio, 392 U.S. 1, 21 (1968)presupposes that an
officer has, in fact, articulated some facts giving rise to his suspicion. See
United States v. Olivares-Pacheco, 633 F.3d 399, 400 (5th Cir. 2011) (evaluating

51
reasonable suspicion based on the facts articulated by the agents, as known by
them at the time of the stop) (emphasis added).
This focus on what the officers observed and articulated as suspicious is
consistent with the principle underlying investigative stops, which is that officers
may draw the inference that an individual is engaged in criminal activity given the
officers experience and professional judgment. See United States v. Arvizu, 534
U.S. 266, 273 (2002) (reasonable suspicion analysis examines whether the
detaining officer has a particularized and objective basis for suspecting legal
wrongdoing, allowing officers to draw on their own experience and specialized
training to make inferences). Indeed, this factorthe officers professional
judgmentis so critical that this Court has discounted observed behavior when an
officer does not provide any information regarding his law enforcement experience
that would give context to his suspicions. See Macias, 658 F.3d at 520-521
(holding that because details of the specific officers experience were not in the
record, the court could not evaluate the validity, basis, or intent behind [an
officers] statements that [a detainee] appeared exceptionally nervous for someone
pulled over for a seatbelt violation, thereby undercutting [the officers]
reasonable suspicion).
Here, the officers involved have made no professional judgment that the
circumstances gave rise to reasonable suspicion of criminal activity. The

52
mandatory evaluation of whether that (non-existent) judgment is justified by their
experience is thus impossible. In this case, the district court concluded there was
reasonable suspicion of drug trafficking based on five factors, ROA.485, only two
of which were even identified by Lands as potentially suspicious, ROA.260, and
none of which led to his professional judgmentor Perezsthat there was
reasonable suspicion that Rynearson was trafficking drugs. For example, because
the district court alone drew the conclusion that making multiple phone calls
while in secondary is suspicious, ROA.485, there is no possible way to evaluate
that conclusion in light of the agents experience and professional judgments. Post
hoc hypothesizing based on a courts (non-existent) law enforcement experience
cannot stand in for an officers professional judgment that some behavior gives rise
to reasonable suspicion.
B. The Totality Of Circumstances Does Not Establish Reasonable
Suspicion Of Drug Trafficking
The district courts newly-minted reasonable suspicion of drug trafficking
fails on its own terms in any event. There is no logical basis to suspect an
individual of drug trafficking because he rolls his window up during part of an
immigration stop, engages agents in a discussion regarding their authority to detain
him when they hold him at length without making any inquiries into immigration
status, makes phone calls while being held for more than thirty minutes with
extended periods of no interaction by the agents, declines to exit his vehicle during

53
a suspicionless stop, and immediately places identification on his window glass in
full view and offers additional identification. Because there is no rational reason
to conclude that law-abiding citizens are less likely to assert their rights at a
suspicionless checkpoint than drug smugglersand indeed, every reason to
believe that drug smugglers would not outfit their cars with cameras, ROA.337
(agents noting Rynearsons cameras), or engage in discussions with the agents
regarding the Constitutionthe district courts factors do not contribute the
reasonable suspicion necessary to pass constitutional muster. See United States v.
Rangel-Portillo, 586 F.3d 376, 381 (5th Cir. 2009) (finding no reasonable
suspicion where law-abiding individuals are just as likely to wear their
seatbelts, sit rigidly, and refrain from conversing with one another).
First, any conceivable suspicion of drug smuggling was dispelled long
before the conclusion of the seizure. The district court ignored the totality of the
circumstances, disregarding that a drug dog was run past Rynearsons vehicle and
did not alert. ROA.265. That dispelled any reasonable suspicion that Rynearson
was holding drugs in his door compartment.
Nor does the theory that it was reasonable to suspect that Rynearson was
acting as a decoy or lead vehicle hold water. See ROA.485. A scout vehicle
is one which precedes a load vehicle in transit through checkpoints. United
States v. Reyes, 227 F.3d 263, 266 n.1 (5th Cir. 2000). Load vehicles carry the

54
principal shipment of narcotics, whereas scout vehicles either serve as decoys by
distracting border agents with a smaller amount of narcotics, or as lookouts by
informing the load vehicles when agents are nearby. Id. The object of the scout
vehicle is to be searched. See id. at 264 (drug dog hit on scout vehicle although
there were no narcotics found); United States v. Villalobos, 161 F.3d 285, 288 (5th
Cir. 1998) (same). Rynearsons conduct was entirely inconsistent with that
objective. Moreover, it makes no sense to suppose that an individual would
deliberately attempt to extend a checkpoint encounter in order to serve as lookout
vehicle. The Border Patrols presence at fixed, permanent checkpoints is well-
established, and a lookout could not serve its purpose of scanning for roving agents
if it is held up behind the load vehicle due to an extended checkpoint encounter.
See United States v. Inocencio, 40 F.3d 716, 723 n. 9 (5th Cir. 1994) (The lead
vehicle will drive on ahead and warn the load vehicle, usually via two-way radio,
of any law enforcement officers on the road.).
Any conceivable suspicion that Rynearson was operating as a lead vehicle
was dispelled long before thirty-four minutes passed, as not a single vehicle
apparently presented circumstances suggestive of being a load vehicle during that
time. The video indicates that not a single additional vehicle was referred to
secondary throughout Rynearsons extended detention. Nor could reasonable
suspicion be maintained based on Rynearson initially placing his identification in

55
the window, in light of the fact that he subsequently handed over two passports
immediately on Perezs request. Cf. Dortch, 199 F.3d at 199 (rejecting reasonable
suspicion based on officers assessment that an individual appeared like he
intended to flee, when the government has not advanced any theory explaining
how the officers retained a reasonable suspicion even after the warrant check came
back negative and Dortch had passed on his opportunity for flight).
Second, it is not inherently suspicious for an individual to question law
enforcement regarding the authority to conduct an extended detention, orin the
district courts termsto challenge[] the agents, ROA.485. Lands stated that
Rynearsons actions were unusual, because individuals usually give prompt
answers to [his] questions even after question[ing] why they are being detained
and asked questions about their citizenship. ROA.261. But Rynearson did
promptly answer every single question Lands asked. And unusual does not mean
indicative of drug smuggling. Furthermore, Lands compares apples to oranges: if
relevant at all, the issue is not what individuals usually do when stopped and asked
questions about their citizenship, but what they do when they are stopped, referred
to secondary, and held for eleven minutes before the first question is even asked
about their citizenship. On the contrary, it is quite logical and not suspicious for
law-abiding citizens to become upset when law enforcement repeatedly makes
requests that they have already declined and questions them regarding irrelevant

56
topics. See United States v. Massenburg, 654 F.3d 480, 490 (4th Cir. 2011)
([R]ealistically, few citizens would not have become uncomfortable to some
degree with these questions when police officer repeatedly asked why an
individual would not consent to a search.); United States v. Santos, 403 F.3d 1120,
1131 (10th Cir. 2005) (declining to give independent weight to vague and
inconsistent answers because many motorists, even innocent ones, might think it
none of the troopers business how long they were going to stay in New York).
Furthermore, in another example of turning a blind eye to the totality of the
circumstances, the district court makes no reference to Rynearsons cameras,
which were of great interest to the agents. See ROA.337; Video, 1/2:58. It
beggars logic to suggest that an individual who is seeking to smuggle drugs would
record his every move. The more logical conclusion to be drawn from
Rynearsons challeng[ing] the agents, coupled with his cameras, is not that he
was smuggling drugs but that he was one of many citizens who protest the Border
Patrols authority to seize and interrogate them at suspicionless interior
checkpoints.
5
Indeed, this is actually what the government argued in its summary
judgment motion, as opposed to the district courts drug-smuggler theory. See
ROA.237. That is not the caseRynearson installed the cameras solely to ensure

5
See, e.g., Border Patrol Checkpoints Foiled by Drivers Asserting Their Rights,
HUFFINGTON POST, March 1, 2013,
checkpoints_n_2789592.html.

57
that the facts were documented in the event of an unlawful search or seizure.
ROA.354. But it fatally undercuts the district courts inference of criminal activity
on the basis of Rynearsons temerity to question whether the Border Patrol was
handling his detention lawfully. There is no reasonable suspicion when [n]ot only
are innocent explanations available, but they are probable. Olivares-Pacheco,
633 F.3d at 402.
Third, it is well-established that an individuals exercise of his rights cannot
give rise to reasonable suspicion. See Berkemer, 468 U.S. 420 at 439-440; Bostick,
501 U.S. at 437; Machuca-Barrera, 261 F.3d at 435. That is true even if an
individual became argumentative and difficult. Karnes v. Skrutski, 62 F.3d 485,
496 (3d Cir. 1995), abrogated on other grounds by Curley v. Klem, 499 F.3d 199,
209 (3d Cir. 2007); see also Johnson v. Campbell, 332 F.3d 199, 209 (3d Cir.
2003) (rejecting reasonable suspicion based on nervous, agitated behavior, and an
initial hostile response to officers request to roll down a car window). The
proper exercise of ones constitutional rights cannot be labeled reasonably
suspicious. United States v. Johnson, 620 F.3d 685, 694 (6th Cir. 2010).
That eliminates the district courts entire case for reasonable suspicion. As
discussed above, Rynearson had every right not to exit the vehicle and not to
produce any identification (although he did produce identification), factors not
identified by any agent as suspicious in any event. He also had the right to

58
maintain his window closed or partially rolled down so long as the agents could
freely question him, as they did.
Fourth, the agents conduct during the extended detention establishes that
the district courts factors do not generate reasonable suspicion. This Court will
not accept an officers declaration that some conduct is suspicious when the
officers conduct during the stop evidences no concern for the purportedly
suspicious circumstance. See Macias, 658 F.3d at 521 (rejecting argument that an
officers suspicion was heightened because [a driver] misrepresented his
criminal background when the officer seemed unconcerned after uncovering a
possible inconsistency and launched into another series of questions to [the
passenger] concerning [unrelated matters]); Jones, 234 F.3d at 241-242 (rejecting
reasonable suspicion where, contrary to [the officers] testimony that [the
detainees] statements about [a particular topic] aroused his suspicions, the
videotape and transcript reflect that [the officer] understood the situation and
was not overtly troubled by any alleged discrepancy).
The conduct of Lands and Perez is not consistent with a holding that the
district courts identified factors raise suspicion of drug trafficking. The agents did
not run a second drug-dog sniff. They asked no questions related to drugs, or even
travel plans. They asked no questions regarding who Rynearson was calling on the
phone (which he informed them was the FBI in any event) or whether he was

59
traveling with anyone else. They did not engage in any heightened scrutiny of the
cars following Rynearson in light of any concern that he was operating as a lead
vehicle. In short, they did not act upon any purportedly suspicious
circumstances, and thereby undermined any claim of reasonable suspicion (which,
of course, they did not even themselves assert). Macias, 658 F.3d at 521.
C. The Thirty-Four Minute Detention Was Unreasonable Because
The Agents Made No Efforts To Confirm Or Dispel Any
Suspicion, Much Less Diligent Efforts
Even if reasonable suspicion of drug trafficking arose at some point during
the detention, reasonable suspicion is not a get-out-of-the-Fourth-Amendment-free
card that allows officers to detain someone for an extended period of time
regardless of what they do with that time. See United States v. Pack, 612 F.3d 341,
350 (5th Cir. 2010), modified on denial of rehg, 622 F.3d 383 (5th Cir. 2010)
(Law enforcement may not detain an individual indefinitely, fishing for evidence
of every conceivable crime that might explain the suspicious facts they articulate
as having created their reasonable suspicion.). Rather, if one of the agents had
developed reasonable suspicion, that suspicion would have justified additional time
for that agent to pursue diligently a means of investigation likely to confirm or
dispel quickly that particular suspicion. See Macias, 658 F.3d at 522 (An officer
must diligently pursue[] a means of investigation that was likely to confirm or
dispel [his suspicion] quickly.) (internal quotation marks omitted; second

60
alteration in original). And the agent would have to justify each crime he
investigates during the extended detention as reasonably likely to explain the
facts the officer reasonably found suspicious. Id. at 520.
Where, as here, the agents investigated no crimes during the extended
detention, they simply cannot meet that burden. As discussed above, the
Defendants did not ask questions about drug possession or drug trafficking, did not
conduct a second drug-dog sniff, did not ask who Rynearson was speaking with on
the phone, did not ask him if he was traveling with any other vehicle, did not
search for a load vehicle following Rynearson, and did not refer any vehicle
behind him to secondary. In short, the Defendants did not pursue investigation of
drug smuggling in any manner. Rather, they declared precisely what they
investigatedan aborted immigration inspection, ROA.260 (Lands), and an
immigration inspection and investigation of military status, ROA.266, ROA.279
(Perez). Because the agents did nothing to investigate drug smugglingnot
surprisingly, given that neither officer claimed to have detained Rynearson for an
extended period of time for that purposethe thirty-four minute detention cannot
be justified on the ground that they diligently pursued investigative tactics
designed to confirm or dispel reasonable suspicion of drug trafficking.

