IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-40365

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

JOSE JUAN VALLEJO, JR., 

 Defendant - Appellant

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 2:17-CR-566-1

Before JONES, HO, and OLDHAM, Circuit Judges.

PER CURIAM:*

Jose Juan Vallejo appeals from the dismissal of his motion to suppress 

evidence. At an immigration checkpoint, Ernesto Cantu, a Border Patrol 

Agent, found marihuana in Vallejo’s car. Vallejo moved to suppress evidence 

of the marihuana and his subsequent statements, alleging Cantu found the 

drugs after an illegal search. After a hearing on the motion, the district court 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 14, 2019

Lyle W. Cayce

Clerk

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denied the motion and Vallejo appealed. For the following reasons, we affirm 

the district court’s decision.

Cantu stopped Vallejo at a routine immigration checkpoint near Sarita, 

Texas on August 17, 2017. Cantu asked Vallejo for identification, which 

Vallejo provided. At the suppression hearing, Cantu testified that Vallejo was 

sweating, fidgety, avoided eye contact, and otherwise seemed nervous. While 

Vallejo’s identification papers were standard, Vallejo’s behavior made Cantu 

curious. Vallejo claimed to be traveling to Corpus Christi, in a car he claimed 

belonged to a friend. Cantu asked if Vallejo would consent to allowing him to 

view the interior of the trunk. Vallejo consented. The trunk was empty, which 

Cantu found odd in light of Vallejo’s story of traveling to Corpus Christi. He 

asked Vallejo if he would consent to inspection in a secondary inspection lane,

and again, Vallejo consented. Cantu testified, and Vallejo does not dispute,

that the entire stop in the primary inspection lane lasted between forty-five 

seconds to one minute. Once in the secondary inspection lane, a canine unit 

alerted to the front bumper of the car and the officers found marihuana inside.

Vallejo objected to the search, arguing that the agents unconstitutionally 

prolonged his detention beyond the permissible purpose of the immigration 

inspection, thus violating his Fourth Amendment rights.

We review a district court’s factual findings for clear error and its legal 

conclusions de novo. United States v. Rodriguez, 702 F.3d 206, 208 (5th Cir. 

2012). Suspicionless “stops for brief questioning routinely conducted at 

permanent checkpoints are consistent with the Fourth Amendment” in the 

immigration context. United States v. Martinez-Fuerte, 428 U.S. 543, 566 

(1976). We have long held that the validity of an immigration stop turns on 

“the length of the detention, not the questions asked.” United States v. 

Machuca-Barrera, 261 F.3d 425, 432 (5th Cir. 2001). An immigration stop may 

continue for as long as is needed to ascertain the identity of a person, to 

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“inquire about citizenship status, request identification or other proof of 

citizenship, and request consent to extend the detention.” Id. at 433.

Vallejo argues that Machuca-Barrera is no longer applicable in light of 

the Supreme Court’s decision in Rodriguez v. United States, 135 S. Ct. 1609 

(2015). But this court recently held that there is no conflict between MachucaBarrera and Rodriguez. See United States v. Tello, No. 18-40347, 2019 WL 

2183348, at *4 (5th Cir. May 21, 2019). Rodriguez allows for stops of a 

“tolerable duration”—a duration that is circumscribed by the reason for the 

stop. 135 S. Ct. at 1614. As this court has recognized, “an immigration stop 

may take up to five minutes.” Tello, 2019 WL 2183348, at *5 (citing MartinezFuerte, 428 U.S. at 563).

Cantu stopped Vallejo for one minute, at the most, before Vallejo 

consented to a secondary search. Cantu articulated specific reasons for the 

further questions and then asked if Vallejo would consent to a secondary 

search, all within forty-five to sixty seconds. There is no evidence that he 

impermissibly extended the stop beyond the original purpose.

Finally, Vallejo argued that even if the stop did not violate the Fourth 

Amendment, his consent for a further search was not voluntary. This court 

has identified six factors for determining whether consent was voluntarily and 

freely given: 

(1) the voluntariness of the defendant’s custodial status; (2) the 

presence of coercive police procedures; (3) the extent and level of 

the defendant’s cooperation with the police; (4) the defendant’s 

awareness of his right to refuse to consent; (5) the defendant’s 

education and intelligence; and (6) the defendant’s belief that no 

incriminating evidence will be found. 

United States v. Olivier-Becerril, 861 F.2d 424, 426 (5th Cir. 1988).

The district court weighed these factors and concluded that factor (1) 

weighed in Vallejo’s favor, while factors (2), (3), and (5) weighed in the 

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government’s favor. The court found factors (4) and (6) to be neutral. Vallejo 

argues he was not informed that he had a right to refuse consent, but the law 

does not require Cantu to inform Vallejo of his right to refuse. See United 

States v. Lopez, 911 F.2d 1006, 1011 (5th Cir. 1990) (“[T]he lack of awareness 

of this right [to refuse consent] does not taint the voluntariness of consent.”). 

Vallejo argues his consent could not possibly have been informed and 

voluntary, because he suffers from learning disabilities and other mental 

health conditions for which he receives social security disability income. The 

district court acknowledged that Vallejo had a learning disability, but the court 

observed that Vallejo had graduated high school, had lived independently from 

his family, and had prior interactions with law enforcement that made him 

likely to appreciate the significance of his consent.

The district court’s finding of consent may be overturned on appeal only 

if clearly erroneous. Id. at 1010. “Where the judge bases a finding of consent 

on the oral testimony at a suppression hearing, the clearly erroneous standard 

is particularly strong since the judge had the opportunity to observe the 

demeanor of the witnesses.” United States v. Sutton, 850 F.2d 1083, 1086 (5th 

Cir. 1988). Vallejo does not present evidence of error, let alone clear error, in 

the district court’s order. 

Accordingly, the district court did not err in denying Vallejo’s motion to 

suppress evidence. Cantu stopped Vallejo for a permissible length of time and 

Vallejo voluntarily consented to the secondary search. Therefore, we affirm 

the district court’s denial of Vallejo’s motion to suppress. 

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