United States v. Heriberto Fernandez Monsisvais

they or that consti- ruling on the motion of recent revisions of the light the case hearing After exten- with error. great care tute reversible 11.... Given Rule coun- testimony prior this revised defense taken under pleas are sive pleas himself, view is no reason to deter- Hickok court Rule sel and “tentative,” subject merely presented a had not so taken mined that Hickok whenever sentence withdrawing before to withdrawal just” “fair and reason preju- cannot establish government failed fact that Hickok plea. light dice. of his for withdrawal present basis court’s comments about plea, Judiciary, of Committee Notes case, though strength government’s 94-247, Federal Crimi- No. Report House ill-advised, legally inconse- Rules, (West p. perhaps Publish- nal Code did not judge the trial 1990). quential. We hold ing Co. denying motion his discretion abuse Young, citing v. Finally, United States plea. guilty withdraw the (3rd Cir.1970); v. Leonard 424 F.2d Cir.1956); (5th States, F.2d 588 United the dis- sentence of judgment The States, F.2d 690 v. Friedman United is AFFIRMED. court therefore trict denied, Cir.1952), (8th cert. (1953); and L.Ed. 1357 Tateo, F.Supp. United in rul argues that Hickok

(S.D.N.Y.1963), improper motion, the trial court

ing on the We guilt. his evidence

ly considered and the law cited the case reviewed unper submitted, wholly and are record argument. by Hickok’s suaded America, UNITED STATES observed: The trial court Plaintiff-Appellee, Defendant or innocence guilt should the criteria that not one of MONSISVAIS, Heriberto Fernandez let or not to determining whether used Defendant-Appellant. plea guilty. withdraw a Defendant on the basis or not just whether It’s No. 89-2187. be. it should

fairness Appeals, Court of Tenth Circuit. jury take a it would don’t think just Defendant we have long very when July testifying that he— Officer a Police actually had right I remember —he the arrest time smoking pipe in a briefcase marihuana had some substantial, And the vehicle. inside quantity rear additional

vehicle. wisely defense I think counsel] [the of a best to make the your client

advised aof make best And to

bad situation. forward to come here was situation

bad cooperate. guilt and to his

and admit stan- proper

Thus, court stated the trial opinion of his rendered then

dard but

case. these com- persuaded

areWe guilt considerations amounted

ments result of vehicle was

marijuana his seizure. and an search Goad, an February Bruce On Border Pa- the United States agent with check- Patrol trol, a Border operating was Interstate northbound point station New Mexico. Consequences, Truth or near approximately that at testified Agent Goad check- alarm alerted p.m. a 7:30 sensor of a vehicle presence point’s officers 85, a Highway traveling northbound bypass the to possible is by which it route commonly to used is checkpoint and which then checkpoint. Goad bypass saw the 85 and over looked ve- appellant’s northbound headlights of hicle. agent, Goad by another

Accompanied in a on 1-25 marked north drove intercept order car to Exit by Goad 83 was described Exit vehicle. and State Road point as the “where on-ramp meet, an ... there’s up the north, they’re going 1-25 or for they can catch turning from or road that “there’s elaborated Goad 1-25 south.” go right there ways you can three that the intersection and intersection” confusing “[pjeople “somewhat” lost gotten there.” Lutz, (William L. A. Torrez Presiliano stopped his that he Agent Goad testified brief), Asst. on the him Atty., with lights his at the intersection with patrol car N.M., plain- for Albuquerque, Atty., again as headlights on and turned his off tiff-appellee. de- drew near. him on (Gary Hill with Ramos Robert Chevrolet as a small the vehicle scribed Tex., Ramos, Paso, El brief), Hill & and noted camper pickup with S—10 defendant-appellant. occupants in the cab. he could two see that extremely “riding was the vehicle He said BARRETT, and SEYMOUR, Before low on end was real heavy. The rear BRORBY, Judges. Circuit vehicle, the front of weight in the was a lot BRORBY, Judge. like there Circuit raised rear_” previ- that he stated an motion filing unsuccessful After concealed ously found aliens en- evidence, appellant Monsisvais suppress shells, trucks possession guilty plea to tered a conditional “we don’t plates and had Arizona marijuana kilograms of than more high- on the old many Arizona get Mr. Monsisvais to distribute. with intent there.” way discovery appeal asserts placed the defen- ramp, which then Goad, appellant’s vehicle According to intersection, traveling south on 1-25. dant’s car approached it slowed it why reason I should state attempt placed an on 85 was [appel- sensor [Agent appeared to Goad] which checkpoint the to vehicles on-ramp on to to alert take the going to lant] using to circumvent normally he were 85 north, that when and believe 1-25 checkpoint. and the the fixed patrol vehicle saw the border turn. In- his headlights, he corrected noticing the vehicle he noticed Upon he contin- north going on 1-25 stead of heavy, using riding extremely it that was and eventual- highway, upon the old ued plates Arizona That it his words. south_ on-ramp 1-25 ly took the an to see that it was common and in that plates automobile with Arizona added: Goad vicinity. for aliens practice an uncommon It’s not the proceeded to follow And so he then if may be, case smugglers, either or alien suspected he it and then vehicle, they patrol the border they see aliens, as there was might contain entering the instead will sometimes pickup, and so therefore camper on the they in the direction freeway northbound stopped he the vehicle. up the old continue going, they will were using Old they if are highway, southbound,

