Angeles-Mendoza v. State
United States Court of Appeals, Fifth Circuit
628 F.3d 712
IV. CONCLUSION
For the foregoing reasons, we VACATE Garcia‘s sentence and REMAND for resentencing in accordance with this opinion.
UNITED STATES of America, Plaintiff-Appellee, v. Luis Gerard CERVANTES, also known as Luis Gonzalez Cervantez-Martinez, Defendant-Appellant.
No. 14-50208.
United States Court of Appeals, Fifth Circuit.
Aug. 14, 2015.
Damian Castillo, Esq., Midland, TX, for Defendant-Appellant.
Before SMITH, PRADO, and OWEN, Circuit Judges.
OWEN, Circuit Judge.
Luis Gerard Cervantes appeals his conviction on the ground that the Border Patrol agents who conducted the traffic stop that led to his arrest lacked reasonable suspicion and violated the Fourth Amendment. The district court denied Cervantes‘s motion to suppress. We affirm.
I
The relevant facts are not in dispute. On a Wednesday in early October, at approximately 8:30 a.m., Cervantes was driving a Chevrolet Trailblazer eastbound on Interstate 20 (I-20) near Odessa, Texas, with five passengers. That morning, Border Patrol Agents David Collier and Carlos Ramirez were on roving patrol and had parked in the median of I-20 when Cervantes‘s vehicle passed them. Collier noticed that the Trailblazer was sagging in the rear or perhaps overloaded, and both agents noticed that the vehicle had multiple occupants. The agents decided to investigate further.
Collier and Ramirez conducted a traffic stop. As Officer Collier approached the Trailblazer, he saw burlap backpacks, one of which was torn, and he saw small brick bundles wrapped with brown tape. These bundles were consistent with the way in which illegal drugs were often packaged and smuggled, and he believed the bundles contained marijuana. Ultimately, it was determined that approximately 170 pounds of marijuana in the backpacks that had been carried across the border by the rear passengers. Cervantes and all of the passengers were arrested and charged with aiding and abetting possession with intent to distribute marijuana.
Cervantes filed a motion to suppress alleging he was stopped without reasonable suspicion in violation of the Fourth Amendment. After a hearing, the district court denied the motion. Cervantes entered a conditional guilty plea and reserved his right to appeal the ruling on his motion to suppress. The district court sentenced Cervantes to fifty-one months in prison and three years of supervised release. Cervantes appeals the denial of his motion to suppress.
II
In reviewing the district court‘s disposition of the motion to suppress, we review legal conclusions de novo, including the conclusion that Collier and Ramirez had reasonable suspicion to stop Cervantes, and factual findings for clear error.1 We view the evidence presented at a pretrial hearing on a motion to suppress in “the light most favorable to the prevailing party,” in this case the Government.2
III
Border Patrol agents on roving patrol “may detain vehicles for investigation only if they are aware of specific, articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicle is involved in illegal activities.”3 We weigh the factors outlined by the Supreme Court in Brignoni-Ponce4 to determine if reasonable suspicion existed to stop a vehicle in a border area.5 The factors that may be considered include:
the area‘s proximity to the border; - characteristics of the area;
- usual traffic patterns;
- the agents’ experience in detecting illegal activity;
- behavior of the driver;
- particular aspects or characteristics of the vehicle;
- information about recent illegal trafficking of aliens or narcotics in the area; and
- the number of passengers and their appearance and behavior.6
We look to the totality of the circumstances, and not every factor must weigh in favor of reasonable suspicion for it to be present.7 “Factors that ordinarily constitute innocent behavior may provide a composite picture sufficient to raise reasonable suspicion in the minds of experienced officers.”8
The Supreme Court has explained that evaluation of these “factors in isolation from each other does not take into account the ‘totality of the circumstances,’ as our cases have understood that phrase.”9 The Supreme Court has rejected the proposition that if behavior was “itself readily susceptible to an innocent explanation [the behavior] was entitled to ‘no weight.‘”10 The Supreme Court has observed that
Terry ... precludes this sort of divide-and-conquer analysis. The officer in Terry observed the petitioner and his companions repeatedly walk back and forth, look into a store window, and confer with one another. Although each of the series of acts was “perhaps innocent in itself,” we held that, taken together, they “warranted further investigation.”11
The Supreme Court held in United States v. Sokolow that factors which by themselves were “quite consistent with innocent travel” collectively amounted to reasonable suspicion.12
The agents encountered Cervantes‘s vehicle near Penwell, Texas, on I-20 traveling east toward Odessa. In determining whether agents had reason to believe that the occupants of a vehicle had recently crossed the border, our court has said that proximity to the border is “a paramount factor in determining reasonable suspicion,”13 and when a stop takes place more than fifty miles from the border, “we look at the remaining factors most carefully to ensure the stop complied with the ... Fourth Amendment.”14 The distance of this stop from the border between Mexico and the United States weighs against reasonable suspicion.
