*3 patrol Agent car around so that he GARZA, Before EMILIO M. look. get Mizell could better DENNIS, BENAVIDES Circuit around, Judges. patrol car turning Before Trooper in his rearview mirror Flori saw BENAVIDES, Judge: lights the Buick’s brake come on. Flori taillight had a hole Lopez-Valdez (“Lopez”) ap- right Luz observed that the Sonia taillight will- in its lens and that peals from her criminal conviction for cover Lopez light.2 Agent emitted both red and white fully transporting illegal aliens. in Mizell saw that the Buick had a dam- contends that the district court erred also aged inspection Later revealed denying taillight. her motion to certain rectangular-shaped piece gathered inch-long, after law enforcement that an taillight missing. of the lens was The bulb officers her car near the U.S.- part intact red lens. jurisdic- was behind the Mexiean border. This Court has (both Essentially, from the Agent assigned with 2. all the witnesses Mizell had been to ride Defense) joint investigatory part of a effort con- Flori as Government and the at trial brake., Depart- U.S. Patrol and the Texas Border light emitted both a ceded that Safety ment of Public to detect narcotics traf- light. white and a red smuggling. ficking and alien stopped the Buick be- law in Texas that a broken lens Trooper causing Flori taillight that a taillight cause he believed broken to emit both red and white Trooper a traffic infraction. does not constitute an offense and as constituted such patrol flashing Flori turned on his car’s could not serve as the basis for a traffic stopped. stop. Additionally, the Buick As Flori talked lights; she contended that the Agent pas- Mizell asked the facts known to the officers Lopez, give with did not citizenship status. sengers about their rise to reasonable that she was did not docu- illegal activity. Most of the have involved The Govern- ment, hand, arrested They argued ments with them. were on the other read their Miranda rights. totality justified of the circumstances rights. also arrested and advised of her initial and that Flori’s conduct *4 to a good-faith amounted view of Texas Lopez transported to border traffic laws concerning taillights. broken patrol Springs, station Carrizo The good- Government contended this in a processed placed where she was and except faith would view from exclusion the Mar- Agent cell. Border Patrol Eduardo gathered subsequent stop. to the ques- Lopez tinez removed from the cell to room, interrogation tion her. Once rightly The district court decided that her, Spanish, in English he informed and suppression motion turned on the law- rights concerning remaining of her silent stop. fulness of the vehicular The court Lopez and receiving assistance counsel. taillight found that the on Buick Lopez’s signed indicating forms that she under- light. emitted both white and red The rights, stood her and she answered the court found also that officers Flori and questions. interroga- officer’s After the Mizell did not manufacture the circum- finished, Lopez signed typed tion was a stances under which Flori effectuated the of her In the statement answers. state- that, stop. The court noted to the extent ment, Lopez admitted she knew Lopez’s vehicle had been illegal in her car were aliens and violation, Vicknair would a require traffic paid that she was to drive them to Carrizo suppress to granted the motion to be be- Springs. cause, Texas, damaged taillight a emits both red and white could not 21, 1996, Lopez was indicted on August justify stop. a traffic not court did in the District United States Court for the attempt good-faith exception to carve out a Western District of Texas for two counts exclusionary to the rule. Instead the dis- willfully transporting illegal aliens. Be- suspi- court relied on the trict trial, suppress fore she moved to certain patrol governs roving cion test that evidence, including post-arrest her state- that, all stops, given and concluded testimony, ments and witness on the basis in possession facts and circumstances illegal that it was the fruit of an detention.3 trooper, and agent both the federal state Lopez trial. right jury waived her articulable there were sufficient facts The district court carried the motion to suspicion justifying raise suppress with the trial. bench stop. initial trial, Lopez’s At the end of the district arguments court heard on the motion to The district court denied motion on Vicknair v. Lopez guilty as suppress. Lopez, relying and found State, (Tex.Crim.App.1986, charged. Lopez years’ pro- received five S.W.2d pet.), that it is well bation. asserted established trial, illegally. They had ar- 3. At the Government introduced the United States woman, Lopez, post-arrest testimony by ranged entry with a not statements as well as guided had crossed the Rio Grande river Jose Louis Perez Cordero Roberto Manri- crossing, they quez, Lopez's by a man. waited until who had been After picked up they Lopez had entered them in her Buick. car. Both men testified that Cir.1975) in a presence (explaining
II. Discussion
“with-
place a citizen
border area does not
en-
argues that
law
appeal,
On
zone”). A border
in a deconstitutionalized
the reasonable
forcement officers lacked
a vehicle
may briefly detain
patrol agent
immigra-
necessary to
specific
agent
if
is “aware
vehicle;
that a broken
stop of her
tion
facts,
in-
rational
together with
articulable
probable cause for
provide
taillight did
facts,
reasonably
those
ferences from
stop;
that a
effect a traffic
police
in-
suspicion”
the vehicle is
warrant
trooper’s
belief
DPS
erroneous
Texas
illegal
volved
activities.
