Case: 19-41008 Document: 00515778709 Page: 1 Date Filed: 03/12/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED March 12, 2021 No. 19-41008 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Vernon D. Nelson, Defendant—Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. 5:18-CR-870 Before Higginbotham, Smith, and Dennis, Circuit Judges. Patrick E. Higginbotham, Circuit Judge: Vernon Nelson pleaded guilty pursuant to a conditional plea agreement to conspiracy to possess with intent to distribute 50 kilograms or more of marijuana, reserving the right to appeal the denial of his suppression motion. He claims that evidence seized from his vehicle and statements he made should have been suppressed because Border Patrol agents stopped him without reasonable suspicion and subjected him to custodial interrogation without first giving him Miranda warnings. We affirm. Case: 19-41008 Document: 00515778709 Page: 2 Date Filed: 03/12/2021 No. 19-41008 I. Around 9:55 P.M. on October 30, 2018, Vernon Nelson approached the U.S. Border Patrol Laredo North checkpoint in a tractor-trailer. The checkpoint is located north of Laredo near the 29-mile marker on Interstate Highway 35. Border Patrol Agent (BPA) Yajaira Flores asked Nelson whether he was a United States citizen and if he would consent to a scan of his tractor-trailer. Nelson answered both questions affirmatively. Nelson went to a second area, where he was met by BPA Marcus Stauffiger. Stauffiger has worked as a Border Patrol agent for over nine years, performing various duties at the Laredo North station. For two of those years, he was detailed to the Drug Enforcement Administration (DEA) where he received specialized training and investigated narcotics crimes. Agent Stauffiger scanned Nelson’s tractor-trailer using the “Vehicle and Cargo Inspection System” (VACIS), which he described in laymen’s terms as “an x-ray machine” used on commercial vehicles. From his scan of Nelson’s trailer, he observed only several bundle-shaped objects and the outline of a dolly. He initially suspected that these objects were equipment being stored by Nelson. But his assessment changed when he saw a seal on the back door of the trailer. From his experience, Agent Stauffiger knew that these seals are typically used to ensure that nothing goes missing from a cargo load during transport. If the trailer contained only equipment, there would be no need for a seal. Given these anomalies, Agent Stauffiger typically would have directed the truck to the secondary inspection area. But ongoing construction at the checkpoint prevented him from doing so. 1 Nelson left the checkpoint. 1 At the suppression hearing, Agent Stauffiger testified that due to the ongoing construction, “Jersey barriers” forced drivers “to turn out towards the exit before the scan was completed.” Due to this setup, it was “not feasible for [agents] to make the motions or the indication to the driver to go to the secondary inspection area.” 2 Case: 19-41008 Document: 00515778709 Page: 3 Date Filed: 03/12/2021 No. 19-41008 Now suspecting the scan revealed bundles of …
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