ORDER ON REMAND

W. ROYAL FURGESON, District Judge

This case comes before the Court on remand from the United States Court of Appeals for the Fifth Circuit, in an opinion issued on April 30, 2003. The issue on appeal was this Court's Order, entered on May 25, 2001, denying Defendant's motion to suppress evidence. The Fifth Circuit remanded on the basis of this Court's failure to make a particular finding of fact which, on the authority of recent Fifth Circuit case law, is critical to the constitutionality of the seizure in this case. For the reasons discussed below, the Court makes this finding of fact and consequently determines the seizure was unconstitutional. As a result, the Court is of the opinion that the May 25, 2001 Order Denying Defendants' Motions to Suppress should be VACATED with regard to Defendant Lee Arturo Chacon. In addition, the Court finds that Defendant's First Amended Motion to Suppress, filed on February 25, 2001, should be GRANTED,

PROCEDURAL AND FACTUAL BACKGROUND

The Court begins its discussion with a review of the underlying proceedings and the relevant facts pertaining to the Motion to Suppress. In its Brief on Remand, the government directs the Court to the "law of the case" doctrine, which holds that "an issue of fact or law decided on appeal may not be reexamined either by the district court on remand or by the appellate court on a subsequent appeal." The Fifth Circuit has held that the doctrine "merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power." In all respects in this matter, the Court intends to adhere to the "law of the case" doctrine as to both the facts and the law.

However, to do its job on remand, the Court must review the evidentiary record developed at the hearing on the Motion to Suppress and determine if such record provides the basis for the Court to make additional findings of fact in order to address the issues raised by the Fifth Circuit in its ruling in the appeal of this case. While the Court believes it could, if necessary, hear more evidence and thus supplement the record further to make its additional findings, the Court determines, after a review of the present record, that supplementation is not required. Based upon the present record, the Court is able to address the concerns of the Fifth Circuit, not by altering its earlier findings, but by making additional findings. As discussed further below, these additional findings of fact alter the Court's conclusions on the issue of law in this case. The Court now turns to the factual and procedural record in this case.

At approximately 10:15p.m. on November 6, 2000, an Americanos bus originating at El Paso arrived at the Sierra Blanca checkpoint. Defendant Chacon was a passenger on this bus, traveling with a juvenile companion Julio Carrillo. When the bus stopped at the secondary inspection area, Border Patrol Agent Jade A. Woodruff boarded the bus, introduced himself, and asked everyone to present personal identification.

When Agent Woodruff approached Defendant and Carrillo to inquire about their citizenship, they responded in English that they were United States citizens. Agent Woodruff testified, however, that it was not a simple "yes," but rather the conversation was awkward. Agent Woodruff then proceeded to the back of the bus and inspected the bathroom for hidden narcotics. As he was returning to the front of the bus, he was pondering why the prior conversation had been awkward. He noticed bags underneath Defendant's and Carrillo's seats and began to wonder if the awkwardness was possibly attributable to narcotics secreted in these bags. Agent Woodruff testified that "before I asked for consent of the bags, I'll talk to them a little longer and establish maybe a little more suspicion."

Agent Woodruff then returned to the passengers' seats and questioned them about where they were traveling. Both passengers confirmed that they were traveling together from El Paso to Dallas. Agent Woodruff then asked the passengers whether they had any luggage. Defendant responded that his luggage was stowed beneath the bus, and Carrillo said that he had several bags under the seat. Woodruff asked if he could search the bags under the seat, and Carrillo consented to the search. Agent Woodruff did not inform either passenger of his right to refuse the search request. The search revealed a tape-wrapped bundle hidden beneath a shirt in Carrillo's bag. After Agent Woodruff determined that the substance was marijuana, he escorted both Defendant and Carrillo off of the bus. A further search of Carrillo's bags revealed a total of nine pounds of marijuana in four bundles. No drugs were found in Chacon's bag. Agent Woodruff subsequently placed both Defendant and Carrillo under arrest.

Defendant filed his First Amended Motion to Suppress on February 15, 2001, seeking to suppress evidence obtained as a result of the detention of the bus and the search of Carrillo's bags. The Court denied that Motion in an Order entered on May 25, 2001. In that Order, this Court articulated the standard that a Border Patrol agent performing an immigration inspection may extend that seizure to investigate the possible possession of illegal narcotics, provided the agent is aware of facts and inferences that create reasonable suspicion. Under this standard, this Court found that Agent Woodruff possessed reasonable suspicion to continue the seizure.