That the stop occurred more than fifty miles from the border is not dispositive, however.15 We have said that “even where a vehicle is beyond the fifty mile benchmark, the fact that the northbound vehicle was traveling from the direction of the Mexico-United States border can be a legitimate factor when viewed in conjunction with other factors.”16 There are other factors present in this case that support reasonable suspicion.
Though the point at which the vehicle was stopped was approximately 200 miles from the border between Mexico and Texas, the district court found that Interstate 20, on the west side of Odessa, where this stop occurred, “is well known for its prevalence of drug and alien smuggling.” The evidence in the record supports that finding. In addition, Officer Collier testified that he had made more than 100 stops in the area west of Odessa on Interstate 20 that had resulted in discovering undocumented aliens and illegal drugs on “regular occasions.”
Our court has also recognized that this portion of Interstate 20 is “a favored route for illegal alien smugglers.”17 In another decision from this court, we recognized that there was evidence that the same location at which Cervantes was stopped, on Interstate 20 near Penwell, Texas, was “notorious for alien smuggling and narcotics.”18
In United States v. Orozco and United States v. Morales, this court determined that reasonable suspicion existed for stops on I-20 near Penwell, Texas, where Cervantes was stopped. In Orozco, the driver was traveling eastbound on I-20 at about 9:30 a.m. on a Sunday in a pick-up truck.19 Orozco, the front passenger, was slumped over, and the driver was looking straight ahead.20 The bed of the truck was covered with a blue tarp.21 The truck was riding low and weaving back and forth on the road.22 The agent began following the truck, pulled up next to the truck, and honked his horn.23 The driver did not look at the agent, although the agent was not sure if the driver heard the honking.24 The agent noticed that the spare tire was in the backseat with a jacket draped over it, which indicated to the agent that there was something in the truck bed.25 The agent testified that “he had stopped numerous loads of aliens on that stretch of road, generally between 9:00 and 10:00 in the morning.”26
The Orozco court stated that because the stop took place between 200-300 miles from the border, the proximity factor did not “cut[ ] in favor of a finding of reasonable suspicion.”27 However, other factors weighed in favor of reasonable suspicion: (1) the area of I-20 was known for smuggling, and the agent “had personally captured approximately 20 loads of aliens in the same area over the previous five month period“;28 (2) the agent testified that “the majority of smugglers passed through that particular stretch of I-20 on weekends between 9 and 10 a.m., the precise day and time in which Orozco‘s pickup was traveling,” and Orozco was traveling eastbound, which was consistent with other smuggling loads;29 and (3) the truck was heavily loaded and weaving; the truck bed was covered by a tarp, “a common technique employed by smugglers to hide illegal aliens,” and the spare tire was in the back seat.30 It is unclear how much weight the court gave to Orozco‘s behavior (slumping in his seat) or to the driver‘s failure to acknowledge the agent after he honked, but these factors were part of the court‘s analysis.31 The court determined that, based on the totality of the circumstances, reasonable suspicion existed.32
In Morales, our court determined reasonable suspicion existed for a stop on I-20 near Penwell, Texas.33 The court accorded weight in favor of reasonable suspicion to (1) the agent‘s 28 years of experience and the fact that “[i]n the past year alone, [he] had detained approximately 600 illegal aliens on this stretch of the highway“;34 (2) the pick-up truck had under-inflated tires and bounced as it passed over bumps in the road, indicating that it was heavily loaded;35 and (3) the truck bed had a fiberglass cover.36 The court mentioned the following facts, but it is unclear if the court gave weight to them: (1) “[t]he majority of the smuggling detected by the Agent occurred between 9:30-10:00 a.m.[, and the driver] passed by the Agent during that time period,”37 and (2) the driver did a “doubletake” when he saw the agent‘s marked vehicle, slowed down, and after the agent started following him, weaved back and forth on the road.38