61
IV. THE DISTRICT COURT ABUSED ITS DISCRETION BY
REFUSING TO GRANT A CONTINUANCE FOR LIMITED
DISCOVERY
When a party is not given a full and fair opportunity to discover
information essential to its opposition to summary judgment, the limitation on
discovery is reversible error. Access Telecom, Inc. v. MCI Telecomms. Corp., 197
F.3d 694, 720 (5th Cir. 1999). Rule 56(d) discovery motions are broadly favored
and should be liberally granted. Raby v. Livingston, 600 F.3d 552, 561 (5th Cir.
2010) (internal quotation marks omitted). The district court should grant a
continuance for additional discovery if the party opposing summary judgment
show[s] how the additional discovery will create a genuine dispute as to a
material fact. Intl Shortstop, Inc. v. Rally's Inc., 939 F.2d 1257, 1267 (5th Cir.
1991).
These rules are no different in the context of qualified immunity, although
the district court should limit the extent of discovery in such cases if possible.
Curtis, 710 F.3d at 594 (reiterating, in qualified immunity case, that Rule 56(d)
motions are broadly favored and should be liberally granted). In this case, the
district court did not limit discovery, but precluded any discovery altogether prior
to granting summary judgment to the Defendants. Such a ruling is highly
disfavored. See Xerox Corp. v. Genmoora Corp., 888 F.2d 345, 353 (5th Cir.
1989) (holding summary judgment should not ordinarily be granted before

62
discovery has been completed, particularly where a party is seeking not
additional discovery, but discovery at all). And even in qualified immunity cases,
discovery may proceed once the plaintiffs pleadings assert facts which, if true,
would overcome the defense. Vander Zee v. Reno, 73 F.3d 1365, 1368-1369 (5th
Cir. 1996).
The Defendants did not move to dismiss Rynearsons amended complaint
for failure to state a claim of an unlawful seizure, but rather moved for summary
judgment on that claim. See ROA.236. Given that the Defendants did not contest
that Rynearsons complaint assert[ed] facts which, if true, would overcome the
defense, Vander Zee, 73 F.3d at 1368, the district courts reliance upon the
principle that discovery may be entirely precluded unless the plaintiff has pleaded
his claim with sufficient precision and factual specificity, Schultea v. Wood, 47
F.3d 1427, 1434 (5th Cir. 1995), was entirely misplaced. See ROA.492 (relying
upon Schultea in denying Rule 56(d) motion for discovery).
The district court abused its discretion in denying all discovery because
Rynearson pointed to several types of information that would establish a genuine
dispute of material fact, even under the district courts cramped view of the Fourth
Amendments protections. For example, the district court acknowledged that if
Perez had continued to detain Rynearson after confirming Rynearsons citizenship,
then it was a violation of the Fourth Amendment. ROA.487. Yet the district court

63
precluded Rynearson from obtaining any discovery that would have revealed
whether Perez in fact completed his immigration check long before instructing
Lands to release Rynearson. See ROA.297-298 (Rule 56(d) motion seeking
discovery regarding when Perez completed his records check). This is a fact issue
of established materiality to the question whether the Border Patrol unlawfully
extended a checkpoint seizure. See United States v. Chacon, 330 F.3d 323, 324
(5th Cir. 2003) ([W]e must remand for further findings to ascertain, inter alia,
whether the Border Patrol officer had not completed his immigration inspection
when, on his way out of the bus, he stopped and asked [the detained individual]
and his companion some questions.).
In addition, the district court precluded Rynearson from obtaining any
discovery regarding how many people Perez called at Laughlin, and what precisely
they discussed, which would have refuted the district courts position that Perez
was investigating citizenship when he made those calls, and that this effort to reach
out to multiple individuals at Laughlin was an efficient means, ROA.487, to
investigate any matter within the scope of the seizure. See ROA.298. The district
court likewise precluded Rynearson from obtaining any discovery regarding the
on-site supervisory agent, which could have established that there was no
justification for the additional delay occasioned by Lands decision to call an off-

64
site supervisor, yet one more reason why this thirty-four minute detention far
exceeded the maximum reasonable time. See ROA.298.
Rule 56(d) exists to safeguard non-moving parties from summary judgment
motions that they cannot adequately oppose. Curtis, 710 F.3d at 594. The district
courts view that the only relevant interests to be safeguarded were the Defendants
claims to immunity, ROA.492, misunderstands governing law. The district courts
grant of summary judgment to the Defendants in the absence of any opportunity
for Rynearson to conduct any discovery was an abuse of discretion that requires
reversal.
CONCLUSION

For the foregoing reasons, the judgment of the district court should be
reversed.
February 28, 2014 Respectfully submitted,

Javier N. Maldonado
LAW OFFICE OF JAVIER N. MALDONADO, PC
Suite 575
8918 Tesoro Drive
Telephone: 210-277-1603
Fax: 210-587-4001
Email: jmaldonado.law@gmail.com
Attorney for Appellant Richard Rynearson

65
CERTIFICATE OF SERVICE

I hereby certify that, on February 28, 2014, I served the foregoing brief upon
the following counsel of record by filing a copy of the document with the Clerk
through the Courts electronic docketing system:
Harold Edwin Brown, Jr.
U.S. ATTORNEYS OFFICE
Western District of Texas
601 N.W. Loop 410, Suite 600
San Antonio, TX 78216-5512
harold.brown@usdoj.gov

Javier N. Maldonado


66
CERTIFICATE OF COMPLIANCE

The foregoing brief is in 14-point Times New Roman proportional font and
contains less than 14,000 words, and thus complies with the type-volume limitation
set forth in Rule 32(a)(7)(B) of the Federal Rules of Appellate Procedure.

s/Javier N. Maldonado
Javier N. Maldonado

February 28, 2014

NO. 13-51114


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

BRIEF FOR AMICUS CURIAE
TEXAS CIVIL RIGHTS PROJECT

(filed in support of Appellant Richard Rynearson and urging reversal)

Amy C. Eikel
(attorney in charge)
Texas Bar No. 00787421
KING & SPALDING LLP
1100 Louisiana, Suite 4000
Houston, Texas 77002
Phone: (713) 751-3200
Fax: (713) 751-3290
Email: aeikel@kslaw.com

Attorney for Amicus Curiae Texas Civil Rights Project

i
SUPPLEMENTAL STATEMENT OF INTERESTED PARTIES
No. 13-51114, Rynearson v. United States of America.
In compliance with Rule 29.2, the undersigned counsel of record
certifies that, in addition to those persons listed in the parties certificates of
interested persons, the following listed persons and entities as described in
the fourth sentence of Rule 28.2.1 have an interest in this amicus brief.
These representations are made in order that the judges of this Court may
evaluate possible disqualification or recusal.
Amicus Curiae Texas Civil Rights Project

Amicus Curiae Texas Civil Rights Project certifies that it is a not-for-
profit corporation with no parent corporation and that there is no publicly
held corporation that owns 10% or more of its stock.
Counsel for Amicus Curiae Texas Civil Rights Project
Amy C. Eikel
KING & SPALDING LLP

s/ Amy C. Eikel_________
Amy C. Eikel, Attorney of Record
for Amicus Curiae
Texas Civil Rights Project

ii
TABLE OF CONTENTS
SUPPLEMENTAL STATEMENT OF INTERESTED PARTIES ............................ i
TABLE OF CONTENTS .......................................................................................... ii
TABLE OF AUTHORITIES ................................................................................... iii
STATEMENT OF INTEREST .................................................................................. 1
RULE 29(C)(5) STATEMENT ................................................................................. 1
STATEMENT OF THE ISSUES ADDRESSED BY AMICUS CURIAE .............. 2
SUMMARY OF THE ARGUMENT ........................................................................ 2
ARGUMENT ............................................................................................................. 4
I. A checkpoint detainee has a constitutional right to refuse to cooperate
with police inquiries. ....................................................................................... 4
II. A Border Patrol officer may not extend the duration of a suspicionless
immigration stop solely because an individual stands on his rights. .............. 9
CONCLUSION ........................................................................................................ 20
CERTIFICATE OF COMPLIANCE ....................................................................... 21
CERTIFICATE OF FILING AND SERVICE ........................................................ 22


iii
Cases Pages

Berkemer v. McCarty,
468 U.S. 420 (1984) ................................................................................. 5-8
City of Houston v. Hill,
482 U.S. 451 (1987) .................................................................................. 13
City of Indianapolis v. Edmond,
531 U.S. 32 (2000) ...................................................................................... 8
Curley v. Klem,
499 F.3d 199 (3d Cir. 2007) ..................................................................... 13
Davis v. Mississippi,
394 U.S. 721(1969) ..................................................................................... 5
Florida v. Bostick,
501 U.S. 429 (1991) .................................................................................. 10
Florida v. Royer,
460 U.S. 491(1983) ................................................................................... 11
Illinois v. Wardlow,
528 U.S. 119 (2000) .................................................................. 4, 12, 17, 19
Johnson v. Campbell,
332 F.3d 199 (3d Cir. 2003) ......................................................... 14, 15, 16
Karnes v. Skrutski,
62 F.3d 485 (3d Cir. 1995) ........................................................... 13, 14, 19
Kolender v. Lawson,
461 U.S. 352 (1983) ........................................................................ 5, 15, 16
Miranda v. Arizona,
384 U.S. 436 (1966) ............................................................................ 6, 7, 8
Terry v. Ohio,
392 U.S. 1 (1968) ............................................................................... passim
Tom v. Voida,
963 F.2d 952 (7th Cir. 1992) .................................................................... 12
United States v. Brignoni-Ponce,
422 U.S. 873 (1975) .................................................................................... 9

iv
United States v. Charrington,
285 F. Supp. 2d 1063 (S.D. Ohio 2003) ............................................. 10, 19
United States v. Everett,
601 F.3d 484 (6th Cir. 2010) ...................................................................... 6
United States v. Garcia-Garcia,
319 F.3d 726 (5th Cir. 2003) .................................................................... 19
United States v. Hunnicutt,
135 F.3d 1345 (10th Cir. 1998) ................................................................ 10
United States v. Johnson,
620 F.3d 685 (6th Cir. 2010) .................................................................... 16
United States v. Machuca-Barrera,
261 F.3d 425 (5th Cir. 2001) .................................................................... 10
United States v. Martinez-Fuerte,
428 U.S. 543 (1976) ...................................................................... 2, 4, 9, 20
United States v. Massenburg,
654 F.3d 480 (4th Cir. 2011) .................................................................... 10
United States v. Place,
462 U.S. 696 (1983) .................................................................................... 8
United States v. Portillo-Aguirre,
311 F.3d 647 (5th Cir. 2002) .................................................................... 18
United States v. Santos,
403 F.3d 1120 (10th Cir. 2005) ................................................................ 10
United States v. Shabazz,
993 F.2d 431 (5th Cir. 1993) ................................................................ 6, 18
United States v. Sharpe,
470 U.S. 675 (1985) ............................................................................ 11, 17


1
STATEMENT OF INTEREST
The Texas Civil Rights Project (TCRP) is a non-profit public
interest law organization with a membership base of approximately 3,000
Texans. TCRP has always had a strong interest in ensuring that individuals
civil rights and liberties under the Bill of Rights of the United States
Constitution are not abridged or modified, whether through legislation,
improper enforcement, or judicial action. TCRP has appeared as amicus
curiae or represented individuals in litigation involving privacy rights and
Fourth Amendment rights to be free from illegal search and seizure.
Counsel for all parties have consented to the filing of TCRPs amicus
brief in this appeal.
RULE 29(C)(5) STATEMENT
No counsel for a party authored this brief in whole or in part, and no
such counsel or party made a monetary contribution intended to fund the
preparation or submission of this brief. No person other than the amicus
curiae, its members or its counsel, made a monetary contribution intended to
fund the preparation or submission of this brief.