85, freeway and enter appropriate prop- is an [T]hat up on just continue they will sometimes Terry stop.... er ends.” ’til it Old held that the Additionally, the district court that, noticing after proper. Appellant subsequent further testified search was occupants and challenges legality the two of both weight and now “the my resulting of aroused search. plates, it kind and the of the vehicle out-of-state stopped the vehicle the district court and we we reverse suspicions Because southbound, stop, to the exit.” we do pretty investigatory close issue of the 1-25 citi- as to his of the search. appellant propriety questioning address After strong odor very smelled “a zenship, Goad camper from the II emanating marijuana” appellant and his placed then shell. familiar the court to returns This case possession arrest under

passenger territory; we have legal geographic agent arrived at After another marijuana. to assess upon called frequently been verify marijua- dog to scene with made investigatory stops legality opened the odor, agents na Mexico-Mexi Patrol near New Border marijuana inside. and discovered See, v. Pol e.g., States United co border. hearing on Cir.1990); conclusion (10th At the United lack, F.2d 686 895 an- court (10th the district Suppress, 780 Motion 630 F.2d Merryman, v. States from conclusions findings and its Leyba, 627 F.2d Cir.1980); nounced States v. 987, denied, Cir.), the bench: (10th cert. 1059 (1980); 406, Unit 66 L.Ed.2d 101 S.Ct. Agent Goad finds that The Court (10th F.2d 808 Sperow, v. States fixed ed T or C working the 930, 97 S.Ct. denied, Cir.), cert. High- alert they had a sensor when (1977). 2634, 53 L.Ed.2d old 85, is the way which 1-25. parallels which now sup- not be stop need investigatory An proceeding a car observed That he probable cause. United ported by himself Cir.1986). That he stationed (10th north on 782 F.2d 888 Espinosa, v. 1-25. 52 and roving intersection However, “officers Border Patrol only they stop vehicles patrol may perceived that when least That —at facts, together specific articulable presence, the ve- aware noticed his facts, those inferences rational proceeded with then on 85 hicle continued particular- taming must have officers suspicion that the reasonably warrant suspecting basis for objective ized illegally may be who contain person stopped of crimi- Brigno country.” United activity. nal ni-Ponce, 422 U.S. (extending Ter 417-18,101 (empha- 45 L.Ed.2d at 695 U.S. at 1868, 20 1, 88 S.Ct. Ohio, ry added). sis context). (1968), to the border L.Ed.2d 889 “totality of the Incorporating the investigatory stop alternatively, an Stated by appellees in upon relied circumstances” un “observes an officer when justified we fashion the stop, the instant support of reasonably him leads usual conduct question us as reasonable-suspicion before experience his light to conclude agents follows: Whether Terry, may be afoot.” activity criminal Consequences Truth or operating the 30, at 1884. S.Ct. 392 U.S. at every heavily loaded may stop bearing a pickup truck is rea determining whether In that travels plates license out-of-state in the bor stop a car suspicion to sonable Highway 85 on this stretch northbound any number may consider area, officers der outlined be p.m. For the at 7:30 reasons (1) factors, including: characteristics must be an low, question we believe is encoun the vehicle in which the area negative. in the swered the area to the tered; (2) proximity of traffic on border; (3) patterns the usual significance Appellee places considerable experi road; (4) previous intercepted appellant was that fact traffic; (5) alien agent with ence of the Highway traveling 85. northbound while illegal border recent about information it is sure, agree that parties all To be area; (6) be the driver’s crossings in the permanent check- bypass the possible to attempts to any obvious havior, including However, traveling Highway 85. point by vehicle, officers; (7) of the aspects us, evade the record before to the state of due wagon with concealed station such as a total of our represents fact sum this appearance that compartments; highway. knowledge this about stretch 422 U.S. heavily at loaded. of information describ- record is barren Additionally, 884-85, 2581-82. Highway at 85 in this area origins ing the in types the facts to assess to the is entitled instruct an “officer and thus us fails detecting illegal might expected experience that be light legitimate traffic of his 885, day. at smuggling.” S.Ct. at this time of Id. use of the road entry