Based on the record in the present case, the factors other than proximity to the border weigh in favor of reasonable suspicion. Collier testified that Cervantes‘s vehicle appeared to be sagging in the rear, and in his experience, that is indicative of narcotics smuggling because smuggling vehicles usually have multiple occupants. While Collier acknowledged that the vehicle did not show any indication that it had recently “gone off road,” and that he did not know if there was an alternative explanation for the vehicle riding low, such as the vehicle‘s shocks were worn, given Collier‘s field experience observing weighed-down vehicles, the fact that Cervantes‘s vehicle was riding sagging in the rear is part of the totality of the circumstances that gave rise to reasonable suspicion.39
Collier testified that, by his estimate, when Cervantes passed the agents, Cervantes was traveling “at or approximately at highway speeds.” As the agents neared Cervantes, although there were no vehicles in front of him or attempting to pass him, Cervantes quickly switched from the left lane to the right lane and pulled behind a semi-truck that was traveling about ten to fifteen miles under the speed limit. Collier stated that, while not illegal, this type of driving behavior was consistent with other smuggling loads he had seen, and it was particularly significant because Cervantes had time to pass the semi-truck but instead chose to follow very close behind it. While driving parallel to Cervantes‘s vehicle in their marked Border Patrol vehicle, the agents honked six times. Ramirez testified that Cervantes had to know they were Border Patrol agents because Cervantes had passed them when they were parked in the median. During this time, Cervantes looked forward and kept his hands tightly on the steering wheel.
Collier stated that he had not used the honking technique many times before, so he did not opine as to whether it was normal for Cervantes to continue looking forward. Collier conceded that it was safe for Cervantes to keep his eyes on the road, but Ramirez testified the lack of eye contact indicated to him that the occupants wanted to “shield the[m]selves from us.” Collier further testified that while semi-trucks often travel below the speed limit, it was suspicious that Cervantes began traveling below the speed limit. Cervantes‘s decision to decelerate and pull behind the semi-truck as the agents neared his vehicle even though no other vehicles were near him40 and his failure to acknowledge the agents’ presence after the honking41 are entitled to some weight in favor of reasonable suspicion.
In addition to Cervantes, there were five passengers in the Trailblazer: one in the front passenger seat, three in the back seat, and one in the rear cargo area. The passenger in the front seat was female, and the rest were males. The agents testified that it is not uncommon to see a vehicle with multiple occupants on I-20; however, multiple passengers were usually seen in vehicles that were used in an oilfield business. Those vehicles were usually flatbed, dually or pickup trucks, generally with lettering on the side, big diesel tanks, racks, tool boxes or brush guards attached. The Trailblazer, a small sport utility vehicle (SUV), had none of these features. While Ramirez agreed that if there were a fifth passenger in Cervantes‘s vehicle, the only space for him would be in the rear cargo area, the agents testified it is very uncommon to see a passenger in the cargo area of a passenger vehicle, such as a Trailblazer, where there is no seat or seatbelt. The agents further stated that such a seating arrangement is consistent with smuggling. Collier additionally testified that a vehicle with multiple occupants is typical for narcotics smuggling. While the fact that a vehicle had multiple occupants is not necessarily suspicious,42 the travelers’ positions in this vehicle are a consideration supporting the agents’ stop of the vehicle.43
