Bus encounters of the third kind: consensual with an immigration officer standing over you

Defendant was on a bus that had crossed the border and was subjected to a stop in Harlingen, Texas, where an immigration officer boarded the bus and asked to see the paperwork on anybody who was not a U.S. citizen. The court found it was a close case, but determined that the encounter was consensual and defendant would have felt free to not answer questions of the officer standing over him in the bus with a gun in a holster demanding to see his paperwork. After defendant admitted he was a Mexican citizen, the officer conducted a patdown while the defendant was still seated, and that produced drugs on his person. United States v. Mendieta-Garza, 254 Fed. Appx. 307 (5th Cir. 2007)* (unpublished):

The first encounter between Agent Sanchez and Mendieta-Garza had ended, and a reasonable person would have felt free to decline Agent Moya’s subsequent requests or to terminate the encounter. See United States v. Ricardo, 472 F.3d 277, 283-84 (5th Cir. 2006) (holding that a second encounter with an officer did not result in a seizure where the first encounter, a traffic stop, had ended and the officer had returned all of the appellant’s documents); see also United States v. Esparza-Mendoza, 386 F.3d 953, 958-59 (10th Cir. 2004) (making a second request, or even a second demand, for identification does not, by itself, implicate the Fourth Amendment). Prior to noticing a bulge under Mendieta-Garza’s shirt, Agent Moya did not apply any force, make an intimidating movement or an overwhelming show of force, or issue a threat or command. See Drayton, 536 U.S. at 204 (finding no seizure where there “was no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice”). Though Mendieta-Garza was asked twice about his immigration status, because neither interrogation was coercive or confrontational, we hold that Mendieta-Garza was not seized in violation of the Fourth Amendment. See id. at 204 (holding there was no seizure where there “was nothing coercive or confrontational” about the encounter with law enforcement).

Comment: A reasonable person would have felt free to not answer questions? Pure fiction. It is quite obvious that appellate judges have never had a cop in their face to understand what a “reasonable person” would feel.

Defendant’s stop was based on reasonable suspicion from a reliable snitch, and the defendant consented during the stop of the vehicle. United States v. Walker, 254 Fed. Appx. 300 (5th Cir. 2007)* (unpublished)