and to make 392 U.S. (citing Terry, at 2582 reveals, this stretch of For all record 1883). S.Ct. artery con- might be the sole Highway 85 Cortez, Consequences city Truth or necting In United (1981), the 1-25, may represent 66 L.Ed.2d or it to northbound provided further direction 1-25 to of access Ele- Supreme primary Court means Terry/Brignoni-Ponce certainly applying phant Reservoir.1 We for Butte some evi- to assume without willing standard: 85 is some de- Highway that “old” dence reasons” and “articulable Terms like checkpoint circum- caying dirt road or not self-defin- suspicion” are “founded utility. practical lone Accord- is its providing vention clear they fall short of ing; cannot conclude ingly, we myriad factu- dispositive guidance legitimate during traffic significant has no the essence arise. But al situations short, evening early hours. is that the written has been of all that for con- provide basis record us whole does the circumstances—the totality of High- presence cluding a vehicle’s into account. be taken picture—must unusual, much p.m. is at all way 85 at 7:30 picture the de- upon that whole Based road 52 us, access state for 85 to use via Good's inform does 1. The record purposes. to a testimony, road 52 leads lake. recreational that state might Thus, travelers that some it is conceivable court in similar For con- tered this cases. of criminal suggestive it is less that Pollack, example appellant’s vehicle duct.2 Conse- approached the Truth or first us enable Similarly, the record does not checkpoint and turned south quences back to the significance any particular to attach asking after Interstate 25 directions plates in this license of Arizona appearance respond- gas nearest station. After must certain- Although Arizona cars area. northbound ing alerts on to two sensor of road on this stretch less common ly be agents then discovered plates, we bearing New Mexico than those leading record from second any find basis cannot Arizona-plated ve- carrying contra- conclude that to be that later was found transport- likely it, hicles are more the record before Based on band. than Consequences or ing aliens near Truth of a court referred to the use Pollack plates bearing the license are vehicles fashion as “a classic car “scout” matter, Texas or or, for that New Mexico F.2d at smuggling pattern.” 895 Colorado. Similarly, Merryman the investigatory officer made an any signifi- to ascribe also unable We are a di- observing truck make after driving maneuvers cance whatsoever reaching perma- just prior to a Highway rect U-turn approached as he appellant of Agent checkpoint. As F.2d at 781. 1-25. with nent 85’s intersection testified, highways Highway three — however, find that importantly we More converge at and road 1-25 state 52— by Agent here inferences the drawn intersec- admitted that the point. He this appellant turned south the fact that from “[pjeople confusing and that is tion ration- intersection cannot withstand at the Thus, any out-of-state gotten lost” there. testimony, analysis. Revisiting Goad’s al ap- confused might appear well traveler asserted: intersection, to down slow proaching practice aliens make uncommon for or even It’s not an exit to take which determine be, if may smugglers, either case or alien wrong turn. vehicle, they patrol they see the border “the truck ... argues that Appellee entering the of instead will sometimes than North on [1-25] turned south rather they in the direction freeway northbound This ac- patrol. the border spotting after up the old going, they will continue were by the border evasive considered tion was Highway using Old highway, they driving However, appellant’s patrolman.” southbound, freeway enter and the same simply does elicit behavior up just on they will continue sometimes suspicions logical inferences types of ends. Highway 85 ’til it encoun- Old maneuvers as do other “evasive” 1,071 Mexico, averaged vehicles contrast, Leyba this New provided By record in day; Cliff on weigh per at the town of with court with evidence 1,473 per day ob- average was Mexico, vehicles presence another an served, of on significance of vehicle’s Cliff, just New north of Mexico at 2:55 a.m.: highway in New averaged Highway vehicles on traffic major Highway is considered vehicles, pas- day. 14.1% were per Of these smuggling artery undocumented plates. senger out-of-state license cars with Mexico, During year northward. from Martinez, experience, past on based Officer arrest, 1,163 Leyba's undocumented prior to smugglers fifty percent of the that estimated Highway 180. apprehended on aliens were bearing driving apprehended were majority of testified that the Martinez plates. out-of-state place trafficking Highway took on parentheti- (footnote included 627 F.2d at 1061 dur- and 7:00 a.m.