in-
a traffic
taillight constituted
a broken
873, 884, 95
Brignoni-Ponce,
422 U.S.
vehicular
not excuse the
fraction did
(1975);
see also
L.Ed.2d 607
S.Ct.
exception to
the good-faith
under
search
Inocencio,
that,
probable cause requirement;
assessing
objec-
Amendment
with the Fourth
in accordance
stop,
the review-
reasonableness
tive
and sei-
against illegal searches
prohibition
pic-
the “whole
court must
ing
consider
zures,
stop and detention of
Cortez,
ture.” United States
all
suppression of
evi-
Lopez requires the
411, 417-18,
L.Ed.2d 621
101 S.Ct.
stop.
subsequent
to the
acquired
dence
*5
(1981).
pic-
comprise that
Several factors
that the district
argues
The Government
(1)
to the bor-
proximity
ture:
the area’s
good-
concluded that the
improperly
court
der,
including
the vehicle
rule
exception
exclusionary
to the
faith
(2)
border;
previ-
recently
the
the
crossed
inapplicable and that either reasonable
with
experience
arresting agents
of the
ous
justi-
exception
suspicion
good-faith
or the
(3)
activity;
known characteristics
criminal
stop.
fied the vehicular
(4)
area;
patterns
the
the usual traffic
of
(5)
road;
information about recent
of that
A.
in
in
or narcotics
trafficking
aliens
(6)
of a mo
reviewing
area;
In
the denial
the
of the vehicle’s
behavior
(7)
vehicle;
purely
court’s
suppress,
driver;
tion to
district
appearance
(8)
for clear er
findings
number,
are
appearance,
factual
reviewed
and be-
Nichols,
v.
142
States
any
Brignoni-
ror. See United
See
passengers.
havior
(5th
857,
Ponce,
884,
Its con
F.3d
864-65
422
at
against the interest exercising his or her to be let alone B. Nichols, at liberty. 142 F.3d 861-62. See stopped may A vehicle not be single Brignoni-Ponce Although on a no traveling it is road simply because Inocencio, 40 F.3d controlling, factor is border. See see near the U.S.-Mexican 47, 49-52, prox physical 99 at we have considered Brown (1979) be a “vital element” (noting imity to the border 357 S.Ct. 61 L.Ed.2d totality circum of the high-crime analyzing in a area does presence (citation Nichols, F.3d at 867 suspicion); stances. provide reasonble not omitted).4 (5th Newell, relies on Government 506 F.2d States consider, conclu- although see 142 at 866-68—its important F.3d It is note that — stop justified rested not on prox- did that Nichols’ sion Nichols Court observe alone, totality of the proximity but on the imity fact to to the border was essential United, Cardona, significance kneeling on (5th Cir.1992) (finding down). had a agents Here, floor with their heads to conclude that the record contains no evidence that the pas- originated defendant’s vehicle had at the sengers engaged evasive or unusual be- border in of the number of towns havior. Additionally, the record contains road, along the intersecting number of passengers appeared evidence that the roads, and the number of miles from the unkempt Therefore, or unwashed. we find border), when, argues such as presence that the mere of several here, relatively occurs close to the Lopez’s Buick does not alone raise a rea- (20 miles) (FM 2644) and the road suspicion; sonable Fifth precedent directly comes from El Indio on the bor- requires that something more be shown. der-—El Indio is the town south of Second, Lopez’s presence FMon where vehicle was is—it give does not rise to a reasonable inference Lopez origi- reasonable to conclude that wrongdoing. Although there was testi- journey nated her at the border. mony that FM 2644 could be used to avoid agree Even were we to with the Govern- an immigration checkpoint, the Govern- ment Lopez originated and assume that ment did not at trial any introduce evi- border, journey her at factor dence that it was unusual to see a car on dispositive “alone [is] the reasonable FM 2644 at 8:30 in the morning. The suspicion analysis.” United States v. Pa- notes, Appellant correctly contrary, to the checo, Cir.1980); 617 F.2d see that the record showed that a resident of Diaz, also United States v. El Indio would FM if take she were (5th Cir.1992) (concluding pres- heading larger to the towns of Carrizo ence on the border is insufficient for a *6 Springs Crystal or City. Appellant addi- reasonableness). finding Brigno- Other areas, tionally points poorer out that in ni-Ponce factors must be considered. The many such as communities the along U.S.