On appeal, the Fifth Circuit noted that this Court "made no explicit finding whether Agent Woodruff had or had not completed his immigration inquiries of Chacon and Carrillo as he walked from the rear to the front of the bus (or whether the bus's immigration detention was then unduly prolonged)." The circuit court found this fact critical in determining the constitutionality of the seizure in this case. As the court sympathetically noted, however, the importance of this factor had emerged largely through Fifth Circuit case law decided after the time of this Court's initial ruling. Not insignificantly, the relevant case law involves largely identical factual scenarios arising out of this very Court.

On the basis of this authority, the Fifth Circuit remanded the case to this Court to make two factual findings: (1) whether Agent Woodruff had completed his immigration inquiries as he walked back to the front of the bus; and (2) whether the immigration detention was then unduly prolonged, The circuit court also noted that this Court failed to address Defendant's argument that Agent Woodruff lacked probable cause to arrest him solely because of his association with Carrillo. Although the Court has not taken further evidence, as noted above, it did hear oral presentations on September 12, 2003. The Court now enters its findings on the aforementioned factual issues and then discusses the application of the law in light of those findings.

DISCUSSION

I. Whether Agent Woodruff Had Completed the Immigration Inspection

In its Brief on Remand, the government states that "the Fifth Circuit strongly suggested that there was support in the factual record that Agent Woodruff's . . . follow-up questions . . . had an immigration-investigation component." The government adds that "[i]t is apparent that with the entry of such findings the Fifth Circuit will affirm Chacon's conviction." The Court, however, rejects the suggestion that the Fifth Circuit has already adopted a position on this issue, or that this Court's primary function on remand is to enter findings for the purpose of affirming its previous ruling. Rather, based on the Fifth Circuit's opinion, the Court understands that it is to thoroughly review the record and then to make its own independent findings as to the issues on remand. The Fifth Circuit has not foreordained this Court's findings; instead its opinion makes two clear points. First, this Court failed to make a finding in its initial ruling as to whether Agent Woodruff had completed his immigration inquiry before returning toward the front of the bus. Second, case law decided after this Court's initial ruling clarifies and emphasizes the importance of this fact in determining the constitutionality of the seizure.

In arguing that the immigration purpose of the stop had not ended when Agent Woodruff returned to question Defendant and Carrillo, the government relies on two statements made by the agent during the hearing on this matter. Upon cross-examination at the hearing, near the end of his testimony, Agent Woodruff testified that, as he was walking down the bus, he wondered whether he had made "a wrong decision" about immigration status, However, a full review of the record on this issue reveals these two statements to be inconsistent with Agent Woodruff's prior statements, as well as with the other evidence in this case. Prior to the aforementioned testimony, Agent Woodruff made at least five unequivocal statements to the effect that he had completed the immigration purpose of the stop. The Court excerpts the relevant portions of the testimony below:

[Direct Examination]

* * *

A: As I'm going down the aisle. I spoke with them. I recall taking a little longer with them. They were both U.S. citizens, but for some reason it took them — it was an awkward conversation with them. It seemed to take longer with them to determine their citizenship. I went ahead and went on past them. They both established to me that they were U.S. citizens.

* * *

Ct.: And you were talking to them and you established they were U.S. citizens?

A: Yes, sir.

* * *

[Cross-Examination]

Q: It is clear that you had completed your immigration inspection and were satisfied that all passengers of the bus were either citizens or in the country legally?

A: At the time I reapproached them, yes.

* * *

Q: You at least by the time you finished your immigration inspection were satisfied that Mr. Chacon was, in fact, a United States citizen?

A: Yes, ma'am.

In addition to his testimony at the hearing, Agent Woodruff's "Report of Apprehension or Seizure," which was filed shortly after the incident, contains the following statement: "Agent Woodruff performed the [immigration] inspection of the passengers and upon verifying that all passengers where either United States Citizens or in the country legally, Agent Woodruff began to make additional inquiries, primarily related to the possible possession of controlled substances or other contraband on board the bus." The Court finds these clear, unambiguous statements more probative of Agent Woodruff's state of mind than his later equivocations under cross-examination.

