Rynearson Appeal to Fifth Circuit

7/22/2019 Rynearson Appeal to Fifth Circuit

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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


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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



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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.



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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 .........................................................................................15SUMMARY OF ARGUMENT ...............................................................................18

ARGUMENT ...........................................................................................................20

I.

STANDARD OF REVIEW ..............................................................................20

II. THE DETENTION OF RYNEARSON FOR THIRTY-FOUR MINUTESEXCEEDED 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 IrrelevantQuestioning ................................................................................................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



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A.

The Detention Cannot Be Upheld On The Basis Of Post Hoc Reasonable

Suspicion Never Articulated By Any Of The Law Enforcement OfficersInvolved .........................................................................................................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 AgentsMade 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



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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

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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

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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

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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

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JURISDICTIONAL STATEMENT

The district court exercised jurisdiction under 28 U.S.C. 1331and 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.

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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. citizensemployer to verify

military status and to speak directly with his commander.



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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).

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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

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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,

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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 cango 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.

1The video was edited only as needed to combine footage, to protect Rynearsonsidentity, and to satisfy YouTube upload requirements. ROA.355. It was filed as

Exhibit D to the Defendants summary judgment motion. ROA.271. Eventsdepicted 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.

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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

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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 thatRynearson 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.



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(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

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have a military ID. ROA.340; Video, 2/1:17. Lands said, That doesnt mean

anything. ROA.340; Video, 2/1:18. Rynearsonpointed 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

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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

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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,

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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 toprovide 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



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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

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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

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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

2The 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.

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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 continuedquestioning 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

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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

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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.



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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



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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).

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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



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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 432n.21, 433.

In total, the time necessary for this brief inquiry is at most a few minutes.

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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

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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

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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

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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

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(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

3Rynearson 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.

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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

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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

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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 st

Rynearson Appeal to Fifth Circuit

Documents

Transcript of Rynearson Appeal to Fifth Circuit