- Government identifies two additional facts border, people Mexican likely are more justify pres- it contends stop: the the share rides to work or to the larger towns passengers ence of numerous in and cities. car and fact that the the road on which Lopez traveling was could be used to cir- sum, facts seem show cumvent an immigration checkpoint. Lopez driving was an older-model mid-size anywhere with eight sedan from six to
A review of Fifth
authority,
passengers
visible
20
from the
about miles
however, reveals that these facts are insuf
border. We note that
the Government
First,
justify
stop.
ficient to
in cases
failed to
at trial
introduce
evidence of oth-
numerosity
passengers
where the
con
Brignoni-Ponce
er
In particular,
factors.
tributed
a finding
suspi
of reasonable
the record
no informa-
cion,
before us contains
consistently
pres
we have
found the
patrol agents’
tion about the border
rele-
ence of additional factors indicative of
see,
vant experience,
e.g., United States v.
See,
wrongdoing.
e.g., Brignoni-Ponce,
(5th
299,
Ortega-Serrano,
885,
788 F.2d
302
422
(finding,
U.S. at
at 866 leeway to conduct broad sec- ment for 30 officers intersection sat at the driver wheth- regardless of and seizures he searches onds, erratically as watched drove then corresponds to mirror); subjective intent er their in rear view patrol a vehicle actions. for their justification appear- the legal the Buick’s no evidence that Miller, 146 F.3d see, v. e.g., United See smuggling, suggested ance (5th Cir.1998). explained have Chavez-Villarreal, We 3 F.3d is that leeway” Cir.1993) “flip-side of that (5th testi- (noting agent’s objectively justification must be “the legal favored Subur- smugglers mony that alien Id.; see also Goodwin at bans); grounded.” F.2d Ortega-Serrano, Cir.1998) Johnson, presented (observing that no evidence (“So infraction that a traffic law long of car fre- as type that a Camaro was stop objectively justified have smuggling or that would in encountered quently police place, the fact that for had taken been modified car had somehow stop for a rea- may made the officer have smuggling). of the traffic than the occurrence son other cannot proximity'to Because purposes for infraction is irrelevant stop, finding of reasonable justify a alone comparable Texas Fourth Amendment have would to be suspicion in this case law.”). Miller, 146 In United States based, upon the number of large part, (5th Cir.1998), we held already As dis- car. infraction that supposed traffic where the cussed, however, precedent Fifth Circuit a vehicular the basis for formed numer- presence mere indicates that the law, there not a violation state fact was not raise a reason- a car does ous probable cause objective basis in the are we suspicion. willing able Nor (con- stop. See id. at 279 justifying the number assign magic some instant case to a vehicle cluding operating that a driver suspicion would point at which turn- signal left turn without flashing Thus, showing by the Gov- arise. absent violate Texas changing lanes did not ing or Brignoni-Ponce fac- that other ernment probable cause traffic law and thus that no favor, hold that a we weigh tors its stop). the traffic existed to near the traveling on road midsize sedan *7 many as with as U.S.