Regarding their appearance, the front passenger was wearing short sleeves and appeared “clean,” while the rear passengers wore heavy clothing and jackets and appeared “dirty, [like] they just came off the brush.” The rear passengers appeared to have not bathed or shaved in several days. It was 8:30 in the morning when the stop occurred and therefore unlikely that the rear passengers’ appearance was due to working outdoors that day. Ramirez stated that at the time of the stop, he was wearing short sleeves, and short sleeves were more appropriate for the temperature that day than the rear passengers’ clothing. He testified that immigrants who had been in the brush crossing the border often worn a jacket for protection against the brush and thorns and for warmth during the cool nights. He had observed that type of dress on many occasions when undocumented aliens were encountered. As to why the back passengers had jackets while inside the vehicle but the driver and front passenger did not, Ramirez agreed that individuals respond to temperature differently, and he did not know the temperature inside Cervantes‘s vehicle but expressed some doubt that there could be different temperatures of that magnitude in a small SUV. He also testified that all the passengers appeared to be Hispanic. The evidence regarding the rear passengers’ attire in conjunction with the time of day and the noticeable difference in appearance and dress between the rear passengers and the front passenger are also part of the totality of the circumstances that gave rise to reasonable suspicion.44
The agents testified that I-20 has “heavy traffic coming from the south” and that they patrol I-20 frequently based on their knowledge that “alien and narcotic loads are entering from the south and ... [I-20]‘s a good highway that leads up to Odessa and north.” As we have noted, I-20‘s reputation as a smuggling route weighs in favor of reasonable suspicion.45 Additionally, at the time of the suppression hearing, Collier had over sixteen years of experience as a Border Patrol agent, ten of which were spent in the Midland area, and Ramirez had eleven years of experience, three of which were spent in the Midland area. The agents testified that their main duty is traffic observation and that they often watch traffic on I-20. Their substantial experience is a factor weighing in favor of reasonable suspicion, in light of what they observed.46
Cervantes points to other evidence that he contends require us to conclude that the agents had no reasonable suspicion when they stopped his Trailblazer. Collier testified that people drive to their jobs in Odessa in the mornings and that traffic is heavy at those times. The agents did not testify that this time or day of the week had any particular significance to them,47 and there is nothing inherently unusual about traveling on a major thoroughfare on a weekday morning.48
Collier testified that Cervantes‘s vehicle was registered in Morton, Texas, approximately 135 miles north of Odessa. There are highways that connect Odessa to Morton. “A vehicle‘s registration may, under some circumstances, add to reasonable suspicion,”49 and here, the facts were consistent with traveling to Morton.50 The agents also testified that the decision to pull Cervantes over was not based on a tip or information from an informant. Although Collier had performed numerous traffic stops in the area, he could not recall exactly how many recent arrests he had made, and Ramirez stated that he could recall making one arrest in the months preceding Cervantes‘s arrest. We have said that the lack of a tip or information about recent illegal trafficking in the area detracts from reasonable suspicion.51
The facts of the present case are similar, to some degree, to facts discussed in United States v. Olivares-Pacheco.52 In that case, the Fifth Circuit determined no reasonable suspicion existed.53 Like Cervantes, Olivares-Pacheco was traveling eastbound, in the right lane, on I-20 near Odessa, Texas, on a weekday morning (10:30 a.m.).54 Cervantes drove a Trailblazer, an SUV, while Olivares-Pacheco drove an extended-cab pick-up truck.55 Both vehicles were registered in another area of Texas accessible from I-20 or roads stemming from I-20.56 Like Cervantes‘s vehicle, there were six occupants in Olivares-Pacheco‘s vehicle, but one of the passengers in Cervantes‘s vehicle traveled in the rear cargo area where there was no seat.57 Also unlike Cervantes, who decelerated when the agents began catching up to him, Olivares-Pacheco drove at the speed limit.58 Neither Cervantes nor Olivares-Pacheco engaged in erratic driving behavior.59 Olivares-Pacheco‘s vehicle had brush underneath it, and Cervantes‘s vehicle appeared to be riding low.60 In both situations, the drivers did not acknowledge the agents’ presence when the agents pulled up next to their vehicles; in Cervantes‘s situation, the agents also honked multiple times.61 One of the passengers in Olivares-Pacheco‘s vehicle pointed in the opposite direction of the agents, and the others looked that way.62 The passengers in Cervantes‘s vehicle were dirty and wearing jackets, while the front passenger and Cervantes were clean and in short sleeves.