The Court emphasizes that it is not making a judgment as to the credibility of the agent vis-a-vis other witnesses. Rather, the Court is attempting to reconcile the agent's own inconsistent statements in light of the totality of his testimony in this case. Probably the most reliable way to achieve this goal in this case is to observe one of the great maxims of the great trial lawyers: always resist the urge to ask the one final "nail-in-the-coffin" question. The answer is never the one sought nor hoped for. The maxim was ignored in this case. The defense lawyer did a superb job of getting the answer she wanted to the crucial question stated above, not once, but five times. Yet, like many outstanding lawyers who cannot resist going for the knockout punch, she kept seeking yet one more confirmation, to the point that the witness began to equivocate, which almost always happens. After clearly testifying five times that he had finished his immigration inspection by the time he got to the back of the bus, Agent Woodruff began to backtrack as the subject was pursued several times more.

Anyone who has tried cases for any length of time (or seen them tried for any length of time) understands the phenomenon: too many questions on the same topic will inevitably lead to equivocation, as happened here. However, in almost every instance, the earlier, more unequivocal testimony is the testimony to be believed and relied upon. Such is the case here. Thus, on the basis of the overall record, the Court finds that Agent Woodruff had resolved the immigration status of Defendant, Carrillo, and all other passengers before prolonging the detention of the bus.

The government argues that the testimony cited above establishes only that Agent Woodruff had initially resolved Defendant's and Carrillo's immigration status. The government cites the portion of the Fifth Circuit's opinion which held that immigration agents are not constrained "to making an irrevocable decision, on their first encounter with bus passengers, about the passengers' immigration status." The court added that an agent "may continue to ask questions of the passengers . . . so long as he still has immigration-related motives in mind." Thus, the government argues that, when Agent Woodruff returned to make additional inquiries of Defendant and Carrillo, he had such immigration-related motives in mind.

The parties disagree as to whether this language in the Fifth Circuit's opinion establishes a subjective or objective standard for reviewing the agent's additional questioning. The government attorney did not express a clear opinion on this issue during the September 12, 2003 hearing, although in its brief, the government suggests that the Court should focus on the subjective motivation of the agent. Defendant, by contrast, argues that the agent's decision to revisit his initial immigration decision and conduct further questioning must be measured by an objective standard of "reasonableness." In reviewing the precedent from both the Supreme Court and the Fifth Circuit on this issue, the Court agrees that the agent's actions must be reasonable.

In Whren v. United States, the Supreme Court held that "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." Rather, the constitutionality of a stop turns on its "reasonableness." Later, in City of Indianapolis v. Edmond, the Court clarified that "Whren does not preclude an inquiry into programmatic purpose" for suspicionless stops, such as immigration checkpoints. The Court observed, however, that "the purpose inquiry in this context is to be conducted only at the programmatic level and is not an invitation to probe the minds of individual officers acting at the scene." Thus, after Edmond, a court is permitted to examine motive at a general level (i.e., when reviewing the overall constitutionality of a stop), but not at the individual level (i.e., when reviewing an individual officer's execution of the stop). Edmond further clarified that the decision did "nothing to alter the constitutional status" of routine border checkpoint stops.

The Fifth Circuit discussed the implications of Edmond in its ruling in United States v. Machuca-Barrera. In Machuca-Barrera, the Fifth Circuit held that, even though an immigration checkpoint stop need not be justified by reasonable suspicion, the Fourth Amendment nevertheless requires that the stop be reasonable. The Court added that:

The scope of an immigration checkpoint stop is limited to the justifying, programmatic purpose of the stop: determining the citizenship status of persons passing through the checkpoint. The permissible duration of an immigration checkpoint stop is therefore the time reasonably necessary to determine the citizenship of the persons stopped. This would include 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.

The language used by the Fifth Circuit in this case is significant and instructive. The court held not only that the justification for the stop is limited to determining citizenship status, but that the stop is also restricted to the time "reasonably necessary" to resolve this issue. Moreover, in discussing the specific actions to be taken by the agent in reasonably conducting this inquiry (i.e., ascertaining the number and identity of occupants, inquiring about citizenship status, requesting proof of citizenship, and seeking consent to extend the detention), the court further sought to circumscribe the scope of the stop in order to safeguard Fourth Amendment rights.