2
STATEMENT OF ISSUES ADDRESSED BY AMICUS CURIAE
1. Does a detainee at an immigration checkpoint have a Fourth
Amendment right to decline to cooperate with Border Patrol agents or
respond to their questions?
2. Does the Fourth Amendment permit the Border Patrol to extend
the duration of a suspicionless immigration stop solely because an individual
stands on his rights not to exit the vehicle, roll his window completely down,
produce identification, or answer every question asked? Does such lack of
cooperation, in itself, justify extension of a checkpoint stop beyond the brief
and nonintrusive detention contemplated by Martinez-Fuerte?
SUMMARY OF THE ARGUMENT
The district courts opinion below incorrectly assumed that a traveler
is required, and presumably may be compelled, to answer every question
asked by an officer at a suspicionless checkpoint. In this brief, Amicus
Curiae Texas Civil Rights Project will outline the clearly established law
showing that an individual is under no obligation to respond to law
enforcement officers questions during an investigative stop, and in fact has
a constitutional right to remain silent and decline to cooperate.
The district court also incorrectly assumed that a checkpoint
detainees exercise of his constitutional rights provides a valid reason to

3
detain him for a longer period of time, either because his lack of cooperation
raises some kind of suspicion of criminal activity justifying further
detention, or because the detainees exercise of his rights makes him, and
not the government agents, responsible for any increase in the length of the
detention. These conclusions are not supported by the law.
Although a traveler stopped at an immigration checkpoint must stop
when ordered to do so, he has no obligation to affirmatively cooperate with
and actively assist an officers immigration inspection. If a traveler chooses
not to answer some questions, or otherwise chooses to stand on his right not
to cooperate, that partial refusal or lesser level of cooperation does not
justify longer or indefinite detention. Otherwise, any officer at an
immigration checkpoint could theoretically detain a traveler indefinitely
until the officer is subjectively satisfied that the traveler is not violating
immigration laws (or any other laws), and the immigration stop would be
converted into a de facto arrest. The Fourth Amendments tight limitations
on the conduct of government agents at suspicionless checkpoints are not
loosened by a citizens decision to stand on his rights.

4
ARGUMENT
I. A CHECKPOINT DETAINEE HAS A CONSTITUTIONAL RIGHT TO REFUSE
TO COOPERATE WITH POLICE INQUIRIES.
[W]hen an officer, without reasonable suspicion or probable cause,
approaches an individual, the individual has the right to ignore the police
and go about his business. And any refusal to cooperate, without more, does
not furnish the minimal level of objective justification needed for a detention
or seizure. Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (citations and
internal quotation marks omitted). An individual normally has the right to
go about his business or to stay put and remain silent in the face of police
questioning. Id.
During an investigatory detention governed by Terry v. Ohio, 392
U.S. 1 (1968) and its progeny,
1
a law enforcement officer may ask the
detainee a moderate number of questions to determine his identity and to try
to obtain information confirming or dispelling the officers suspicions. But

1
Although an immigration checkpoint stop does not require reasonable suspicion
at its inception, Terry and its progeny have been used to evaluate whether
checkpoint stops are lawful in scope and duration. See United States v. Ellis, 330
F.3d 677, 679-80 (5th Cir. 2003) (noting that the Fifth Circuit delineated the
bounds of immigration stops by applying our long-standing jurisprudence
regarding stops based on reasonable suspicionso-called Terry stopsto
programmatic immigration stops.); see also United States v. Martinez-Fuerte,
428 U.S. 543, 557-62 (1976) (relying on Terry to set appropriate limitations on
the scope of the stop, limitations that provide the principal protection of Fourth
Amendment rights at checkpoints).


5
the detainee is not obliged to respond. And, unless the detainees answers
provide the officer with probable cause to arrest him, he must then be
released. Berkemer v. McCarty, 468 U.S. 420, 437-40 (1984) (emphasis
added); see also Terry v. Ohio, 392 U.S. 1, 34 (1968) (White, J ., concurring)
(observing that in an investigatory detention, the person stopped is not
obliged to answer, answers may not be compelled, and refusal to answer
furnishes no basis for an arrest) (emphasis added).
It is a settled principle that while police have the right to request
citizens to answer voluntarily questions concerning unsolved crimes they
have no right to compel them to answer. Kolender v. Lawson, 461 U.S.
352, 360 & n.9 (1983) (quoting Davis w. Mississippi, 394 U.S. 721, 727 n.6
(1969)) (emphasis added). The Supreme Court held in Kolender that to the
extent that state law criminalizes a suspects failure to answer . . . questions
put to him by police officers, Fifth Amendment concerns are implicated.
Kolender, 461 U.S. at 727 n.6.
2

2
Hiibel v. Sixth Judicial District Court, 542 U.S. 177 (2004), did not hold to the
contrary. Hiibel merely upheld a narrow state statute allowing arrest for a
suspects failure to identify himself when validly stopped for reasonable
suspicion of a crime, and when the request for identification was reasonably
related to the circumstances justifying the stop. Hiibel, 542 U.S. at 187-88. Hiibel
acknowledged, but factually distinguished, language in the majority opinion in
Berkemer and the concurrence in Terry that a suspect detained during a Terry
stop is not obliged to respond to questions. Hiibel, 542 U.S. at 187. Because the
Nevada statute only required a suspect to identify himself, and expressly did not

6
Although the Constitution does not forbid law enforcement officers
from asking questions during a traffic stop if the detention is not lengthened
thereby, detainees are under no obligation to answer the questions.
United States v. Shabazz, 993 F.2d 431, 437 (5th Cir. 1993) (emphasis
added); see also United States v. Everett, 601 F.3d 484, 496 (6th Cir. 2010)
(the rule that extraneous questions during a Terry stop are permissible, in
the absence of prolongation of the detention, is premised upon the
assumption that the motorists responses are voluntary and not coerced.).
Indeed, a detainees constitutional right not to answer police questions
is inherent in the nature of a Terry-type investigatory detention. The
Supreme Court relied on this idea in Berkemer, when it held that a vehicle
stop detainee is not in custody for the purposes of Miranda v. Arizona, 384
U.S. 436 (1966), and that therefore an officer is not required to read the
suspect his Miranda rights during a traffic stop. The Courts holding was
explicitly based on the premise that traffic stops, like traditional Terry stops,
are nonthreatening and noncoercive because the detainee is not
required to respond to the officers questions:

require the suspect to answer any other inquiry, the Hiibel majority concluded
that Berkemer and Terry were not controlling on the narrow issue of whether a
State can compel a suspect to disclose his name during a Terry stop. Id. at 187.
Because Mr. Rynearson did identify himself, Hiibel is not at issue here.


7
Two features of an ordinary traffic stop mitigate the danger that
a person questioned will be induced to speak where he would
not otherwise do so freely, [as contemplated by Miranda v.
Arizona]. First, detention of a motorist pursuant to a traffic stop
is presumptively temporary and brief. The vast majority of
roadside detentions last only a few minutes. . . . Second,
circumstances associated with the typical traffic stop are not
such that the motorist feels completely at the mercy of the
police. To be sure, the aura of authority surrounding an armed,
uniformed officer and the knowledge that the officer has some
discretion in deciding whether to issue a citation, in
combination, exert some pressure on the detainee to respond to
questions. But other aspects of the situation substantially offset
these forces. . . . In both of these respects, the usual traffic stop
is more analogous to a so-called Terry stop, . . . than to a
formal arrest. . . . Under the Fourth Amendment, we have held,
a policeman who lacks probable cause but whose observations
lead him reasonably to suspect that a particular person has
committed, is committing, or is about to commit a crime, may
detain that person briefly in order to investigate the
circumstances that provoke suspicion. . . . Typically, this means
that the officer may ask the detainee a moderate number of
questions to determine his identity and to try to obtain
information confirming or dispelling the officers suspicions.
But the detainee is not obliged to respond. And, unless the
detainees answers provide the officer with probable cause
to arrest him, he must then be released. The comparatively
nonthreatening character of detentions of this sort explains the
absence of any suggestion in our opinions that Terry stops are
subject to the dictates of Miranda. The similarly noncoercive
aspect of ordinary traffic stops prompts us to hold that persons
temporarily detained pursuant to such stops are not in custody
for the purposes of Miranda.
Berkemer v. McCarty, 468 U.S. 420, 437-40 (1984) (citations and internal
quotation marks omitted; emphasis added). Under this reasoning, if a Terry
detainee were able to be compelled to respond to questions, he should not be

8
interrogated without being read his Miranda rights. See Berkemer, 468 U.S.
at 434 (as opposed to a traffic stop detainee, a person subjected to custodial
interrogation is entitled to the benefit of the procedural safeguards
enunciated in Miranda).
J ustice Brennan similarly explained the nature of a Terry stop in his
concurring opinion in United States v. Place, noting that Terrys relaxation
of the probable cause standard is justified only by the requirements that an
investigatory stop be brief, minimally intrusive, and not coercive.
It is clear that Terry, and the cases that followed it, permit only
brief investigative stops and extremely limited searches based
on reasonable suspicion. They do not provide the police with a
commission to employ whatever investigative techniques they
deem appropriate. . . . Anything more than a brief stop must be
based on consent or probable cause. During the course of this
stop, the suspect must not be moved or asked to move more
than a short distance; physical searches are permitted only to
the extent necessary to protect the police officers involved
during the encounter; and, most importantly, the suspect
must be free to leave after a short time and to decline to
answer the questions put to him.
United States v. Place, 462 U.S. 696, 714-15 (1983) (Brennan, J .,
concurring) (internal citations and quotation marks omitted).
Immigration checkpoint stops are arguably even more limited than
Terry stops, given that they are made with no suspicion at all. See City of
Indianapolis v. Edmond, 531 U.S. 32, 39 (2000) (noting that