In Olivares-Pacheco, this court determined reasonable suspicion did not exist for the stop.63 The only factor the court considered as solidly weighing in favor of reasonable suspicion was the agents’ extensive experience.64 The differences between Olivares-Pacheco and the present case are that: (1) Cervantes changed lanes and decelerated; (2) the rear passengers in Cervantes‘s vehicle wore jackets, were dirty, appeared not to have shaven or bathed for days, and the time of the stop was inconsistent with returning from work; (3) one of the passengers was in the rear cargo area; (4) the agents honked at Cervantes, making his failure to acknowledge them more notable; and (5) Cervantes‘s vehicle was riding low. While there is conflicting case law, support can be found as to the relevance of each of these factors, with the exception of the fact that the passengers wore jackets.65 Both of the agents who made the stop were experienced in apprehending alien smugglers, and the agents were personally familiar with the appearance of aliens who had emerged from brushy areas after crossing the border, including the types of clothing typically worn. The agents testified that the appearance of the passengers in Cervantes‘s vehicle was entirely consistent with aliens who had crossed the border and traveled through the Texas brush. The experience of agents in circumstances such as these is entitled to weight.66 There is evidence in the present case that was not presented in Olivares-Pacheco. We must consider the totality of the circumstances that faced Agents Collier and Ramirez.
Viewing the evidence in the light most favorable to the Government,67 and considering the totality of the circumstances,68 the agents had reasonable suspicion to stop Cervantes. The traffic stop did not violate the Fourth Amendment.
*
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For the aforementioned reasons, we AFFIRM the district court‘s judgment.
UNITED STATES of America, Plaintiff-Appellee, v. Luis Gerard CERVANTES, also known as Luis Gonzalez Cervantez-Martinez, Defendant-Appellant.
No. 14-50208.
United States Court of Appeals, Fifth Circuit.
Aug. 14, 2015.
Because this border-patrol stop occurred more than 200 miles from the U.S.—Mexico border based on little more than innocuous, safe, lawful driving behavior, I respectfully dissent. Cervantes was driving his five-seat Chevrolet Trailblazer SUV eastbound with five passengers at 8:30 a.m. on a Wednesday morning. When border patrol drove up behind him, he changed lanes from the left lane to the right line behind a slow-moving 18-wheel semi-truck. The SUV slowed to match the truck‘s speed. The border patrol agent then pulled up alongside the left side of Cervantes‘s SUV, boxing Cervantes in—with an 18-wheel truck in front of him, a border patrol car to his left, and the road shoulder to his right. The border patrol agent honked his horn, but Cervantes kept his eyes on the road. These facts—considered together as part of the totality of the circumstances and examined charily due to the substantial distance between the stop and the border—do not support reasonable suspicion that Cervantes had smuggled aliens or contraband across the U.S.—Mexico border.
As elaborated below, the majority opinion stumbles in two important respects. First, the opinion does not give the substantial 200-mile distance of the stop from the border the paramount weight this factor warrants under our case law. 200 miles is a substantial distance that significantly undercuts the vital element of the Brignoni-Ponce test: whether the car had come from the border. Second, the majority opinion attributes suspiciousness to safe driving in the circumstances.
I. PROXIMITY TO THE BORDER IS A PARAMOUNT FACTOR, AND 200 MILES FROM THE BORDER WEIGHS HEAVILY AGAINST REASONABLE SUSPICION
We weigh the eight factors outlined by the Supreme Court in United States v. Brignoni-Ponce, 422 U.S. 873, 884-85 (1975) to determine if border patrol agents on roving patrol had reasonable suspicion to stop a vehicle. United States v. Garza, 727 F.3d 436, 443-44 (5th Cir.2013), cert. denied, — U.S. —, 134 S.Ct. 1346, 188 L.Ed.2d 350 (2014). These factors include:
- proximity to the border;
- known characteristics of the area in which the vehicle is encountered;
- usual traffic patterns on the particular road;
- the agent‘s previous experience in detecting illegal activity;
- information about recent illegal trafficking in aliens or narcotics in the area;
- particular aspects or characteristics of the vehicle;
- behavior of the driver; and
- the number, appearance, and behavior of the passengers.
United States v. Zapata-Ibarra, 212 F.3d 877, 881 (5th Cir.2000) (citing United States v. Orozco, 191 F.3d 578, 581 (5th Cir.1999)).