Following this discussion, the Fifth Circuit cautioned against "inquiry into the subjective purpose of the officer asking the questions." The court stated that the individual motives of border patrol agents are irrelevant, "Instead, we determine whether the stop objectively conforms to the limitations placed on the stop by its justifying purpose." Thus, it is clear that, while a border patrol agent may execute a suspicionless checkpoint stop for the purpose of determining immigration status, his actions in conducting the stop must still be reasonable. Nothing in the language of the Fifth Circuit's opinion in the instant case suggests that this "reasonableness" standard be abandoned.

Applying this standard to the conduct in the present case, the Court finds that Agent Woodruff's additional questioning of Defendant and Carrillo was unreasonable because it did not conform to its justifying purpose. As noted above, Agent Woodruff's report states that, after verifying the immigration status of all passengers, he "began to make additional inquiries, primarily related to the possible possession of controlled substances or other contraband on board the bus." Agent Woodruff corroborated this statement with his own testimony on direct examination at the hearing. He testified that, as he began returning to the front of the bus, he was pondering the awkward conversation with Defendant and Carrillo and saw "some bags . . . beneath the seat that they're sitting in. . . ." He then testified that, "I've been having the same problem I had in other cases where they try to deny being with each other, so I figured before I asked for consent of the bags, I'll talk to them a little longer and establish maybe a little more suspicion." This is perhaps the most revealing statement about Agent Woodruff's motivations for prolonging the detention of the bus. Agent Woodruff concedes in this statement that he sought to confirm that Defendant and Carrillo were traveling together in order to "establish maybe a little more suspicion" before seeking consent to search the bags.

On cross-examination, Agent Woodruff added:

I was trying to figure out why the conversation was awkward and I didn't know if it was because they were concealing something, is that why it was awkward, and that's when I focused on the — Well, I didn't actually focus on the luggage, because I didn't want to focus on the luggage until I ascertained they were traveling together and to the same origin, destination, but I didn't know if they were together.

This statement only further confirms Agent Woodruff's motivations. There is no suggestion in the record that the agent's concerns that Defendant and Carrillo were "concealing something" related in any way to their immigration status. By contrast, Agent Woodruff's testimony indicates that he suspected Defendant and Carrillo might be physically "concealing something" in their luggage, but he wanted to ascertain that they were traveling together before searching the luggage for contraband. Thus, Agent Woodruff's own testimony establishes that his additional questioning did not "objectively conform to the limitations placed on the stop by its justifying purpose." The agent's subsequent questioning was directed toward discovering contraband, not resolving the passengers' immigration status.

Even if the Court were to accept that Agent Woodruff had immigration-related purposes in mind, he offered little testimony as to exactly what caused him to question his initial immigration determination. He testified only that his first conversation with Defendant and Carrillo was "awkward" and "difficult." There is no specific testimony even as to what these "awkward" statements were, other than that "it wasn't a simple `yes' or `no.'" Moreover, even after this initial "awkward" questioning, Agent Woodruff was satisfied that both Defendant and Carrillo were United States citizens. He also testified that he saw bags beneath their seats. None of this testimony, nor any other evidence in the record, establishes objectively reasonable criteria for the agent to develop suspicion that Defendant had misrepresented his citizenship status in the initial inquiry. Thus, while Agent Woodruff was permitted to conduct a suspicionless stop in order to determine the citizenship status of all passengers, he exceeded the permissible scope of that stop by engaging in additional questioning of Defendant and Carrillo.

The Court finds that Agent Woodruff's further inquiries were not reasonably conducted for the limited purpose of an immigration checkpoint. Agent Woodruff completed his immigration inspection before prolonging the detention and posing additional questions to Defendant and Carrillo. Having so determined, the Court now turns to the other factors bearing on the constitutionality of the search and seizure.

II. Whether the Detention Was Unduly Prolonged

The next factual issue for which the Fifth Circuit remanded this case is whether the bus's immigration detention was unduly prolonged as a result of Agent Woodruff's additional questioning of Defendant and Carrillo. Although this issue is central to the ultimate decision on constitutionality, the Court discusses only the factual issue here and reserves the legal discussion for the following section.