9
constitutionality of suspicionless immigration checkpoints is justified by
the relatively modest degree of intrusion entailed by the stops).
The principal protection of Fourth Amendment rights at checkpoints
lies in appropriate limitations on the scope of the stop. United States v.
Martinez-Fuerte, 428 U.S. 543, 557-58 (1976) (citing Terry, 392 U.S. at 24-
27; United States v. Brignoni-Ponce, 422 U.S. 873, 881-82 (1975)).
Therefore, given the established law to the contrary, the district court
erred in assuming (ROA.486) that a checkpoint detainee is required or
expected to respond to all questions from a Border Patrol officer. Instead,
the checkpoint detainee, like any person stopped under Terry, has a well-
established constitutional right not to respond or cooperate.
II. A BORDER PATROL OFFICER MAY NOT EXTEND THE DURATION OF A
SUSPICIONLESS IMMIGRATION STOP SOLELY BECAUSE AN INDIVIDUAL
STANDS ON HIS RIGHTS.
As stated above, a traveler stopped at an immigration checkpoint may
not be required or compelled to cooperate or respond to all of the officers
questions, either by being arrested for failing to respond, or by having his
detention extended until he does respond.
We have consistently held that a refusal to cooperate, without more,
does not furnish the minimal level of objective justification needed for a
detention or seizure, and an individual may decline an officer's request

10
without fearing prosecution. Florida v. Bostick, 501 U.S. 429, 435-37
(1991). It would make a mockery of the reasonable suspicion and probable
cause requirements . . . if citizens insistence that searches and seizures be
conducted in conformity with constitutional norms could create the
suspicion or cause that renders their consent unnecessary. United States v.
Machuca-Barrera 261 F.3d 425, 435 n.32 (5th Cir. 2001) (quoting United
States v. Hunnicutt, 135 F.3d 1345, 135051 (10th Cir. 1998)).
If ones refusal to cooperate with law enforcement were enough to
justify prolonged detention . . . the strictures of the Fourth Amendment,
would mean little to nothing. United States v. Charrington, 285 F. Supp. 2d
1063, 1069 (S.D. Ohio 2003) (holding that prolonged detention of defendant
at military checkpoint violated the Fourth Amendment and that failure to
cooperate did not justify further detention absent probable cause of a
crime); see also United States v. Massenburg, 654 F.3d 480, 491 (4th Cir.
2011) (no reasonable suspicion was raised from defendants refusal to
consent to a search and avoidance of eye contact, which is simply a mild
reaction to repeated requests to relinquish ones constitutional right to be
free from unreasonable searches). If refusal of consent were a basis for
reasonable suspicion, nothing would be left of Fourth Amendment
protections. United States v. Santos, 403 F.3d 1120, 1126 (10th Cir. 2005).

11
Thus, although a traveler stopped at an immigration checkpoint must
stop when ordered to do so, he has no obligation to affirmatively cooperate
with and actively assist an officers immigration inspection. If a traveler
chooses not to answer some questions (or otherwise chooses to stand on his
rights by verbally challenging the officers legal authority to detain him, or
declines, for example, to get out of the car, roll his window fully down, or
volunteer information or documents he has not yet been asked for), that
partial refusal or lesser level of cooperation does not justify indefinite
detention until all questions (whether related to immigration or not) are
answered to the officers satisfaction. If that were true, an officer at an
immigration checkpoint could theoretically detain a traveler indefinitely
until the officer is subjectively satisfied that the traveler is not violating
immigration laws (or any other laws), and the immigration stop would be
converted into a de facto arrest. See United States v. Sharpe, 470 U.S. 675,
685 (1985) (Obviously, if an investigative stop continues indefinitely, at
some point it can no longer be justified as an investigative stop.); Florida v.
Royer, 460 U.S. 491, 499 (1983) (In the name of investigating a person
who is no more than suspected of criminal activity, the police may not . . .
seek to verify their suspicions by means that approach the conditions of
arrest). The Terry stop is a far more minimal intrusion [than an arrest on

12
probable cause], simply allowing the officer to briefly investigate further. If
the officer does not learn facts rising to the level of probable cause, the
individual must be allowed to go on his way. Wardlow, 528 U.S. at 126.
The Seventh Circuit discussed the problems that could arise if
detainees are denied the right to refuse to respond to questions or requests
posed during Terry stops, although it ultimately did not reach the issue on
the facts of the particular case:
[I]f citizens do not have a right to refuse to answer, then the
Terry stop becomes an extraordinarily powerful law
enforcement device, for it permits law enforcement officers to
bootstrap their reasonable suspicion of criminal activity
justifying an investigative stop into probable cause justifying a
search or an arrest based solely on the suspects refusal to
respond to the investigative stop. Citizens are thus placed in a
dilemma: individuals who chose to remain silent would be
forced to relinquish their right not to be searched, while those
who chose not to be searched would be forced to forgo their
constitutional right to remain silent.
Tom v. Voida, 963 F.2d 952, 959 (7th Cir. 1992) (internal quotation marks
omitted) (not reaching refusal to answer issue because suspect created
probable cause for arrest by headlong flight from police and other suspicious
behavior).
The district court faults Mr. Rynearson for being combative and
evasive, making phone calls while in his car, and for challenging the
agents authority by arguing with Agent Lands about the appropriate legal

13
standard for searches and seizures. (ROA.471, 485-86). When Mr.
Rynearson declined to step out of the car or roll down his window, and other
agents pointed out the video cameras attached to the car, the agent stated that
they would do this the hard way. (ROA.471). But Mr. Rynearsons
exercise of his constitutional rights is an invalid reason to extend his
detention or otherwise penalize him. See City of Houston v. Hill, 482 U.S.
451, 462-63 (1987) (The freedom of individuals verbally to oppose or
challenge police action without thereby risking arrest is one of the principal
characteristics by which we distinguish a free nation from a police state.);
cf. Brigoni-Ponce, 422 U.S. at 889 (Douglas, J ., concurring) (criticizing the
potential abusive use of reasonable suspicion against a multitude of law-
abiding citizens, whose only transgression may be a nonconformist
appearance or attitude).
The Third Circuit held that a traffic detainees refusal to cooperate,
refusal to consent to a search, being argumentative and difficult, and
challenging the officers authority, did not justify prolonging the traffic stop
to an excessive length. See Karnes v. Skrutski, 62 F.3d 485, 495-97 (3d Cir.
1995), overruled in part on other grounds by Curley v. Klem, 499 F.3d 199,
209-11 (3d Cir. 2007). Karnes right to refuse to consent falls within the
Fourth Amendments core protection against unreasonable searches and

14
seizures. Karnes exercise of that right cannot be penalized . . . even if . . .
Karnes became argumentative and difficult. Karnes, 62 F.3d at 495-96. The
officers argued that any additional delay was attributable to Karnes because
he asked the troopers questions, argued with them, challenged their
procedures, and insisted on explanations as to their actions. Id. at 497. But
the court held that the delayed detention was the result primarily of the
defendants dilatory investigation, not the plaintiffs questioning, and that
the officers argument about delay shows a misunderstanding about the
purposes of the Fourth Amendment. Id.
Karnes does not bear the burden of justifying his refusal to
allow police to invade his privacy; it is rather the government
official who must meet the constitutional requirements before
he can encroach upon an individuals privacy. The district
courts grant of qualified immunity to defendants on the length
of detention issue was improper.
Karnes, 62 F.3d at 497.
The district court also faults Mr. Rynearson for refusing at one point
to lower his car window. (ROA.485-86). This behavior was labeled
abnormal, evasive, and atypical of a United States citizen. (ROA.471,
487). But a refusal to cooperate by rolling down a car window, even an ill-
mannered refusal, is within the rights of a Terry detainee and does not
constitute reasonable suspicion of criminal activity. See Johnson v.
Campbell, 332 F.3d 199, 208-10 (3d Cir. 2003) (holding that defendants

15
initial hostile response to [the officers] request to roll down the window,
questioning of the officers motives, and demand to know why he was
stopped did not justify detention or arrest). [T]he only evasive action
J ohnson took was his initial refusal to roll down his window. . . . [T]his kind
of refusal to comply . . . was perfectly within J ohnsons rights; it cannot
provide cause for a reasonable suspicion of wrongdoing. Id. at 210.
Absent probable cause to arrest, a detainees refusal to cooperate or
answer questions cannot be a basis for extending the duration of a Terry stop
or other investigative detention. J ustice Brennan explained that law
enforcement officers may not prolong a Terry stop to compel a detainee to
answer questions; rather, the suspect must be free to leave after a short time
and to decline to answer the questions put to him. Kolender, 461 U.S. at
364-65 (Brennan, J ., concurring). Failure to observe these limitations
converts a Terry encounter into the sort of detention that can be justified
only by probable cause to believe that a crime has been committed.
The power to arrestor otherwise to prolong a seizure until a
suspect had responded to the satisfaction of the police
officerswould undoubtedly elicit cooperation from a high
percentage of even those very few individuals not sufficiently
coerced by a show of authority, brief physical detention, and a
frisk. . . . But the balance struck by the Fourth Amendment . . .
forbids such expansion. . . . [P]robable cause, and nothing
less, represents the point at which the interests of law
enforcement justify subjecting an individual to any
significant intrusion beyond that sanctioned in Terry, including

16
either arrest or the need to answer questions that the
individual does not want to answer in order to avoid arrest
or end a detention.
Kolender, 461 U.S. at 365, 369 n.7 (Brennan, J ., concurring) (emphasis
added). The Kolender majority was also troubled by the constitutional
implications of the identification statute in that case, which could require a
Terry detainee, under threat of arrest, to answer a series of questions until
the officer is satisfied that the identification is reliable. Kolender, 461 U.S.
at 359 (invalidating statute as unconstitutionally vague; noting Fifth
Amendment concerns but declining to reach Fourth Amendment issue).
Thus, any of a detainees constitutionally protected behavior that
could be considered lack of cooperation, in itself, cannot justify extending
the duration of a checkpoint detention, because such an assertion of rights
does not raise reasonable suspicion of criminal activity that would justify
further detention. See United States v. Johnson, 620 F.3d 685, 694 (6th Cir.
2010) (We seriously doubt the wisdom of labeling reasonably suspicious
the proper exercise of ones constitutional rights.).
In addition, a travelers exercise of his rights does not justify a
determination that any delay or lengthening of the duration of the detention
is the travelers fault regardless of the officers diligence in conducting
their immigration inspection. The district courts reliance on United States v.

17
Sharpe, 470 U.S. 675 (1985), on this point is misplaced, and does not justify
blaming the extended detention on Mr. Rynearson. (ROA.486). The
Supreme Court in Sharpe held that an extended Terry detention was justified
because there was no evidence that the officers were dilatory in their
investigation and any delay in the case was attributable almost entirely to
the evasive actions of Savage, who sought to elude the police as Sharpe
moved his Pontiac to the side of the road. Id. at 687-88.
Sharpe thus did not present a case of a detainee who asserted his
constitutional rights not to cooperate or answer questions, but involved a
suspect who fled recklessly when signaled to pull over, which in itself
provides reasonable suspicion of criminal activity.
3
See Sharpe, 470 U.S. at
678, 688 n.6 (after police officers signaled both vehicles to stop, the pickup
truck cut between the Pontiac and Thrashers patrol car, nearly hitting the
patrol car, and continued down the highway, requiring the officers to split
up and lose contact with each other).
Thus Sharpe does not control here. If any level of lack of
cooperation or verbal opposition could justify an extended detention, only

3
See, e.g., United States v. Brigoni-Ponce, 422 U.S. 873, 885 (1975) (erratic
driving or obvious attempts to evade officers can support a reasonable suspicion
to stop a vehicle); Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000) (Headlong
flight is the consummate act of evasion and can be the basis of reasonable
suspicion).