These factors are not entitled to equal weight. This Court has repeatedly stated that “[t]he first factor, proximity to the border, is a ‘paramount factor’ in determining reasonable suspicion.” Orozco, 191 F.3d at 581; accord Garza, 727 F.3d at 441; Zapata-Ibarra, 212 F.3d at 881. “[A] vital element of the Brignoni-Ponce test is whether the agent had ‘reason to believe that the vehicle [in question] had come from the border.’ ‘[T]his element [is] ... missing where the stop has occurred a substantial distance from the border.‘” United States v. Garcia, 732 F.2d 1221, 1223 (5th Cir.1984) (second alteration in original) (emphasis added) (quoting United States v. Lamas, 608 F.2d 547, 549 (5th Cir.1979)).
The “paramount” proximity-to-the-border factor weighs so heavily in the reasonable-suspicion analysis that, if the distance from the border is as substantial as in this case, we examine the remaining seven factors and the evidence charily, with skepti-
The majority opinion errs by not giving this paramount factor the consideration it warrants under our case law. We have been skeptical toward border patrol agents’ justification of reasonable suspicion this far from the border for good reason: Upholding a border-patrol stop on these facts—changing lanes behind a 18-wheel semi-truck, slowing to match that truck‘s speed, and not looking at a honking car to your left this far from the border—could subject millions of safe drivers to potential privacy intrusions.69 Major cities that no one would consider “border cities,” such as Los Angeles, San Antonio, and Phoenix are all closer to the U.S.—Mexico border than Penwell, Texas and this particular stretch of Interstate-20. The overwhelming majority of drivers headed eastbound on the Interstate in these metropolises have not crossed the U.S.-Mexico border during their journeys, and many—if not most—of these drivers have changed lanes behind a slow, 18-wheel semi-truck to allow a faster moving car to pass on the left.
II. Examining the EVIDENCE and REMAINING Factors Charily, as We Must, the Officers Lacked Reasonable Suspicion to Stop the Car
Examining the factors and evidence skeptically, I would hold that the border patrol agents lacked reasonable suspicion to stop the car. Cervantes was driving eastbound on Interstate-20. The officers checked the car‘s registration before stopping the car and determined that the car was registered in Morton, Texas. Thus, the direction that the car was travelling would have taken the car toward Morton, which is north of Odessa. This fact undercuts the agents’ basis for the stop. See Olivares-Pacheco, 633 F.3d at 404-05 (rejecting the agents’ justification in part because “the vehicle was registered ... in the greater Dallas area, wholly consistent with the truck‘s direction“). Moreover, the stop occurred at about 8:30 a.m. on a Wednesday, not in the dark of night. This fact also cuts against reasonable suspicion. See id. at 405 (rejecting the agents’ justification in part because the stop “occurred on a Monday at 10:30 A.M., not in the dark of night“). Cervantes‘s SUV also did not appear dirty or covered in brush—which would have been consistent with having “gone off road“—a fact that also weighs against suspicion.
There are facts that support the border patrol agents’ suspicion in this case as well. The agents testified that Cervantes‘s SUV was driving on an alien-smuggling route and appearing to carry a heavy load. The SUV contained one driver and five passengers, even though there were only enough seatbelts to accommodate one driver and four passengers (one passenger was seated in the cargo area). Four of the occupants appeared to be “dirty.” From this, the experienced officers—Agent Collier has sixteen-plus years’ experience as a border patrol agent, and Agent Ramirez has eleven-years’ experience—suspected illegal alien smuggling.70
Finally, although in the past this Court has accepted testimony that this part of I-20 is an alien-smuggling corridor as supportive of reasonable suspicion, we have more recently given this factor minimal weight on this particular stretch of highway. Id. We reasoned that “the overwhelming majority of the traffic on this stretch of I-20 is unquestionably legal and the government has not shown that aliens are more or less likely to use Interstates than back roads.” Id. The same applies here because, as in Olivares-Pacheco, the Government does not point to evidence in this case establishing that alien smugglers are more likely to use Interstates than backroads.
A. The Driving Behavior Was Lawful and Safe, Not Suspicious
The majority opinion errs by ascribing suspiciousness to safe and lawful driving behavior. Of course, as the majority opinion notes, “[f]actors that ordinarily constitute innocent behavior may provide a composite picture sufficient to raise reasonable suspicion in the minds of experienced officers.” Olivares-Pacheco, 633 F.3d at 402 (internal quotation marks omitted).72 And the Supreme Court has rejected a “divide-and-conquer analysis” for assessing reasonable suspicion, noting that factors which by themselves may be “quite consistent with innocent travel” may collectively amount to reasonable suspicion. United States v. Arvizu, 534 U.S. 266, 274-75 (2002) (quoting, in a parenthetical, United States v. Sokolow, 490 U.S. 1, 9 (1989)).