—hours 2:00 a.m. between Similarly, Sperow, we affirmed cally). in stop point ing of which traffic traveling one-half a mile and stop a vehicle of during the averaged only two one or cars part be- 2 a.m. in the Mexico border (Leyba that he period. testified entire “testimony that the ranchers cause showed Highway in the hour seen cars prone roads to drive the contrast, were not area stopped.) the aver- he was before that it was inferable question 2 a.m. so that from Silver age daily traffic F.2d at 1,031 passed the border.” 551 vehicle had ve- City 78 turnoff was to the Route Cliff, 810-11. per day in 1978. Just southeast hicles of road- stretch traveling this ve- state patrol the border they see ... [I]f transporting capable is smugglers] way do that or alien ... hicle [aliens beings. concealing human everything. bit little direction words, matter which no totality In other that the Accordingly, hold we reach- upon traveled might have appellant presented facts articulable specific 1-25, south intersection—north ing the infer- the rational case, together with 85— ahead on straight 1-25 or therefrom, rea- do not to be drawn ences “suspicious” have been would his actions that suspicion sonably warrant suspicion every Plainly, not Agent Goad. illegally in the persons contained is reasonable. “articulable” country. fact consider left to areWe RE- court is district The decision truck traveling in a appellant VERSED. shell and awith rep- these facts heavy.” While “riding Judge, BARRETT, Circuit Senior detailed factors significant two resent dissenting: not automatic they are Brignoni-Ponce, dissent. respectfully I must truck A conduct. criminal indicia any number camper shell has awith that the majority agree While commercial, agricultural legitimate pro- uses— in this case failed has government re- may periodically recreational —that incidence indicating the facts us with vide heavy cargo. transportation of quire the ac- smuggling drug and/or illegal alien New Consequences, Truth or tivity it fatal to we consider Accordingly, Border Patrol Mexico, the evi- giving rise instant area legality activity aspects of criminal suspicions of to these officers’ as dence by supplemented my it is view been still experience, has not on based vehicle factors of any other salient reversal of basis evidence is no reasonable record suspicion. appel- denying a reasonable support tending to court’s order district the demonstrated, is the record of the evidence suppress As we to motion lant’s area of the characteristics marijuana silent as confiscated of pounds 220 encountered, the was in ve- appellant’s which of rear section border, the area to of the proximity hicle. particular on the traffic of patterns usual testified that: Agent Goad Border Patrol ex- recent or about information road (23) experi- years of twenty-three activity in the immigrant pected commonly used to is ence; Highway 85 not record does Additionally, the area. main- the Border by-pass previous ex- agent’s of details provide or Con- near Truth 25 on Interstate tained Agent beyond alien traffic perience with runs Mexico; Highway 85 sequences, New that “sometimes” suggestions Goad’s or Con- near Truth parallel to Interstate 25 camper shells pickups with use smugglers Mexico; ap- he observed sequences, New Highway 85. they travel “sometimes” pickup with S-10 Chevrolet pellant’s provide to such, record fails As 7:30 traveling north about camper shell justify the necessary to picture” “whole ob- 85 and thereafter p.m. heavily loaded this stopping “riding ex- the vehicle was served day.3 time road at this on this truck rear; previ- he had heavy” in the tremely based otherwise to conclude Were we con- undocumented ously discovered effectively emascu- record, we would this camper shells. pickup trucks with cealed standard Terry/Brignoni-Ponce late Pa- Border experienced an I submit that sub- suspect and render circuit would, Agent Goad as such officer out-of- trol heavily loaded every ject to up as factors simply those We noni-Ponce. hold suggest sufficient documen- that a not We do 3. tq woe- by demonstrate a benchmark agent’s reasonable record an in the tation suspicion support the to submitted ful lack information number contain must stop. Brig- suggested instant the factors combination or