18
travelers who are fully compliant and cooperative and answer all questions
would be allowed to have the benefit of the constitutional requirement that
immigration checkpoint stops consist of only a brief question or two. See
United States v. Portillo-Aguirre, 311 F.3d 647, 652 (5th Cir. 2002) (holding
that because the principal protection of Fourth Amendment interests at
checkpoints lies in appropriate limitations on the scope of the stop . . . any
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.). But the Fourth Amendment does not protect only meek
and compliant citizens.
This Circuit has recognized that a detention may be of excessively
long duration even though the officers have not completed and continue to
pursue investigation of the matters justifying its initiation. United States v.
Shabazz, 993 F.2d 431, 437 (5th Cir. 1993) A prolonged investigative
detention may be tantamount to a de facto arrest, a more intrusive custodial
state which must be based on probable cause rather than mere reasonable
suspicion. Id.
In sum, the Fourth Amendments tight limitations on the conduct of
government agents at suspicionless checkpoints are not loosened by a
citizens decision to stand on his rights. The permissible duration of an

19
immigration checkpoint stop is the time reasonably necessary to determine
the citizenship status of the persons stopped. This duration is brief. United
States v. Garcia-Garcia, 319 F.3d 726, 729 (5th Cir. 2003) (citations
omitted). Any 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. Id. During the brief permissible duration of an
investigatory stop, [i]f the officer does not learn facts rising to the level of
probable cause, the individual must be allowed to go on his way. Wardlow,
528 U.S. at 126.
Delay and the extension of the length of a detention due to the officers
pushing back against a detainees exercise of his constitutional rights are to
be laid at the feet of the government, not the detainee. See Charrington, 285
F. Supp. 2d at 1069 (If ones refusal to cooperate with law enforcement
were enough to justify prolonged detention . . . the strictures of the Fourth
Amendment, would mean little to nothing.). Mr. Rynearson does not bear
the burden of justifying his refusal to allow police to invade his privacy; it is
rather the government official who must meet the constitutional
requirements before he can encroach upon an individuals privacy. Karnes,
62 F.3d at 497.

20
CONCLUSION
For the reasons stated above, Amicus Curiae Texas Civil Rights
Project urges this Court to recognize the well-established law that a detainee
at an immigration checkpoint has a Fourth Amendment right to decline to
cooperate with Border Patrol agents or respond to their questions, and that
the Fourth Amendment does not permit a detainee to be penalized for any
such assertion of rights, nor does such assertion of rights justify the
extension of a checkpoint stop beyond the brief and nonintrusive detention
contemplated by Martinez-Fuerte. Amicus Curiae Texas Civil Rights Project
prays that the judgment of the district court be reversed.

March 7, 2014
Respectfully submitted,

Amy C. Eikel
KING & SPALDING LLP
Telephone: 713- 751-3200
Fax: 713-751-3290
Email: aeikel@kslaw.com
Attorney for Amicus Curiae
Texas Civil Rights Project


21
The foregoing brief is in 14-point Times New Roman proportional
font with footnotes in 13-point Times New Roman proportional font, and
contains 5,199 words, and thus complies with the type-volume limitation of
Rules 32(a)(7)(B) and 29(d).

Amy C. Eikel

March 7, 2014

22
I hereby certify that, on March 7, 2014, I served the foregoing brief
upon the following counsel of record by filing a copy of the document with
the Clerk through the Courts electronic docketing system, and by sending
hard copies of the brief via UPS to:
Harold Edwin Brown, J r.
U.S. ATTORNEYS OFFICE
Western District of Texas
601 N.W. Loop 410, Suite 600
San Antonio, TX 78216-5512
harold.brown@usdoj.gov

Steve I. Frank
U.S. DEPARTMENT OF J USTICE
Civil Division, Appellate Staff
Room 7245
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001
steven.frank@usdoj.gov

J avier N. Maldonado
LAW OFFICE OF J AVIER N. MALDONADO, PC
8918 Tesoro Dr., Ste. 575
jmaldonado.law@gmail.com

Amy C. Eikel

____________________________________________________

No. 13-51114

RICHARD RYNEARSON,

v.

UNITED STATES OF AMERICA; AGENT LANDS, BORDER PATROL AGENT,
INDIVIDUALLY; RAUL PEREZ, BORDER PATROL AGENT INDIVIDUALLY,

Defendants-Appellees.

JUDGE ALIA MOSES

RESPONSE BRIEF FOR THE APPELLEES

STUART F. DELERY
Assistant Attorney General
ROBERT PITMAN
United States Attorney
MARK B. STERN
/S/ STEVE FRANK
STEVE FRANK
(202) 514-4820
Attorneys, Appellate Staff
Civil Division, Room 7245
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington, D.C. 20530
____________________________________________________________________

STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Fifth Circuit Rule 28.2.3, appellees do not request oral
argument. Disposition of this case involves the application of undisputed facts to
settled law. The government, however, is prepared to present argument if the
Court determines it would be of assistance.
TABLE OF CONTENTS

STATEMENT OF JURISDICTION......................................................... 1

STATEMENT OF THE ISSUES ............................................................. 2

STATEMENT OF THE CASE ................................................................. 3

A. Statement of Facts ................................................................. 3

B. District Court Proceedings..................................................... 6

STANDARD OF REVIEW ....................................................................... 8

SUMMARY OF ARGUMENT .................................................................. 9

ARGUMENT .......................................................................................... 12

I. PLAINTIFF FAILED TO DEMONSTRATE THE
VIOLATION OF A CLEARLY ESTABLISHED
CONSTITUTIONAL RIGHT ............................................... 12

A. The Border Patrol Agents Did Not Violate
Plaintiffs Constitutional Rights Under the
Fourth Amendment .................................................... 13

B. Plaintiff Failed to Demonstrate That Any
Violation of His Constitutional Rights Was
Clearly Established .................................................. 24

C. Alternatively, Border Patrol Agents Had
Reasonable Suspicion To Detain Plaintiff ............... 25

i


II. THE DISTRICT COURT DID NOT ABUSE
ITS DISCRETION IN DENYING PLAINTIFFS
MOTION FOR A STAY PENDING DISCOVERY............... 27

CONCLUSION....................................................................................... 29



ii


Cases: Page

Anderson v. Creighton, 483 U.S. 635 (1987) ............................................... 24

Ashcroft v. al-Kidd, - - U.S. - -, 131 S.Ct. 2074 (2011) ...........................12, 24

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 338 (1971) ............. 2, 9

Brazos Valley Coalition for Life v. City of Bryan, 421 F.3d 314
(5th Cir. 2005) .................................................................................. 9, 29

Brumfield v. Hollins, 551 F.3d 322 (5th Cir. 2008) ....................................... 12

Carnaby v. City of Houston, 636 F.3d 183 (5th Cir. 2011) ................................8

Freeman v. Gore, 483 F.3d 404 (5th Cir. 2007) .................................... 8, 13, 24

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ................................................... 12

Hilbel v. Sixth Judicial Dist. Ct. of Nev., 542 U.S. 177 (2004) ......................... 22

Illinois v. Wardlow, 528 U.S. 119 (2000) ..................................................... 23

Mace v. City of Palestine, 333 F.3d 621 (5th Cir.2003) .............................12, 13

McClendon v. City of Columbia, 305 F.3d 314 (5th Cir. 2002), cert. denied,
537 U.S. 1232 (2003) .........................................................................11, 27

Mitchell v. Forsyth, 472 U.S. 511 (1985)................................................13, 28

Mollica v. Volker, 229 F.3d 366 (2d Cir. 2000) ............................................. 21

Pearson v. Callahan, 555 U.S. 223 (2009).................................................... 13

Pennsylvania v. Mimms, 434 U.S. 106 (1977) ............................................... 21

Price v. Roark, 256 F.3d 364 (5th Cir. 2001) ........................................... 13-14
iii

Samson v. California, 547 U.S. 843 (2006) ................................................... 16

Saucier v. Katz, 533 U.S. 194 (2001) ........................................................... 13

Scott v. Harris, 550 U.S. 372 (2007) ............................................................. 8

Terry v. Ohio, 392 U.S. 1 (1968) ................................................. 10, 22, 23, 24

Tubos de Acero de Mexico, S.A. v. Am. Int'l Inv. Corp., Inc., 292 F.3d 471
(5th Cir. 2002) .........................................................................................8

United States v. Brigham, 382 F.3d 500 (5th Cir. 2004).................................. 20

United States v. Brigoni-Ponce, 422 U.S. 873 (1975) ......................... 10, 14, 23

United States v. Ellis, 330 F.3d 677 (5th Cir. 2003) ....................................... 24

United States v. Garcia-Garcia, 319 F.3d 726 (5th Cir. 2003) ......................... 14

United States v. Hinojosa-Echavarri, 250 Fed.Appx. 109 (5th Cir. 2007) ......... 26

United States v. Jaime, 473 F.3d 178 (5th Cir. 2006) ..................................... 28

United States v. Lopez, 428 Fed.Appx. 376 (5th Cir. 2011) ............................. 26

United States v. Ludlow, 992 F.2d 260 (10th Cir. 1993)................................. 26

United States v. Machuca-Barrera, 261 F.3d 425 (5th Cir. 2001) ......... 15, 16, 25

United States v. Martinez-Fuerte, 428 U.S. 543 (1976) .................. 14, 15, 21, 23

United States v. Scroggins, 599 F.3d 433 (5th Cir. 2010) ................................ 16

United States v. Shabazz, 993 F.2d 431 (5th Cir. 1993) .................................. 23

United States v. Sharpe, 470 U.S. 675 (1985)...........................................16, 18

United States v. Ventura, 447 F.3d 375 (5th Cir. 2006)....................... 16, 18, 25

Whren v. United States, 517 U.S. 806 (1996) ................................................ 28
iv


Constitution:

Fourth Amendment ....................................................... 3, 9, 13, 15, 18, 23, 25
Fifth Amendment ........................................................................................7
Sixth Amendment .......................................................................................7
Fourteenth Amendment................................................................................7

Statutes:

Federal Tort Claims Act:

28 U.S.C. 2671 et seq,.........................................................................6

28 U.S.C. 1291.........................................................................................2
28 U.S.C. 1331.........................................................................................1

Rules:

Fed. R. App. P. 4(a)(1)(B) ............................................................................2

Miscellaneous:

Border Patrol Checkpoints Foiled by Drivers Asserting Their Rights,
Huffington Post, March 1, 2013,
checkpoints_n_2789592) .................................................................. 22

Plaintiff's Video of March 18, 2010 Incident:

https://www.youtube.com/watch?feature=player_embedded&v=4BId1f8
WG2s. ....................................................................................................... 9

v


No. 13-51114

RICHARD RYNEARSON,

v.

UNITED STATES OF AMERICA; AGENT LANDS, BORDER PATROL
AGENT, INDIVIDUALLY; RAUL PEREZ, BORDER PATROL AGENT
INDIVIDUALLY,

Defendants-Appellees.