The record does not contain any direct evidence regarding the precise duration of the extended detention after Agent Woodruff completed his immigration inspection. Agent Woodruff's report, however, reveals a general portrait of the events which transpired. His report states that, after finishing his immigration inspection, he began to make additional inquiries regarding contraband, "eventually approach[ing]" Defendant and Carrillo. Agent Woodruff first asked both passengers where they were traveling to, and Carrillo related that he and Defendant were traveling together to Dallas. Defendant then verified this statement. Agent Woodruff then asked the passengers whether they had luggage, and the two responded in the affirmative. Defendant informed Agent Woodruff that his bags were stored beneath the bus, and Carrillo told the agent that his bags were beneath his seat. Agent Woodruff then asked Carrillo what he had in the bags, and Carrillo informed the agent that he had clothes in them. Agent Woodruff asked Carrillo if he could see inside his bags, and Carrillo consented, pulled his bags from beneath his seat, and handed them to the agent, Agent Woodruff felt the bags and determined that they were too heavy to contain just clothes. He continued searching, and felt a hard object concealed inside a shirt. He lifted the shirt and discovered a tape-wrapped bundle. The agent inquired as to the nature of the substance and, after receiving no reply, made an incision and determined the substance to be marijuana. The agent then escorted the two passengers off of the bus and into the checkpoint.

In United States v. Portillo-Aguirre, the Fifth Circuit dealt with a nearly identical situation, involving both Agent Woodruff and this Court. In that case, "Agent Woodruff testified that he had determined the citizenship status of the bus passengers before he began to question [the defendant] about the bag underneath his seat." The circuit court stated that the issue was "whether Agent Woodruff unlawfully extended the stop beyond its permissible duration." The court then repeatedly noted the standard that "the permissible duration of an immigration stop is the time reasonably necessary to determine the citizenship status of the persons stopped." The court found that "[a]fter determining the passengers' citizenship status, however, Agent Woodruff extended the stop for an additional three to five minutes in order to investigate whether [the defendant] was carrying illegal drugs." The court concluded that even this minor extension "unquestionably exceeded" the permissible duration of the stop.

The Court finds the facts of this case indistinguishable from those of Portillo-Aguirre. Although the government argues that Agent Woodruff had not determined the citizenship issue before the additional questioning in this case, the Court has rejected that contention. In Portillo-Aguirre, the Fifth Circuit found even a short extension unjustified where the agent had already concluded the immigration purpose of the stop. The record in this case reveals a comparable extension after the completion of the agent's immigration inspection for the purpose of detecting evidence of other criminal activity. Thus, the Court finds that Agent Woodruff's additional inquiries of Defendant and Carrillo upon returning to the front of the bus unduly prolonged the immigration detention of the bus.

The Court now synthesizes these findings with the existing record to resolve the constitutionality of the search and seizure in this case.

III. Constitutionality of Search and Seizure

In United States v, Martinez-Fuerte, the Supreme Court upheld the constitutionality of suspicionless immigration checkpoints, although any further detention must be justified by consent or probable cause. In City of Indianapolis v. Edmond, the Court held unconstitutional suspicionless checkpoints created to interdict drugs, noting that the validity of a checkpoint stop depends on its "programmatic purpose," The Fifth Circuit discussed the effect of these rulings in Machuca-Barrera.

In Machuca-Barrera, the court held that "checkpoints with the primary purpose of identifying illegal immigrants are constitutional, and checkpoints with the primary purpose of interdicting illegal drugs are not." "The permissible duration of an immigration checkpoint stop is therefore the time reasonably necessary to determine the citizenship status of the persons stopped." "Of course, a Border Patrol agent may extend a stop based upon sufficient individualized suspicion." "[I]f the initial, routine questioning generates reasonable suspicion of other criminal activity, the stop may be lengthened to accommodate its new justification. Thus, an agent at an immigration stop may investigate non-immigration matters beyond the permissible length of the immigration stop if and only if the initial, lawful stop creates reasonable suspicion warranting further investigation," "Conversely, when officers detain travelers after the legitimate justification for a stop has ended, the continued detention is unreasonable."

In Portillo-Aguirre, Agent Woodruff testified to conducting an inspection procedure nearly identical to that conducted in the instant case. He testified that the defendant in that case "seemed nervous from the moment the agents boarded the bus," and that, upon returning to the front of the bus to exit, he noticed a small bag underneath the defendant's seat. Agent Woodruff testified that the defendant's rigid posture further aroused his suspicion and, acting on this suspicion, he began to question the defendant. Based on this questioning, Agent Woodruff obtained consent to search the bag, which revealed a tape-wrapped bundle of narcotics.