But we have also held that facts that are consistent with alien smuggling do not provide reasonable suspicion if those factual conditions also occur even more frequently in the law-abiding public. United States v. Rangel-Portillo, 586 F.3d 376, 381 (5th
We stated that “there is no rational reason to conclude that law-abiding citizens are less likely to wear their seatbelts or exit a Wal-Mart parking lot sans shopping bags” than someone smuggling aliens or contraband. Id. at 381. We rejected the Government‘s invitation to defer to the agent‘s expertise in recognizing reasonably suspicious behavior and explained: “Individuals do not shed their constitutional rights with the click of a seatbelt.” Id.
1. Allowing a Car to Pass on the Left Is Not Suspicious
Just as individuals do not shed their constitutional rights with the click of a seatbelt, individuals do not also shed their constitutional rights by changing lanes on a two-lane highway to allow a fast-approaching car to pass on the left.73 Agent Ramirez testified that he rapidly accelerated his patrol car to catch up to Cervantes. In response to a fast approaching car in the left lane, Cervantes naturally changed lanes to the right lane and slowed down to match speed with a slow moving 18-wheel semi-truck. As in Rangel-Portillo, “there is no rational reason to conclude that law-abiding citizens are less likely” to change lanes in this manner than someone smuggling aliens or contraband. See 586 F.3d at 381.
2. Failing to Acknowledge Horn Honking Does Not Create Reasonable Suspicion in These Circumstances
The border patrol agents also attempt to justify their suspicion by pointing out that, after they pulled into the left lane beside the SUV—boxing in Cervantes with the big-rig truck close in front—they honked their horn six times and Cervantes did not look over.
The horn honking does not contribute to reasonable suspicion. This does not appear to be a technique these agents have found, based on their training and experience, to be indicative of criminal activity afoot. Agent Collier could not say whether it is “unusual for someone to ignore ... honking of a car.” On cross-examination, Agent Collier admitted: “[Border Patrol] have not used [horn honking] a whole bunch.... I have not honked the horn
3. Context Matters in Assessing the Totality of the Circumstances
Deceleration and failure to acknowledge a law-enforcement vehicle may reasonably be suspicious in some circumstances—but the context matters. Courts have agreed with law enforcement that such behavior is suspicious on secluded roads, but not necessarily on busy highways. See, e.g., Arvizu, 534 U.S. at 275-76 (“We think it quite reasonable that a driver‘s slowing down, stiffening of posture, and failure to acknowledge a sighted law enforcement officer might well be unremarkable in one instance (such as a busy San Francisco highway) while quite unusual in another (such as a remote portion of rural southeastern Arizona).” (emphasis added)). Here, there is no evidence in the record that I-20 outside of Midland—Odessa during rush hour on a Monday morning is similar to a remote portion of rural southeastern Arizona. On the contrary, the agents testified that during this time of day, this portion of I-20 experiences heavy traffic from oil-field workers headed to work.
The totality of the circumstances here—a two-lane highway with a fast-approaching car in the left lane and a slow-moving 18-wheel semi-truck in the right lane—indicate that Cervantes was driving safely and not suspiciously. The majority opinion errs by accepting the border patrol agents’ attempt to justify reasonable suspicion based on Cervantes‘s driving behavior in isolation, even though law-abiding citizens are just as likely to drive as Cervantes did in these circumstances. See Rangel-Portillo, 586 F.3d at 381.
B. Case Law Illustrates Why Reasonable Suspicion Is Lacking Here
This case is materially indistinguishable from Olivares-Pacheco. As in this case, in Olivares-Pacheco, we assessed a border patrol stop of a vehicle travelling on the same stretch of highway, in the same direction, and at the same time of a weekday. Id. at 401-02. We explained that “the fact that Olivares-Pacheco was nowhere near the border makes our decision a much easier one. Indeed, of the cases in which the vehicle was stopped far from the border, the articulated reasons for suspicion were far greater than in the instant case.” Id. at 406, 409 (referring to Orozco and Morales among other cases). Not only did we reverse the district court‘s denial of the defendant‘s motion to suppress, we said the case was not particularly close: “We are satisfied that, if we were to side with the government in this case and affirm the district court‘s denial of the defendant‘s motion to suppress, we would be doing so on the barest articulation of facts that we have ever credited as constituting reasonable suspicion.” Id. at 409 (emphasis added).
