IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-40458
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO VILLARREAL-ALVARADO,
Defendant-Appellant.
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Appeal from the United States District Court for the
Southern District of Texas
(CR-B-95-311-01)
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April 8, 1997
Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.
PER CURIAM:*
This appeal presents the question whether the United States
Border Patrol Agent who stopped the appellant’s automobile, and
subsequently found over 300 pounds of marijuana in the trunk, was
justified in making the stop based upon a reasonable suspicion that
the automobile was engaged in illegal activity. After reading the
briefs submitted to this court and reviewing the record, we
conclude that the stop was lawful and affirm the conviction.
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
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I
The appellant was traveling north on Highway 77 in Rancho
Viejo, Texas--approximately 10 miles from the Mexican border--
shortly after midnight, when he was stopped by a United States
Border Patrol Agent. At the time of the stop, the appellant was
driving a 1984 Oldsmobile with Wisconsin tags and was traveling
within the posted speed limit for the area.
Upon making the stop, the agent asked the appellant if he
would open the trunk of the car, which the agent noted appeared to
be heavily loaded. The appellant consented, then, before opening
the trunk admitted to the agent that the trunk contained drugs.
The agent arrested the appellant and searched the trunk, finding
over 300 pounds of marijuana.
The appellant was charged with conspiracy and possession with
intent to distribute more than 100 kilograms of marijuana. The
appellant moved to suppress the evidence, contending that the stop
was not supported by a reasonable suspicion. The district court
denied the motion to suppress, and the appellant subsequently
entered into a plea agreement whereby he pleaded guilty to the
possession with intent to distribute charge in exchange for a
dismissal of the conspiracy charge and a government recommendation
that he be sentenced to a term near the minimum allowed under the
guidelines. The agreement was entered without prejudice to the
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appellant’s right to appeal the denial of his motion to suppress.
The appellant was sentenced to a term of 37 months imprisonment, to
be followed by 3 years of supervised release.
The appellant now appeals the denial of his motion to
suppress.
II
A United States Border Patrol Agent on roving patrol is
justified in stopping a vehicle if he reasonably suspects, based on
specific articulable facts together with rational inferences from
the facts, that the vehicle might be engaged in illegal activity.
United States v. Castenedo, 951 F.2d 44, 46 (5th Cir. 1992) (citing
United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975)). The
existence of reasonable suspicion is determined based upon the
totality of the circumstances known to the agent at the time of the
stop and the agent’s experience in evaluating such circumstances.
Id. at 47. Factors that an agent may consider when deciding
whether reasonable suspicion justifies a stop include: (1) the
characteristics of the area where the car is located; (2) the
proximity to the border; (3) the ordinary traffic patterns of the
road or highway; (4) the agent’s previous experience with alien
traffic; (5) information regarding illegal border crossings in the
area; (6) the driver’s behavior; (7) the vehicle’s appearance; and
(8) the number, appearance and actions of the passengers.
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Brignoni-Ponce, 422 U.S. at 885; United States v. Melendez-
Gonzalez, 727 F.2d 407, 410-11 (5th Cir. 1984). We review the
district court’s finding of reasonable suspicion de novo.
Casteneda, 951 F.2d at 47.
The appellant contends that the totality of the circumstances
did not give rise to a reasonable suspicion of wrongdoing such that
the agent was justified in stopping his automobile. We disagree.
The agent responsible for the stop testified that the rear of
the appellant’s car appeared to be heavily loaded, as the rear
lights were almost touching the ground. In Brignoni-Ponce, the
Supreme Court expressly noted that “[a]spects of the vehicle itself
may justify suspicion,” including an appearance of being heavily
loaded. Brignoni-Ponce, 422 U.S. at 885.
Also in support of the stop, the government points out that
Highway 77 is a road commonly used by smugglers bringing drugs or
illegal immigrants into the country. Although “merely being on a
road frequently used for illegal activity is insufficient to
justify an investigative stop,” United States v. Diaz, 977 F.2d
163, 165 (5th Cir. 1992), this is clearly one of the factors
contemplated by Brignoni-Ponce and weighs in favor of the validity
of the stop. The same is true of the proximity of the stop to the
Mexican border. The appellant was only ten miles from the border
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at the time of the stop, obviously a factor to be considered in
analyzing the presence of reasonable suspicion of illegal activity.
Furthermore, the appellant was driving an older model car with
out-of-state license plates. The agent stated that this aroused
his suspicion because he knew, from his experience with the Border
Patrol, that smugglers often drove older cars, because they were
more affordable. Additionally, the agent stated that migrant
workers in Texas often traveled from the Northern United States and
sold their cars cheaply, thus, suggesting that the car in question
might have been purchased for very little money by someone involved
in smuggling activities. This factor weighs slightly in favor of
the reasonableness of the stop, primarily because it is credible in
the light of the agent’s three years of experience with the border
patrol.
In support of its finding of reasonable suspicion, the
district court also noted that the car was traveling well below the
posted speed limit and that the stop occurred just after midnight.
It is unclear to us that either factor lends support to the
reasonableness of the stop, because there is no evidence that
either factor is characteristic of smuggling activities.
III
In sum, we conclude that the totality of the circumstances
support a finding that the agent had reasonable suspicion to stop
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the appellant’s automobile. The appellant was ten miles north of
the Mexican border on a road known to be a route commonly used by
smugglers and was driving an automobile that appeared heavily
loaded and that was of a type frequently identified with smuggling
activities. All of these factors, in combination, and the
inferences that can reasonably be drawn from them support the
legality of the stop. The decision of the district court denying
the appellant’s motion to suppress is therefore
A F F I R M E D.
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