In reversing this Court's denial of the defendant's motion to suppress, the Fifth Circuit found that "Agent Woodruff's method is essentially an attempt to circumvent the Court's holding in Edmond by broadening (he scope of an otherwise lawful immigration seizure to include drug interdiction activity. But when the purpose of a stop switches from enforcement of immigration laws to drug interdiction, a Fourth Amendment violation occurs unless the Border Patrol agent has individualized suspicion of wrongdoing." The court added that Agent Woodruff's testimony at the suppression hearing "does not establish that the initial, routine questioning of the passengers for immigration purposes generated reasonable suspicion of criminal activity," and that a `"generic claim of nervousness' does not justify the extension of the stop."

These cases are controlling of the issue in this case. First, the method discussed in Portillo-Aguirre is the same as that employed by Agent Woodruff in the instant case. As in that case, Agent Woodruff completed his immigration inquiry before "looking for signs of narcotics trafficking." His report in this case states that, after verifying the immigration status of all passengers, he "began to make additional inquiries, primarily related to the possible possession of controlled substances or other contraband on board the bus." The record does not establish any "individualized suspicion of wrongdoing" to justify these additional inquiries.

As previously noted, Agent Woodruff's testimony regarding his initial suspicion states only that he found his first conversation with Defendant and Carrillo "awkward" and "difficult," adding that "it wasn't a simple `yes' or `no.'" No further testimony is provided to explain this "awkward" conversation. Agent Woodruff's report provides that he "noticed that both subjects appeared to be extremely nervous when he originally questioned them about their citizenship," although he ultimately "determined that they were both United States citizens."

As in Portillo-Aguirre, Agent Woodruff also testified that he later noticed bags underneath the passengers' seats. Agent Woodruff essentially conceded lacking sufficient suspicion to search the bags at that time, testifying that "I figured before I asked for consent of the bags, I'll talk to them a little longer and establish maybe a little more suspicion."

Again, the Court finds this case indistinguishable from Portillo-Aguirre in all relevant aspects. Based on the record, this Court has found that Agent Woodruff completed his immigration inspection before turning his attention to drug interdiction. His initial suspicion consisted only of the initial "awkward" conversation and the location of luggage underneath the passengers' seats. As the Fifth Circuit noted in Portillo-Aguirre, a "generic claim of nervousness" does not justify extending the duration of an immigration stop. The court also rejected the notion that the existence and location of luggage under a seat suggested that criminal activity was afoot The court held that, "[i]f such common circumstances qualified as reasonable suspicion, then most interstate travelers would be subject to prolonged detention, for virtually any item of luggage, from a handbag to a suitcase, is capable of housing illegal narcotics." On the authority of Portillo-Aguirre, then, considering the totality of the circumstances-including Agent Woodruff's modus operandi-the Court concludes that the "awkward" conversation and the position of Carrillo's luggage did not amount to reasonable suspicion of drug trafficking or any other crime.

Notwithstanding this finding, the Fifth Circuit held in United States v. Ellis that, "if a Border Patrol agent develops reasonable suspicion in the course of actually exiting the bus, that agent may extend the detention." As in Ellis, however, the agent in this case was "not merely exiting the bus," when he developed his additional suspicion. Rather, Agent Woodruff stopped to ask Defendant and Carrillo additional questions for the purpose of establishing "a little more suspicion" before seeking consent to search their luggage. While a Border Patrol agent need not "look the other way when evidence of criminal activity" is before him, he may not prolong the stop to develop reasonable suspicion after the initial justifying purpose has been accomplished. The Court finds that Agent Woodruff did not develop reasonable suspicion during the course of the "initial, routine questioning," nor in the course of "merely exiting the bus."

For the reasons discussed above, the critical findings of fact for which the Fifth Circuit remanded this case affect the constitutional character of the seizure in question. This Court initially found reasonable suspicion to justify the seizure and subsequent search. However, the Court did not consider whether this suspicion developed "before the justifying purpose of [the] checkpoint stop [had] been accomplished." The Court now answers this question in the negative and finds that the stop was unduly prolonged as a result. Thus, the Court concludes that the extended detention was an unreasonable seizure in violation of the Fourth Amendment. IV. Suppression of Evidence

Having found that the extended detention in this case violated Defendant's rights under the Fourth Amendment, the Court now revisits Defendant's Motion to Suppress. "Under the fruit of the poisonous tree doctrine, all evidence derived from the exploitation of an illegal seizure must be suppressed, unless the government shows that there was a break in the chain of events sufficient to refute the inference that the evidence was a product of the Fourth Amendment violation." Although the government does not address this issue either in its Response to Defendant's Motion to Suppress or its Brief on Remand, the Court will discuss it in the interest of thoroughness and fairness to the parties.