Moreover, the majority opinion‘s reliance on Orozco and United States v. Morales, 191 F.3d 602 (5th Cir.1999) is misplaced, and the striking differences between those cases and this one illustrate why the agents lacked reasonable suspicion here. In both cases, the circumstances were far more suspicious than this case. In Orozco, unlike in this case, the arresting officer testified that he had personally apprehended twenty loads of illegal aliens in the same area in the previous five months and knew that a majority of the transporters of aliens passed through this particular stretch of I-20 on weekends between 9 a.m. and 10 a.m.—precisely the same time that the defendant was stopped. 191 F.3d at 582. The agent testified that he “noticed that the truck bed was completely covered by a tarp,” and that “the spare tire was placed in the back seat of the truck as if to make room for a large amount of cargo in the bed of the truck,” both of which are “common technique[s] employed by smugglers to hide illegal aliens.” Id. Facts like these are entirely missing in this case. Further, the observed driving behavior in Orozco was objectively erratic: “the truck was weaving and bouncing on the road.” Id. And unlike the agents’ vague testimony of “sagging in the rear” in this case, the agents in Orozco specifically testified that they observed “that the tires were under inflated—suggesting the truck bed was carrying a heavy cargo.” Id.
Morales is also a far cry from this case. The vehicle in Morales bore the hallmarks of an alien-smuggling truck: the agent testified that “[t]he pickup truck had a fiberglass cover over the truck bed,” and that “the cover was almost flush with the top of the sides around the bed.” 191 F.3d at 605, 607. The border patrol agent further testified that, based on his experience, “he knew that approximately 30 persons could be hidden under the cover.” Id. at 607. Again, unlike in this case, the driving behavior was objectively erratic: the truck was observed “weaving back and forth across the [lane] line.” Id. at 605. In contrast to the vague testimony in this case of “sagging,” the Government developed record evidence of particular articulable facts to support their suspicion. The border patrol agent in Morales testified that he ingeniously positioned himself at a particular spot near a bump in the roadway. Id. at 606-07. The agent testified that he had “encountered ways that [smugglers] have tried to hide [a heavy load]. They put 2X4s in the springs and so on and so forth. But when they do that, the vehicle hits [the bump] solid. It doesn‘t bounce.” Id. at 607. The border patrol agent observed this phenomenon and noted that the tires were underinflated, id. at 605, and he articulated these observed facts at the suppression hearing. We credited that the agent had drawn “rational inferences from those facts“—that the truck was heavily loaded—and “was able to form the requisite suspicion” to lawfully stop the car. Id. at 607.
This case is perhaps a closer one than Olivares-Pacheco—due to the agents’ observation that the passengers appeared dirty and the SUV was “sagging in the
III. CONCLUSION
For the foregoing reasons, I would hold that the border patrol agents lacked reasonable suspicion to stop Cervantes‘s car, and I respectfully dissent.
UNITED STATES of America, Plaintiff-Appellee, v. Albert GUZMAN, Defendant-Appellant.
No. 14-10709.
United States Court of Appeals, Fifth Circuit.
Aug. 18, 2015.
James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney‘s Office, Dallas, TX, for Plaintiff-Appellee.
Kevin Joel Page, Federal Public Defender‘s Office, Dallas, TX, for Defendant-Appellant.
Before REAVLEY, OWEN, and HIGGINSON, Circuit Judges.
ON PETITION FOR PANEL REHEARING
PER CURIAM:
Defendant-Appellant Albert Guzman has filed a petition for panel rehearing, in which he argues for the first time that the district court erred in sentencing him under the Armed Career Criminal Act (“ACCA“),
Guzman asks the panel to rehear the case to decide whether his sentence is “erroneous and/or illegal in light of the Supreme Court‘s decision in Johnson v. United States,” — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which invalidated the “residual clause” of the ACCA and which was decided after the panel issued the decision in this case.1