-Mexican border case, In this the Government not rise passengers give visible does eight Appel Trooper stopped argues that Flori suspicion of activi- unlawful to reasonable upon good-faith be lant’s Buick based his ty- a taillight constituted that the broken lief Trans § of the Texas 547.303 violation C. belief, Trooper Flori’s portation Code. however, matter, state was incorrect. a the deci “As general authority to police do not have officers stop an automobile is reasonable sion to taillight lenses stop to vehicles with cracked probable police have cause where emit “permit[ light some to be ] oc white a traffic violation has believe that State, States, light.” ted with red Vicknair 517 U.S. curred.” Whren United 1769, at 187.5 L.Ed.2d 89 S.W.2d S.Ct. (1,000) feet to a of one thousand Vicknair former distance 5. The statute at issue in 6701d, 6701d, § art. 111. rear Tex. Rev.Civ.Stat. § [.]” art. Revised Statute Texas Civil 670Id, stopped, time that At the provided pertinent part that That statute Transpor- § as Texas 111 had been recodified equipped ... be "every motor vehicle shall 547.322(d). § tation Code (2) taillamps on the with at least two mounted rear, argued required appeal lighted in Sec- The Government on as when Lopez’s vehicle Trooper based [requiring lights half an Flori on from tion 109 the broken tail- good-faith belief that an hour sun- on after to half before hour sunset 547.303, § light a rise], plainly violation light from constituted shall emit red visible a Generally, illegal the fruits of Accordingly, sive. we hold that Flori’s searches and seizures are un inadmissible pass actions do not muster under the good- exclusionary der the rule. See United faith exception to the exclusionary rule. Ramirez-Lujan, States v. (5th Cir.1992). But good-faith ex III. Conclusion ception the exclusionary to rule allows the reasons, For the above
admission
the fruits of some
we
conclude
stops.
doctrine,
id.
district court
See
Under this
erred in denying
we
Appel-
have held that “evidence is not
lant’s
sup
to be
motion to suppress her custodial
pressed ... where it is
by
discovered
offi
statements as well as the statements of the
cers in the course of actions
are taken
two
witnesses who were
in her
reasonable,
good-faith
and in the
though
car. We therefore reverse and remand for
mistaken,
they
belief that
are authorized.”
further proceedings consistent herewith.
United States v. De Leon-Reyna, 930 F.2d
REVERSE and REMAND.
(5th Cir.1991) (en
banc).
Trooper
stopped Lopez
Flori
in 1996.
GARZA,
EMILIO M.
Judge,
Vicknair,
years
Ten
after
no well-trained
dissenting:
police officer
reasonably
Texas
could
be-
I agree with
majority opinion
that white
appearing
lieve
with red
Lopez’s
success of
motion to
light through a cracked red taillight lens
evidence depends on whether the officers
a violation of traffic
constituted
law.6
(cid:127)
had
suspicion
stop
Lopez’s
Lopez rightly points out that this
vehicle.
v. Georgia,
See Reid
leery
Court should
be
extending
438, 440,
2752, 2754,
100 S.Ct.
65 L.Ed.2d
good-faith exception
appeal.
to this
Under
(1980)
(“[A]ny curtailment of a per-
Whren,
the general rule established in
liberty by
police
son’s
sup-
must be
traffic infraction
stop
can
even
ported at
least
a reasonable and articu-
police
where the
officer
stop
made the
for
suspicion
lable
person
seized is
a reason other than the occurrence of the
engaged
activity.”). However,
in criminal
traffic infraction. See
Goodwin
John
I disagree that the officers lacked reason-
son,
But
suspicion
able
stop Lopez’s
vehicle. Ac-
if officers are allowed
vehicles
cordingly, I dissent.
upon
subjective
based
their
belief that
traffic
have
laws
been violated even
court
Lopez’s
where
district
denied
motion
has,
fact, occurred,
no such
suppress,
violation
finding
officers had
potential for abuse of traffic
infractions as
vehicle
pretext
effecting stops
bound was
seems
criminal activity.
involved
When
*8
less and the
privacy rights
costs to
exces-
reviewing
ruling,
such a
we review a dis-
547.322(d).