The record is undisputed that Carrillo ultimately consented to the search of his bags in this case. "Consent to search may, but does not necessarily, dissipate the taint of a fourth amendment violation." The issue "turns on a two-pronged inquiry: whether the consent was voluntarily given and whether it was an independent act of free will." To determine voluntariness, the Court considers: (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 consent; (5) the defendant's education and intelligence; and (6) the defendant's belief that no incriminating evidence will be found. To determine if consent is an independent act of free will, the Court considers: (1) the temporal proximity of the illegal conduct and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the initial misconduct.

Again, the Court finds the holding in Portillo-Aguirre controlling, since the factual and legal issues are nearly identical. If anything, the voluntariness finding is less compelling in this case. Defendant and Carrillo were involuntarily detained in this case. Although there do not appear to have been coercive police procedures, there is also no evidence that Carrillo was ever informed of his right to refuse consent. Carrillo's youth also weighs against a finding of voluntariness in this case. Nevertheless, even if the Court assumes consent was given voluntarily, it holds that the consent was not an independent act of free will.

First, the Court finds a close temporal proximity between the illegal conduct-the extended detention-and the consent. The illegal detention continued until Carrillo gave his consent to search his luggage. Second, no circumstances intervened between the detention and the consent, and there is no reason to think that either Carrillo or Defendant believed they were free to go during that time. Finally, the Fifth Circuit has previously found that Agent Woodruff's method of executing an immigration stop-the same method applied in this case-is inconsistent with the passengers' Fourth Amendment protection from unreasonable seizures. Agent Woodruff testified to questioning the passengers in order "to establish maybe a little more suspicion," before seeking consent to search the bags. His report stated that he "began to make additional inquiries, primarily related to the possible possession of controlled substances or other contraband on board the bus." Thus, for the same reasons discussed in Portillo-Aguirre, the Court finds that "only suppression will serve the deterrence function of the exclusionary rule." Thus, the Court holds that any consent given to the search was not valid, and the causal chain between the illegal detention and the search was not broken. Accordingly, the marijuana obtained as a result should have been suppressed.

V. Probable Cause to Arrest Defendant

Finally, the Court addresses the Fifth Circuit's reference to the Court's failure to address Defendant's argument that there was no probable cause to arrest him simply because he was traveling with a juvenile who was carrying marijuana in his baggage. Since the Court has already found the search of the luggage to be the poisonous fruit of an illegal detention, it follows a fortiori that there was no probable cause to arrest Defendant on the basis of contraband discovered through the illegal search and seizure. Nevertheless, in an abundance of caution, the Court discusses whether probable cause would exist to arrest Defendant if the search of Carrillo's bags and seizure of marijuana were, in fact, constitutional.

"The Fourth Amendment requires that an arrest, with or without a warrant, be made on probable cause. Probable cause exists when the facts available at the moment of the arrest would warrant a person of reasonable caution in the belief that an offense has been or is being committed and that the individual arrested was the guilty person." "[P]resence alone is not enough to constitute probable cause," although "presence and additional factors" may be sufficient.

In United States v. Di Re, the Supreme Court affirmed a lower court ruling that the defendant's presence in a car with two individuals possessing counterfeit instruments "did not authorize an inference of participation" in the criminal act. In this case, Agent Woodruff arrested Defendant because he "was traveling with someone smuggling marijuana." The government argues, however, that there was probable cause to arrest Defendant because: (a) Defendant was an adult, and Carrillo was a juvenile; (b) Defendant and Carrillo provided "vague and suspicious answers" to Agent Woodruff's initial inquiries; and (c) Defendant's shrugging response to the agent upon discovery of the marijuana provided "additional evidence of his knowledge and complicity."