JUDGE ALIA MOSES

RESPONSE BRIEF FOR THE APPELLEES

STATEMENT OF JURISDICTION
Plaintiff invoked the jurisdiction of the district court pursuant to
28 U.S.C. 1331. The district court entered final judgment in favor of
the government on September 30, 2013, disposing of all claims as to all
parties. Plaintiff filed a timely notice of appeal on November 26, 2013.
See Fed. R. App. P. 4(a)(1)(B). This Court has jurisdiction under 28
U.S.C. 1291.
STATEMENT OF THE ISSUES
In March, 2010, plaintiff, a Major in the United States Air Force,
entered an immigration checkpoint near Uvalde, Texas, while traveling
from his duty station in Del Rio, Texas to his home in San Antonio,
Texas. This routine check, which normally takes several minutes,
lasted thirty-four minutes. The district court found that the length of
the check resulted from plaintiffs refusal to lower his window, properly
present identification papers, his argumentative and evasive responses
to questions, and other conduct that unduly delayed the immigration
check.
Plaintiff brought this lawsuit alleging, inter alia, that he was
unlawfully detained and seeking damages against the Border Patrol
agents he encountered in their individual capacities under Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. 338 (1971) (Bivens). The
district court granted the governments motion to dismiss plaintiffs
Bivens claim on qualified immunity grounds. The questions raised on
appeal are
- 2 -

1. Whether defendants are entitled to qualified immunity because
plaintiff failed to demonstrate the violation of a clearly established
constitutional right under the Fourth Amendment.
2. Whether the district court abused its discretion in denying
plaintiffs motion for a stay of proceedings in order to conduct discovery.
STATEMENT OF THE CASE
A. Statement of Facts.
Plaintiff, an officer in the United States Air Force, was stationed
at Laughlin Air Force Base, near Del Rio, Texas. He travelled
frequently between Laughlin and his home in San Antonio. This
required him to make stops at the immigration checkpoint station near
Uvalde. ROA 352.
On March 18, 2010, plaintiff approached the checkpoint in a two-
door vehicle with his drivers side window slightly cracked. Border
Patrol Agent Justin Lands asked plaintiff if the vehicle belonged to
plaintiff who responded yes. Because of the noise from traffic at the
checkpoint, Agent Lands asked plaintiff if he could lower his window
and plaintiff rolled his window down a little further. Agent Lands
directed plaintiff to the secondary inspection area, noting to plaintiff the
- 3 -

heavy traffic behind plaintiff in the checkpoint lane. This initial
interaction lasted mere seconds. ROA 470.
Plaintiff proceeded to the secondary inspection area but rolled up
his window. Agent Lands approached and asked plaintiff to exit the
vehicle. Plaintiff refused and through the closed window, questioned
Agent Lands as to the reason for the request. Agent Lands explained
that the traffic noise made it difficult to hear, and asked plaintiff
several times to lower his window. Plaintiff refused and repeatedly
asked Agent Lands if he was being detained and, if so, on what grounds.
When plaintiff persisted in challenging Agent Lands authority, Agent
Lands momentarily walked away from the vehicle. At no time did
Border Patrol agents request or seek to search plaintiffs vehicle. ROA
470-71.
During Agent Lands absence, plaintiff initiated several phone
calls, including one to the San Antonio office of the FBI, claiming that
the Border Patrol Agents did not have reasonable suspicion to search
his vehicle, that he did not want to lower his window, and that he felt
threatened by the agents. ROA 471.
- 4 -

After Lands returned, and approximately ten minutes after Lands
first query, plaintiff slightly lowered his window and informed Lands
that, according to the FBI, the agents must have reasonable suspicion
before they can conduct a search of a vehicle. Plaintiff continued his
discussion as to the legal standards required by Border Patrol agents to
detain a person at a checkpoint. Agent Lands asked plaintiff if he were
a United States citizen and plaintiff responded yes. ROA 471.
Plaintiff persisted in challenging Agent Lands reasons for his
detention and, therefore, Agent Lands summons a supervisor to discuss
the situation with plaintiff. As Lands walked away, plaintiff placed two
passports against the closed drivers side window. Arriving at the
scene, Supervisory Border Patrol Agent Raul Perez asked for the
identity of plaintiffs commanding officer. Plaintiff refused to provide
his employment information. Agent Perez said he would validate the
passport information and left the secondary area. ROA 472.
Plaintiff then placed multiple phone calls, including one to the
Border Patrol headquarters in Washington, D.C. Agent Perez returned
and advised plaintiff that he was going to call plaintiffs superiors and
plaintiff responded okay. ROA 472.
- 5 -

Agent Perez returned the passports to plaintiffs approximately
thirteen minutes later and informed plaintiff that he was free to go.
Agent Perez explained to plaintiff that cooperating with the agents next
time would facilitate the checkpoint procedure. He reminded plaintiff
that the checkpoint was extremely noisy due to its proximity to the
highway, and explained that physically handing the documents to the
agents would speed up with the process since the agents must verify the
authenticity of the documents. ROA 472-73.
The entire stop lasted approximately thirty-four minutes.
Plaintiff never exited his vehicle and no searches were conducted.
B. District Court Proceedings.
On September 14, 2010, plaintiff submitted an administrative
claim to the U.S. Customs and Border Protection, pursuant to the
Federal Tort Claims Act, 28 U.S.C. 2671 et seq., seeking $500,000.00
in damages that allegedly resulted from the checkpoint stop. ROA 473.
The agency denied plaintiffs claim on January 7, 2011. ROA 473.
Having exhausted his administrative remedies, plaintiff filed this
action on March 16, 2012. ROA 7.
- 6 -

Plaintiffs first amended complaint alleged FTCA claims against
the United States based on negligence, false arrest and imprisonment,
intentional infliction of emotional distress, and violation of rights under
the Fourth, Fifth, Sixth, and Fourteenth Amendments. ROA 171.
Plaintiff also asserted Bivens claims against Agents Lands and Perez
alleging violations of his Fourth Amendment rights. ROA 182.
The district court disposed of plaintiffs claims on motions to
dismiss and/or summary judgment. ROA 473-75. Plaintiffs appeal is
limited to his Bivens action against Agents Lands and Perez in their
individual capacities, which the court dismissed on qualified immunity
grounds. ROA 469, 493. The court held that plaintiff failed to satisfy
his burden of showing that Agent Lands or Perez subjected him to an
unreasonable seizure. ROA 482. The court rejected plaintiffs
allegation that he had been subjected to an unwarranted detention,
finding that plaintiffs own actions, and not the lack of diligence on the
part of [the agents] was the sole reason for any delay in determining
immigration status. ROA 484.
- 7 -

The court also denied plaintiffs motion for a stay of proceedings
pending discovery, and entered final judgment in favor of the
government. ROA 492, 494.
STANDARD OF REVIEW
This court reviews de novo the district court's resolution of legal
issues on a motion for summary judgment on the basis of qualified
immunity. Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007). In
reviewing a motion for summary judgment, this Court views the facts
and inferences to be drawn therefrom in the light most favorable to the
non-moving party. Tubos de Acero de Mexico, S.A. v. Am. Int'l Inv.
Corp., Inc., 292 F.3d 471, 478 (5th Cir. 2002). When there is video
evidence available in the record, the court is not bound to adopt the
nonmoving partys version of the facts if it is contradicted by the record,
but rather should view[ ] the facts in the light depicted by the
videotape. Scott v. Harris, 550 U.S. 372, 381 (2007); see also Carnaby
v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011).
1

1
A video of the incident in question, taken by plaintiff, was attached as
Exhibit D to the governments motion to dismiss. ROA 335. It was
posted by plaintiff on the internet. See
- 8 -

Continued on next page.
This Court reviews a district courts decision to stay discovery
pending resolution of a dispositive motion for an abuse of discretion. See
Brazos Valley Coalition for Life v. City of Bryan, 421 F.3d 314, 327 (5th
Cir. 2005).
SUMMARY OF ARGUMENT
1. The defendant Border Patrol Agents are entitled to qualified
immunity in this Bivens action because they did not violate plaintiffs
constitutional rights, much less any clearly-established constitutional
right.
It is not disputed that the agents properly stopped plaintiff at the
border checkpoint. And at no point did the agents search either
plaintiff or his car.
Instead, plaintiff complains of the overall duration of his stop,
contending that the thirty-four minute detention violated his Fourth
Amendment rights. The district court properly concluded that any
delay resulted from plaintiffs own actions. The court relied on the
undisputed facts that plaintiff refused to roll down his window to
https://www.youtube.com/watch?feature=player_embedded&v=4BId1f8
WG2s.
- 9 -

respond to questions from Border Patrol agents; that he debated agents
on the legal standard for detaining him; that he refused to provide
agents with proper identification in a manner that would allow the
agents to verify his identification; and that he was generally non-
cooperative, argumentative, and evasive. Had plaintiff not conducted
himself in this manner, his immigration stop would have lasted only the
routine two or three minutes that such stops normally consume.
2. Plaintiff mistakenly contends that an individual has a right to
refuse cooperation at an immigration checkpoint. See Plaintiffs Brief
(Pl. Br.) at 19. See id. at 34 (an individual may stand on his rights
not to * * * produce identification , or answer questions). In support of
this proposition, plaintiff cites to case law applying Terry v. Ohio, 392
U.S. 1 (1968) and its progeny, none of which concerns a stop at a border
checkpoint, and none of which suggests that an individual at an
immigration checkpoint may remain silent and refuse to cooperate
with Border Patrol agents. Indeed, the Supreme Court has made clear
that Border Patrol may inquire into the citizenship status of vehicle
occupants at immigration checkpoints. See United States v. Brigoni-
Ponce, 422 U.S. 873, 878 (1975) ([a]ll that is required of the vehicles
- 10 -

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).
3. The district court also correctly concluded, in the alternative,
that reasonable suspicion developed at the checkpoint as a result of
[plaintiffs] action so as to warrant a prolonged detention. ROA 485.
Behavior similar to plaintiffs in this case has been found to support a
finding of reasonable suspicion of criminal activity.
4. Finally, the district court did not abuse its discretion in
denying plaintiffs motion for a stay pending discovery. Qualified
immunity is intended to give government officials a right not merely to
avoid standing trial, but also to avoid the burdens of such pretrial
matters as discovery. McClendon v. City of Columbia, 305 F.3d 314,
323 (5
th
Cir. 2002), cert. denied, 537 U.S. 1232 (2003) (citation omitted).
Plaintiff sought discovery on a host of policy issues, none of which
was material to the disposition of the governments motion since
plaintiff cited to no authority stating that the conduct of the Border
Patrol agents here with respect to the matters on which he sought
discovery was impermissible. Discovery into undisputed facts which
- 11 -

were not relevant to the outcome of this action was neither warranted
nor permissible.
ARGUMENT
I. PLAINTIFF FAILED TO DEMONSTRATE THE
VIOLATION OF A CLEARLY ESTABLISHED
CONSTITUTIONAL RIGHT.

Qualified immunity protects officers from suit unless their
conduct violates a clearly established constitutional right. Mace v. City
of Palestine, 333 F.3d 621, 623 (5th Cir.2003). See Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). Once the defendant raises the qualified
immunity defense, the burden shifts to the plaintiff to rebut this
defense by establishing that the officials allegedly wrongful conduct
violated clearly established law. Brumfield v. Hollins, 551 F.3d 322,
326 (5th Cir. 2008).
Qualified immunity gives government officials breathing room to
make reasonable but mistaken judgments about open legal questions
[and] protects all but the plainly incompetent or those who knowingly
violate the law. Ashcroft v. al-Kidd, - - U.S. - -, 131 S.Ct. 2074, 2085
(2011) (internal quotation marks omitted). Qualified immunity is
- 12 -

immunity from suit, not merely an affirmative defense to liability. See
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
This court applies a two-step analysis to determine whether a
defendant is entitled to summary judgment on the basis of qualified
immunity. Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007). First,
the Court must determine whether, viewing the summary judgment
evidence in the light most favorable to the plaintiff, the defendant
violated the plaintiff's constitutional rights. Id. If so, we next consider
whether the defendants actions were objectively unreasonable in light
of clearly established law at the time of the conduct in question. Id. at
41011. See Saucier v. Katz, 533 U.S. 194 (2001); Pearson v. Callahan,
555 U.S. 223, 236 (2009). A court may begin its analysis with either
prong, but if the plaintiff does not prove a constitutional violation, the
inquiry immediately ends. See Pearson, 555 U.S. at 236; Mace, 333
F.3d at 623.
A. The Border Patrol Agents Did Not Violate Plaintiffs
Constitutional Rights Under the Fourth Amendment.