993 particularized heavy too to allow recited and circumstances the facts under activity enable it study given car that would above, reasonably suspect criminal in of an minimal intrusion carrier of possible as justifying to be identified the district agree stop. vestigatory illegal aliens. a rea Agent Goad had finding that

court’s 556-557, S.Ct. U.S. at 96 appellant sonable, suspicion that articulable States, 413 il v. smuggling Almeida-Sanchez involved in was Monsisvais 2535, to aliens, 266, sufficient 37 L.Ed.2d and that this was 93 S.Ct. legal U.S. Terry aof minimal intrusion justify patrols maintained roving held that 1868, 1, Ohio, (Terry v. supplements to the Border Patrol as (1968))stop. In United L.Ed.2d empowered checkpoint system were S.Ct. Sokolow, simply stops searches random effect (1989), Supreme 104 L.Ed.2d general vicini- a vehicle was because observed: Court specifi- The did not ty of border. Court suspicion, concept of reasonable The case, “stop” aspect of the cally address the ‘readily, or cause, is probable like search, subsequent did hold that but a neat set reduced usefully, even probable or without consent conducted validity evaluating rules.’ In legal cause, Fourth Amend- was violative this, consider we must stop such as ment. whole ‘totality the circumstances—the case, agreed it In the instant Cortez, 449 picture.’ United operating a fixed 411, 417 [101 25 to check checkpoint on Interstate (1981). we said Cor- Patrol As L.Ed.2d 621] alarms the sensor traffic when northbound tez: alerted, indi- Highway were adjacent with hard not deal process does traveling north- cating the law of that a Long before certainties. such, p.m. Agent at 7:30 was articulated probabilities bound certain formulated 85 and ob- people practical looked over hu- about traveling sense conclusions north- common served behavior; fact-finders jurors as man enough require It was dark bound. so same—and to do the permitted in his then drove headlights. Agent Goad at officers. Id. law enforcement vehicle, accompanied an- Patrol Border 695], at 418 S.Ct. [101 intercept by to an area close agent, to other ap- Martinez-Fuerte, identified 428 He then vehicle. States United L.Ed.2d 1116 as a with 96 S.Ct. pellant’s U.S. Patrol’s rou- in the rear. (1976) extremely heavy” “riding holds permanent at a all stopping of Arizona tine bore also noted that He highway major on a located checkpoint plates. license for brief the Mexican border away from circumstances, it seems to these Under occupants is of the vehicle’s questioning stop of appellant’s that the me Amendment. the Fourth with consistent equivalent was the functional that: observed The Court stop on Interstate checkpoint fixed traffic-checking pro- aof Maintenance suspicion is re so, no articulable If necessary because interior is gram in the States stop. United to effect quired con- cannot be flow of (10th 686, 687 Cir. Pollack, F.2d the border.... effectively at trolled testimony of Border 1990), referred we apprehend inquiries checkpoint Routine “[Highway 85 Sanchez who illegal aliens smugglers and many smuggling alien is a well-documented high- of such lure succumb smuggling “alien many and that route” stops on requirement A ways .... on that apprehended have been loads” always based on be inland routes major found specifically The district court impracti- route. suspicion would reasonable Highway 85 is well-documented tends of traffic the flow cal because This court Id. at 688. route. smuggling finding. Id. at 690.

adopted that has Supreme Court

The detentions stops and brief

upheld roadblock verifying driver licenses purpose

for the Delaware v. registrations, automobile S.Ct.

Prouse, and deter to detect

L.Ed.2d 660 Department driving. Michigan drunk — -, Sitz, Police v.

State Sitz, (1990). In L.Ed.2d

S.Ct. pertinently observed: majority mag- dispute the seriously can

No one problem or driving

nitude of the drunken eradicating it.... interest

the states’ bearing weight

Conversely, the intrusion measure of the

other scale—the sobriety briefly stopped at

on motorists reached a slight. We

checkpoints—is the intrusion on as to conclusion

similar stop at a a brief subjected to

motorists detecting illegal

highway Martinez-Fuerte, supra, at

aliens. See 3083]. [96

— -, at 2485-86. and United

Immigration officers duty charged agents are

Customs the United States protecting illegal aliens contraband.

entry of problem detection

magnitude near our at or contraband

illegal aliens and dispute. beyond

borders affirm. would America, STATES

UNITED

Plaintiff-Appellee, II, MILLER, G.

Herbert

Defendant-Appellant. 84-2766, 85-2334.

Nos. Appeals, Court Circuit.

Tenth

July

Case Details

Case Name: United States v. Heriberto Fernandez Monsisvais

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jul 3, 1990

Citation: 907 F.2d 987

Docket Number: 89-2187

Court Abbreviation: 10th Cir.