Regarding the government's first argument, the Court agrees with Defendant that this factor bears little on the issue of probable cause. Defendant was slightly more than three years older than Carrillo, and there is no testimony by Agent Woodruff that this age difference is even physically discernible, or that it motivated his actions. Neither is there any evidence that Defendant appeared to be controlling or directing Carrillo in a way that supports an inference that Carrillo was acting as a "courier" for Defendant. Without any such evidence, the Court rejects the government's assertion that the slight age disparity between Defendant and Carrillo gave rise to probable cause to arrest Defendant.

Second, the Court rejects the government's argument that Defendant and Carrillo offered "vague and suspicious answers" to Agent Woodruff's initial inquiries. As the Court has already noted twice, Agent Woodruff testified only that their initial answers were "awkward" and "difficult," and the agent could not recall or articulate any specific statements to support this inference. Without any particular evidence regarding Defendant's or Carrillo's statements, the Court cannot deem the statements "additional factors'" which suffice to make Agent Woodruff s conduct objectively reasonable.

Finally, the Court rejects the government's argument that Defendant's shrugging in response to the agent's question following discovery of the marijuana provided "additional evidence of his knowledge and complicity." The testimony relied upon by the government appears to be simply a misstatement by Agent Woodruff at the original hearing on the Motion to Suppress. The agent's "Report of Apprehension or Seizure," filed shortly after the incident, states that "Agent Woodruff asked CARRILLO what was in the bundle and CARRILLO simply shrugged." Thus, this action by Carrillo could not have given rise to any suspicion of criminal activity by Defendant. Moreover, even if the question and response had been directed toward Defendant, a shrug (indicating Defendant's ignorance as to the contents of Carrillo's bags) is consistent with a lack of knowledge of criminal activity. Accordingly, this factor also fails to give rise to probable cause to arrest Defendant.

For the foregoing reasons, the Court finds that, apart from Defendant's presence beside Carrillo, the government did not possess sufficient "additional factors" to establish probable cause to arrest Defendant. Thus, under the "fruit of the poisonous tree" doctrine discussed above Defendant's post-arrest statement must also be suppressed. Moreover, the Court rejects the government's theory that Defendant's post-arrest statement should nevertheless be admitted under the "inevitable-discovery" exception to the exclusionary rule. For this exception to apply, "the government must, by a preponderance of the evidence, establish: (1) a reasonable probability that the contested evidence would have been discovered by lawful means in the absence of the police misconduct; and (2) that the government was actively pursuing a substantial alternate line of investigation at the time of the constitutional violation." The government has not pointed to, and the Court cannot find, any evidence in the record to establish either prong of this exception.

"[I]nevitable discovery cannot rest upon speculation . . ." Thus, the Court finds that Defendant's post-arrest statement must be suppressed.

In closing, the Court understands the difficulties encountered by border patrol agents in executing stops at immigration checkpoints. Time after time, over the last eight years, this Court has been called upon to consider the propriety of such matters. In doing so, it has been the goal of this particular Court to reject any formula which would, at one extreme, hold an agent to an unduly rigid or impractical standard or, at the other, subject bus passengers to unreasonable searches and seizures. The very word "reasonable" requires a balance to be struck between these competing concerns. Finding a middle path is the best way to do that. In this particular instance, therefore, because of the absence of suspicion required to justify an initial immigration stop, the Court finds a proper balance requires that this particular stop be invalidated in order to safeguard Fourth Amendment rights. The Court feels it has struck the appropriate balance in deeming the instant search and seizure unconstitutional.

CONCLUSION

The Fifth Circuit remanded this case to this Court to obtain additional findings of fact. The Court now finds that Agent Woodruff completed his immigration inquiries before returning to make additional inquiries of Defendant and Carrillo, The Court finds that the bus's immigration detention was unduly prolonged as a result. Thus, the Court concludes that the extended detention of the bus was an unreasonable seizure in violation of the Fourth Amendment. As a result, the search of Carrillo's luggage was poisonous fruit derived from the exploitation of an illegal seizure, which must be suppressed. The Court further holds that, even if the search of Carrillo's luggage and evidence derived therefrom were permissible, probable cause did not exist to arrest Defendant. Defendant's post-arrest statement must therefore also be suppressed.

Accordingly, it is ORDERED that this Court's May 25, 2001 Order Denying Defendants' Motions to Suppress is VACATED with regard to Defendant Lee Arturo Chacon.

It is further ORDERED that Defendant's First Amended Motion to Suppress (docket #14) is GRANTED.