1. The district court correctly held that plaintiff failed to
demonstrate that Border Patrol agents violated plaintiffs constitutional
rights under the Fourth Amendment. ROA 479-487. See Price v.
- 13 -

Roark, 256 F.3d 364, 369 (5
th
Cir. 2001) ([i]f the allegations do not
establish the violation of a constitutional right, the officer is entitled to
qualified immunity).
Plaintiff does not challenge his initial stop at the checkpoint. The
Supreme Court and this Court have long recognized that stops for brief
questioning routinely conducted at permanent checkpoints are
consistent with the Fourth Amendment. United States v. Martinez-
Fuerte, 428 U.S. 543, 556 (1976). See United States v. Garcia-Garcia,
319 F.3d 726, 729 (5
th
Cir. 2003) (the purpose of verifying immigration
status is constitutionally sufficient to support stopping all vehicles
which pass through the checkpoint, even in the absence of any
individual reasonable suspicion or probable cause * * *). The Supreme
Court has made clear that all that is required at primary or secondary
checkpoints 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.
See United States v. Brigoni-Ponce, 422 U.S. 873, 878 (1975).
Plaintiff also does not appear to challenge the constitutionality of
his referral to secondary inspection. Any such challenge would be
without merit because it is well-settled that a referral to secondary
- 14 -

inspection to conduct a slightly longer immigration inspection is
constitutionally permissible, and requires no additional facts to justify
the referral. See Martinez-Fuetre, 428 U.S. at 562. A Border Patrol
agent is not required to provide an explanation for being referred to
secondary inspection and may refer one to the secondary checkpoint for
any reason or no reason. See United States v. Machuca-Barrera, 261
F.3d 425, 435, n.32 (5
th
Cir. 2001). In this case, however, Agent Lands
explained that he was referring plaintiff to the secondary inspection
lane because of the long line of traffic at the primary checkpoint. ROA
482.
2. Plaintiffs primary claim on appeal challenges the overall
duration of his stop, contending that the thirty-four minute detention
violated his Fourth Amendment rights. Plaintiffs argument is contrary
to settled law. The permissible duration of an immigrant checkpoint
stop is * * * the time reasonably necessary to determine the citizenship
status of the persons stopped, and includes the time necessary to
ascertain the number and identify of the occupants of the vehicle,
inquire about citizenship status, request identification or other proof of
- 15 -

citizenship. United States v. Ventura, 447 F.3d 375, 378 (5
th
Cir. 2006)
(emphasis added). See Machuca-Barrera, 261 F.3d at 433.
Although a stop at an immigration checkpoint is generally brief,
the reasonableness of any particular stop must be evaluated using
common sense and ordinary human experience rather than rigid
criteria. See United States v. Sharpe, 470 U.S. 675, 685 (1985). Courts
are cautioned to avoid second guessing an officers chosen method of
investigation. Id. at 686.
Applying these fundamental principles here, the district court
concluded that plaintiff has failed to satisfy his burden under the
quali[fied] immunity analysis because he cannot show that Agent Lands
or Agent Perez subjected him to an reasonable seizure. ROA 482.
Because of his own conduct at the checkpoint, plaintiff was detained no
longer than the time reasonably necessary to determine the citizenship
status of the persons stopped. Ventura, 447 at 378.
The district court properly looked at the totality of the
circumstances surrounding the incident in question. See Samson v.
California, 547 U.S. 843, 849 (2006); United States v. Scroggins, 599
F.3d 433, 441 (5
th
Cir. 2010). Doing so, the court found that the length
- 16 -

of the stop resulted solely from plaintiffs own actions. ROA 484. In
reaching this conclusion, the district court view[ed] the undisputed
facts in the light most favorable to the plaintiff (ROA 482), and relied
on the following undisputed facts.
When he first spoke with plaintiff, Agent Lands told him that he
had difficulty in hearing him through the window, which was slightly
cracked during the primary inspection and was completely closed for
a period of time during secondary inspection. ROA 482. Plaintiffs
refusal to open his window to permit the normal border inquiry to
proceed, protracted the checkpoint process. When Agent Lands did
have an opportunity to ask for identification, plaintiff refused to hand
him his license or military identification, but, instead, pressed them up
again the glass, preventing Agent Lands from properly determining
their authenticity. ROA 484-85.
As the stop continued, plaintiff remained combative, arguing
with Agent Lands about the appropriate legal standard for searches
and seizures, notwithstanding the fact that the agents searched neither
plaintiff nor his vehicle. ROA 485. Delays attributable to the evasive
actions of an individual justify the extension of the detention in order to
- 17 -

address the challenges presented by the individuals conduct. See
Sharpe, 470 U.S. at 688.
Unable to ascertain plaintiffs status, Agent Lands summoned a
supervisor to the scene. This eminently reasonable action did not
infringe on plaintiffs Fourth Amendment interests, and plaintiff offers
no support for his insistence to the contrary.
Plaintiff similarly provides no support for his claim that
Supervisory Agent Perez violated his Fourth Amendment rights.
Because plaintiff chose to rely on his military status, Agent Perez
decided to contact plaintiffs Commanding Officer in order to confirm
his military status. This took approximately ten minutes, time that
could have been completely avoided had plaintiff simply provided
identification at the outset.
In short, the district court correctly concluded that plaintiff was
detained no longer than the time reasonably necessary to determine
the citizenship status of the persons stopped. Ventura, 447 at 378. If
that time was somewhat longer than usual, it was solely on account of
plaintiffs own refusal to cooperate with Border Patrol agents.
- 18 -

3. In his opening brief, plaintiff repeatedly complains that
[d]efendants did not even begin an immigration inquiry until eleven
minutes into the seizure. Pl. Br. at 18, 25-27. But plaintiff
acknowledges that only four minutes into the stop, Agent Lands
explained that plaintiff had to satisfy to us that youre a United States
citizen. Id. at 8. Moreover, plaintiff also concedes that he did not
crack his window until ten minutes into the detention. Id. at 9, 31.
Thus, it is apparent that at least the first ten minutes of the detention
were entirely reasonable given plaintiffs refusal to roll down his
window and communicate with Border Patrol agents in a reasonable
manner at a crowded, noisy checkpoint.
Plaintiff also challenges the last ten-fifteen minutes of his
detention during which time Border Patrol agents attempted to confirm
his identify as a member of the military. Although plaintiff initially
relied on his military status to argue that the agents should have
known that he was a United States citizen (ROA 486-87), he now argues
at length in his opening brief that it is a constitutional violation for
Border Agents to take the time to contact a supervisor with knowledge
of his military status to confirm that status. See Pl. Br. at 45-48.
- 19 -

Apparently, plaintiff would have preferred that the Border Patrol
agents had presumed his citizenship from his asserted military status
without confirming that status. But plaintiff does not have a
constitutional right to dictate the manner in which immigration checks
are conducted. The district court rightly rejected plaintiffs argument
that Border Patrol agents had more efficient means of confirming his
citizenship than contacting his Commanding Officer, pointing out that
[a]lthough [c]omputerizied license and registration checks are an
efficient means to investigate the status or a driver * * *, they need not
be pursued to the exclusion or, or in particular sequence with, other
efficient means. ROA 487 (quoting United States v. Brigham, 382 F.3d
500, 511 (5
th
Cir. 2004)). Thus, plaintiffs argument that calling the
military is not an efficient means of ascertaining citizenship status
(see Pl. Br. at 47), and that reviewing his passport would have been
quicker (id.), should be rejected. In addition, the time required to
call plaintiffs Commanding Officer was protracted by plaintiffs initial
refusal to provide the officers name.
In a similar vein, plaintiff complains that a Border Patrol Agent
may only conduct a visual inspection of a vehicle and may not ask an
- 20 -

individual to exit his vehicle. See Pl. Br. at 23 (citing Martinez-Fuerte,
428 U.S. at 558); see also id. at 38-40. Martinez, however, merely
describes a typical immigration inspection and does not hold that is the
exclusive means of conducting such a stop or that asking a person to
exit a vehicle is prohibited. A Border Agent is not constitutionally
barred from asking a driver to step out of his vehicle when traffic noise
and a drivers refusal to roll down his window, make any exchange of
information difficult. Cf. Pennsylvania v. Mimms, 434 U.S. 106, 111
(1977) (in a Terry stop, the additional intrusion of ordering driver to exit
vehicle can only be described as de minimis). See Mollica v. Volker,
229 F.3d 366 (2d Cir. 2000) (extending Mimms to checkpoint stop). In
any event, any discussion about the agents request that plaintiff exit
his vehicle is irrelevant since plaintiff concedes that the request to exit
his vehicle did not extend the stop. See Pl. Br. at 33
4. Plaintiffs argument, at bottom, is that an individual has a
right to refuse cooperation at an immigration checkpoint. Pl. Br. at
19. See id. at 34 (an individual may stand on his rights not to * * *
produce identification, or answer questions) see also id. at 35 (a
refusal to cooperate does not justify the extension of a suspicionless
- 21 -

seizure). See also Brief of Amicus, the Texas Civil Rights Project
(Amicus Br.) at 4 (arguing that [a] checkpoint detainee has a
constitutional right to refuse to cooperate with police inquiries).
2
In
short, plaintiff and Amicus contend that an individual has a
constitutional right to remain silent at an immigration checkpoint and
may merely place their identification on the inside of a closed window.
This mistaken view of the law underlies plaintiffs refusal to cooperate
with the agents that resulted in lengthening the border stop at issue.
Plaintiff and Amicus rely on Terry v. Ohio, 392 U.S. 1 (1968) and
its progeny, which delineate the constitutional boundaries of stops
based on reasonable suspicion (so called Terry stops) and note that a
detainee at a Terry stop is under no obligation to answer the questions
posed by law enforcement officers at such a stop. See Pl. Br. at 34
(citing Hilbel v. Sixth Judicial Dist. Ct. of Nev., 542 U.S. 177, 187
2
Plaintiff contends that he was one of many citizens who protest the
Border Patrols authority to seize and interrogate them at suspicionless
interior checkpoints. See Pl. Br. at 56 and n. 5 (citing Border Patrol
Checkpoints Foiled by Drivers Asserting Their Rights, Huffington Post,
March 1, 2013, http://www.huffingtonpost.com/2013/03/01/border-
patrol-checkpoints_n_2789592). A viewing of the video accompanying
this article demonstrates how immigration checkpoints can be rendered
useless when individuals act upon the mistaken belief that they need
not answer questions or otherwise cooperate with Border Patrol agents.
- 22 -

(2004); United States v. Shabazz, 993 F.2d 431, 437 (5
th
Cir. 1993)). See
also Amicus Br. at 4 (individual at a Terry stop has the right to remain
silent in the face of police questioning) (quoting Illinois v. Wardlow,
528 U.S. 119, 125 (2000)).
The Supreme Court has made entirely clear, however, that an
individual at a border checkpoint may not stand on his rights not to * *
* produce identification , or answer questions. Pl. Br. 34. The
Supreme has upheld brief immigration checkpoint detentions for the
express purpose of allowing Border Patrol agents to inquire into the
citizenship status of vehicle occupants. See Brignon-Ponce, 422 U.S. at
879 ([a]ll that is required of the vehicles 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); Martinze-Fuetre, 428
U.S. at 566 (stops for brief questioning routinely conducted at
permanent checkpoints are consistent with the Fourth Amendment).
If individuals at immigration checkpoints could simply remain silent,
and refuse to cooperate with Border Patrol agents, as plaintiff asserts,
the Supreme Court authority allowing such stops would be rendered a
nullity.
- 23 -

Amicus points out that Terry and its progeny have been used to
evaluate whether checkpoint stops are lawful in scope and duration.
Amicus Br. at 4 (citing United States v. Ellis, 330 F.3d 677, 679-80 (5
th

Cir. 2003)). These cases do not, however, suggest that an individual
detained at an immigration checkpoint may remain silent and refuse
to cooperate with Border Patrol agents, as plaintiff and Amicus assert.
B. Plaintiff Failed to Demonstrate That Any Violation of
His Constitutional Rights Was Clearly Established.