§
(citations omitted). Here,
Whether Flori
believed
Flori's actions
547.322(d)
§
was in violation of
or
upon any
were not based
circumstances ex-
§
consequence.
is of
require-
547.303
The
personal
trinsic to
own
observations. Flo-
§
embodied
ment
in
547.303
at
existed
the
ri
thought
the Buick because he
670Id,
of Vicknair. The
time
former art.
taillight
the vehicle’s broken
violated Texas
115(b)
§
distinguished
simply
lamp
rear
re-
law.
lamps
flectors from the reflectors on other
We need
and do
not make a determina-
may be
amber or white.
upon any
tion in the
case
instant
based
extrin-
n
case,
sic circumstance
Nichols,
limitation. Rather we
6.
aIn
recent
United States v.
ground
(5th
analysis
Cir.1998),
language
our
in the
of
en
trict court’s Moreover, on checkpoint checkpoint. United standard.” erroneous clearly at the time (5th operational 277 was Highway Inocencio, 40 F.3d v. States a road fact that stopped. The Lopez was Cir.1994). derived of law conclusions “The checkpoint is immigration fact, an circumvents of such findings court’s from a district suspi- establishing to relevant suspicion existed a reasonable as whether Aldaco, See, v. States e.g., United novo.” cion. vehicle, de are reviewed stop a to (5th Cir.1999); Inocen- F.3d Id. (5th Cir.1994); cio, 40 F.3d at clear has made Supreme Court The F.2d Ramirez-Lujan, v. States taken into may be of factors “any number (5th Mizell Finally, is rea- there deciding in whether account people” “a of were that there lot testified car” near stop a suspicion sonable Buick, Lopez’s in four-door Brignoni-Ponce, border. United Such “piled there.” passengers were S.Ct/2674, 2582, 45 873, 884, 95 “an ex- saw that Mizell testimony shows (1975). include: These factors L.Ed.2d in Lo- passengers” of traordinary number (2) area; (1) of the characteristics Jones, Ac- 149 F.3d at pez’s car. (3) border; the usual proximity Mizell, of the number cording (4) road; particular patterns on traffic “unusual.” the car was (5) traffic; with alien previous experience recent a reason- information about facts created These articulable (6) area; be- the driver’s Lopez’s in the vehicle was crossings suspicion that able (8) itself; (7) havior; of the vehicle Ac- aspects illegal aliens. transporting involved (9) whether the appearance; not err the district court did cordingly, vehicle’s of extraordinary number vehicle has officers’ finding (10) are I whether passengers; constitutionally permissible. vehicle (11) hide; appear- attempting district court’s denial uphold would passengers. See the driver and affirm her ance of Lopez’s motion to Jones, 149 F.3d conviction. Cir.1998) (5th Brignoni-Ponce, (citing 2582). A 884-85, at 95 S.Ct. at
U.S. suspicion into reasonable inquiry
court’s any one analysis to an not limited
“is Inocencio, at 722. 40 F.3d
factor.”
“Rather, finding of reasonable the cir- ‘totality on the
must be based agent and known to the cumstances America, UNITED STATES cir- evaluating such agent’s experience Plaintiff-Appellee, ” Jones, at 367 cumstances.’ Casteneda, 951 States v. (quoting United CLARK, Defendant-Appellant. Cir.1992)). Victor 44, 47 known totality of the circumstances 98-50817. No. to a rise Agent gave Mizell to Federal *9 Appeals, Court in- Lopez was suspicion that Fifth Circuit. Mi- illegal aliens. transporting volved several of testimony addressed zell’s 3, 1999. June testified factors. Mizell Brignoni-Ponce 2644, twenty Lopez on that he FM FM border. from U.S.-Mexico
miles Indio on the directly from El
2644 comes was the FM 2644 border.
U.S.-Mexico