Even assuming arguendo that plaintiff could demonstrate a
constitutional violation, plaintiff has failed to satisfy the second prong
of the qualified immunity test, i.e., showing that such a constitutional
right was clearly established at the time of the incident in question.
See Freeman, 483 F.3d at 410. A right is clearly established, when
every reasonable official would have understood that what he is doing
violates that right. Ashcroft v. al-Kidd, - - U.S. - - , 131 S. Ct. 2074,
2083 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
[E]xisting precedent must [ ] place[ ] the statutory or constitutional
question beyond debate. Id. at 2083.
Plaintiff points to no such precedent and mistakenly relies on
cases arising outside the border checkpoint context. The agents had no
- 24 -

reason to believe that they were violating a clearly established
constitutional protection, even assuming that their conduct were
thought to infringe on a Fourth Amendment interest.
C. Alternatively, Border Patrol Agents Had Reasonable
Suspicion To Detain Plaintiff.

This Court has made clear that if the initial, routine questioning
[at an immigration checkpoint] generates reasonable suspicion of other
criminal activity, the stop may be lengthened to accommodate its new
justification. United States v. Machuca-Barrera, 261 F.3d at 434. For
example, illegal drug interdiction may be carried out at immigration
checkpoints, though not as the primary purpose of those checkpoints.
Ventura, 447 F.3d at 378.
As an alternative basis for detaining plaintiff other than that
discussed above, the district court also relied on the ground that
reasonable suspicion developed at the checkpoint as a result of
[plaintiffs] actions. ROA 485. In reaching this conclusion, the court
relied on the undisputed facts that plaintiff refused to roll down his
window, repeatedly challenged the agents, made multiple phone calls
while in secondary, refused to exit the vehicle, and refused to
immediately turn over his identification. ROA 485. The court found
- 25 -

that this activity raised reasonable suspicions that plaintiff might be
engaged in drug trafficking. ROA 485.
Similar behavior has been found to support a finding of reasonable
suspicion of criminal activity. ROA 485(citing, inter alia, United States
v. Ludlow, 992 F.2d 260, 264 (10
th
Cir. 1993) (holding reasonable
suspicion existed that the smell of drugs might be present where
motorist refused to roll down his window). See also United States v.
Lopez, 428 Fed.Appx. 376, 380 (5
th
Cir. 2011) (considering totality of
circumstances, reasonable suspicion existed to prolong immigration
stop based, inter aliaon individuals evasive answers to questioning);
United States v. Hinojosa-Echavarri, 250 Fed.Appx. 109, 114 (5
th
Cir.
2007) (reasonable suspicion arose upon failure to respond to questions).
Plaintiff primarily argues that the reasonable suspicion ground for
a prolonged detention was an after-the fact justification concocted by
the district court where neither agent had raised it. See Pl. Br. at 50.
However, plaintiff concedes in his opening brief that Agent Lands
declared that he had some suspicion that[plaintiff] declined to roll
down his window because of drugs in the door compartment. Pl. Br. at
7 (citing ROA 260). In the same declaration cited by plaintiff, Agent
- 26 -

Lands also states that plaintiffs behavior raised his suspicion that
plaintiff might be a decoy for drug smugglers. ROA 260. The courts
reasonable suspicion ground for finding that the detention of plaintiff
was reasonable is adequately supported by the record.
Plaintiff also argues that an individuals exercise of his rights
cannot give rise to reasonable suspicion. See Pl. Br. at 57. Here again,
plaintiff bases his argument on the mistaken premise that he has a
constitutional right to remain silent during an immigration checkpoint
detention. Id. As demonstrated above, plaintiff has no such right.
Plaintiff is thus quite wrong to contend that his refusal to cooperate was
constitutionally protected and the protected nature of his refusal
eliminates the district courts entire case for reasonable suspicion (see
Pl. Br. at 57).
II. THE DISTRICT COURT DID NOT ABUSE ITS
DISCRETION IN DENYING PLAINTIFFS MOTION
FOR A STAY PENDING DISCOVERY.

Qualified immunity is intended to give government officials a
right not merely to avoid standing trial, but also to avoid the burdens of
such pretrial matters as discovery. McClendon v. City of Columbia,
305 F.3d 314, 323 (5
th
Cir. 2002), cert. denied, 537 U.S. 1232 (2003)
- 27 -

(citation omitted). See Mitchell v. Forsyth, 472 U.S. at 526. Thus,
adjudication of qualified immunity claims should occur at the earliest
possible stage in litigation. Id. (citation omitted).
Plaintiff sought discovery on a host of agency policy issues,
including the policy of the Border Patrol with regard to requesting
individuals to exit their vehicles, roll down their windows, summon
supervisors and respond to individuals who refuse to answer questions.
ROA 297-98.
The Magistrate Judge, in recommending that plaintiffs motion for
a stay pending discovery be denied, found that most of the sought-after
discovery information involves either policy and procedure, or
Defendants subjective motivations, none of which was relevant nor
material to the governments pending motion to dismiss. ROA 404. See
Whren v. United States, 517 U.S. 806, 811 (1996) (subjective intent is
irrelevant, so long as the initial stop was legitimate); United States v.
Jaime, 473 F.3d 178, 183 (5
th
Cir. 2006) (same).
The district court correctly accepted the Magistrate Judges
recommendation and denied plaintiffs motion for a stay pending
discovery. ROA 492. It did not abuse its discretion in doing so. See
- 28 -

Brazos Valley Coalition for Life v. City of Bryan, 421 F.3d 314, 327 (5th
Cir.2005) (this Court reviews a district court's decision to stay discovery
pending resolution of a dispositive motion for an abuse of discretion).
In sum, even viewing the facts in the light most favorable to
plaintiff, the government officials in this case did not violate any clearly
established constitutional rights of plaintiff, and further discovery into
the facts here is not warranted.
CONCLUSION

For the foregoing reasons, the judgment of the district court
should be affirmed.
Respectfully submitted.
STUART F. DELERY
Assistant Attorney General
ROBERT PITMAN
United States Attorney
MARK B. STERN
/S/ STEVE FRANK
STEVE FRANK
(202) 514-4820
Attorneys, Appellate Staff
Civil Division, Room 7245
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington, D.C. 20530

- 29 -

CERTIFICATE OF COMPLIANCE WITH
FEDERAL RULE OF APPELLATE PROCEDURE 32(A)
I hereby certify that this brief complies with the requirements of
Fed. R. App. P. 32(a)(5) and (6) because it has been prepared in 14-point
Century Schoolbook, a proportionally spaced font.
I further certify that this brief complies with the type-volume
limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 5,177 words,
excluding the parts of the brief exempted under Rule 32(a)(7)(B)(iii),
according to the count of Microsoft Word.

/s/ Steve Frank
STEVE FRANK

- 30 -

I hereby certify that on May 2, 2014, I electronically filed the
foregoing brief with the Clerk of the Court for the United States Court
of Appeals for the Fifth Circuit by using the appellate CM/ECF system.
The participants in the case are registered CM/ECF users and service
will be accomplished by the appellate CM/ECF system and by email.

/S/ STEVE FRANK
STEVE FRANK

- 31 -


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Sfovon Irnnk ToI: (202) 5l4-4820
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September 2, 2014

Mr. Lyle W. Cayce, Clerk
United States Court of Appeals
For The Fifth Circuit
600 S. Maestri Place
New Orleans, LA 70130-3408

Re: Rynearson v. United States, No. 13-51114

Dear Mr. Cayce,

Pursuant to Fed. R. App. P. 28(j), the individual federal appellees submit Castro
v. Cabrera, 742 F.3d 595, 602 (5
th
Cir. 2014), where this court held that, a border
patrol agent was entitled to qualified immunity in a Bivens lawsuit where a detainee,
a United States citizen who presented facially valid documentation, was detained up
to ten hours at a port of entry. The Court cited Hernandez v. Cremer, 913 F.2d 230,
239-41 (5
th
Cir. 1990), which upheld an injunction allowing an inspecting officer
twenty-four hours to complete an investigation into the citizenship of a person who
presented documentation evidencing citizenship at a port of entry. Id. at 602, n. 17.

Counsel for the federal appellees mentioned Castro at oral argument in the
instant action to indicate that, if a ten-hour detention at the border was not a
violation of the constitution, then a thirty-four minute detention at an immigration
checkpoint, as in this case, is also not a violation of the Fourth Amendment. Of
course Castro is distinguishable as it occurred at the border where law enforcement
officers are granted greater leeway. Nevertheless, the presence of case law
providing some parameters for a constitutional stop at the border only underscores
Case: l3-5lll4 Document: 005l2754l63 Page: l Date Filed: 09/02/20l4

the complete absence of similar case law defining the limits of detention at an
immigration checkpoint. Thus, the individual defendants in this case did not
infringe clearly established constitutional rights (see Pearson v. Callahan, 555
U.S. 223, 236 (2009); Freeman v. Gore, 483 F.3d 404, 410 (5
th
Cir. 2007)), and the
district courts judgment granting the individual defendants qualified immunity
should be affirmed.

T his case was argued on September 2, 2014 before Judges Elrod,
Sout h wic k, and Reavl e y. We would appreciate it if copies of this letter could
be distributed to the panel at your earliest convenience.

Sincerely,

/s/Steve Frank
Steve Frank
Counsel for Appellees

Cc: All counsel of record (via CM/ECF)

2

Case: l3-5lll4 Document: 005l2754l63 Page: 2 Date Filed: 09/02/20l4
September 3, 2014
VIA ELECTRONIC CASE FILING
Lyle W. Cayce, Clerk
U.S. Court of Appeals for the Fifth Circuit
600 S. Maestri Place
New Orleans, LA 70130-3408
Re: Rynearson v. United States, No. 13-51114 (Argument Held on Sept. 2, 2014)
Panel: Circuit Judges Elrod, Southwick, and Reavley
Dear Mr. Cayce:
As the government acknowledges, its supplemental authority involves points of entry. It
is therefore entirely inapposite. This Court has explained that immigration checkpoints are not
the functional equivalent of the border. United States v. Machuca-Barrera, 261 F.3d 425, 431 n.
15 (5th Cir. 2001). The different border context is critical to the Bivens case cited by the
government. See Castro v. Cabrera, 742 F.3d 595, 602 n.16 (5th Cir. 2014) ([T]he Fourth
Amendments balance of reasonableness is qualitatively different at the international border than
the interior and [r]outine searches of the persons and effects of entrants are allowed without
probable cause) (quoting United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985));
compare United States v. Martinez-Fuerte, 428 U.S. 543, 567 (1976) ([S]tops for brief
questioning routinely conducted at permanent checkpoints are consistent with the Fourth
Amendment, but any further detention must be based on consent or probable cause.). The
governments citation of Hernandez v. Cramer, 913 F.2d 230 (5th Cir. 1990), is even more inapt,
as it did not involve any Fourth Amendment claim, but rather was the governments appeal in a
case addressing procedures required under the Due Process Clause before the government could
exclude an American citizen from re-entry. Id. at 237-39.
Nor is there a complete absence of similar case law addressing immigration
checkpoints, as the government contends. As Mr. Rynearson argued, see Opening Br. 43-45, this
Court held that a 6-10 minute immigration checkpoint stop was unconstitutional because it was
longer than necessary to conduct the immigration inspection, which the agent in that case
testified took 3-5 minutes. United States v. Portillo-Aguirre, 311 F.3d 647, 656 (5th Cir. 2002).
Moreover, as Mr. Rynearson also contended, Reply Br. 22, this Court has explained that it has
delineated the bounds of immigration stops by applying our long-standing jurisprudence
regarding stops based on reasonable suspicionso-called Terry stops. United States v. Ellis,
330 F.3d 677, 679-80 (5th Cir. 2003). Accordingly, the Terry cases cited by Mr. Rynearson, e.g.,
Opening Br. 24, 45-46, also provide fair warning regarding the constitutional limits on
immigration checkpoint detentions.
Sincerely,
s/Javier N. Maldonado
Javier N. Maldonado
cc: All counsel of record (via CM/ECF)

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