UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 97-50787
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ANGEL OVIEDO-ROSALES,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(97-CR-74-1)
July 17, 1998
Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
The issue in this roving Border Patrol vehicle-stop-and-drug-
seizure-case is whether, as required by United States v. Brignoni-
Ponce, 422 U.S. 873, 884 (1975), the Border Patrol Agents were
aware of specific articulable facts reasonably warranting suspicion
that Oviedo-Rosales was engaged in illegal activity. Because the
Agents had such suspicion, we AFFIRM.
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR. R.
47.5.4.
I.
On 11 April 1997, United States Border Patrol Agents, Clanton
and Banegas, were conducting an early morning roving patrol in the
Marathon, Texas, area. At approximately 4:30 a.m., they were
notified that sensors placed on Highway 2627, which leads directly
from the United States-Mexico border crossing at La Linda, Mexico,
had been activated by two vehicles traveling northwesterly. Sensors
then indicated that the two vehicles had turned north onto Highway
385.
Consequently, the Agents positioned their vehicle
approximately 28 miles north of the junction of Highways 2627 and
385. Around 5:00 a.m., a vehicle approached their location; with
their headlights illuminating the vehicle, the Agents were able to
observe two Hispanic males in it. After following it, and
ascertaining that it was registered to a female from San Antonio,
the Agents stopped the vehicle for an immigration check.
During the stop, a Border Patrol K-9 searched the exterior of
the vehicle and alerted to possible narcotics. But, the ensuing
search did not reveal any illegal drugs, and the men were allowed
to leave.
At approximately 5:30 a.m., very shortly after the search of
the first vehicle was completed, a second vehicle approached. By
illuminating the vehicle with their headlights, the Agents observed
an Hispanic male (defendant Oviedo-Rosales) in it. After following
it, and ascertaining that it, like the first vehicle, was
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registered to an individual from San Antonio, the vehicle was
stopped for an immigration check.
Upon approaching the vehicle, Agent Clanton illuminated the
back seat with his flashlight and saw several bundles wrapped in
brown tape. (The bundles were later confirmed to contain 508.32
pounds of marijuana.) Oviedo-Rosales was arrested, and later
charged with one count of possession with intent to distribute
marijuana, in violation of 21 U.S.C. § 841(a)(1).
Two months after the arrest, Oviedo-Rosales moved to suppress,
contending that the evidence was the result of an illegal
detention. At the suppression hearing, Agent Clanton testified
that he was an 18-year veteran of the Border Patrol, having worked
in the area of the stop his entire career; that, one week before
this stop, he had seized 719 pounds of marijuana and, approximately
one month prior, another 336 pounds, with both seizures being on
the same road on which he stopped Oviedo-Rosales; and that, the
night before the stop in issue, illegal aliens were apprehended
entering the United States along the same road. Moreover, the
Agent testified that traffic patterns in the area of the stop are
usually very light for the early morning hour; that he saw no
southbound traffic on Highway 385; that the only two vehicles
traveling northbound were those he stopped; that the highway is a
known conduit for illegal aliens entering the United States; that
usually, he recognizes the locals from the area; and that, for the
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stop in issue, he did not recognize either the vehicles or their
occupants.
The Agent testified further that a significant factor he
considered when deciding to stop Oviedo-Rosales was the possibility
of a “lead-car/load-car” arrangement, whereby the first vehicle
(lead-car) scouts the highway for law enforcement, and then
communicates to the second, drug-carrying vehicle (load-car)
whether it is safe to travel. The Agent testified that two
vehicles traveling in tandem in the pre-dawn hours could be an
indication of such an arrangement, and that the K-9 alerting to the
first vehicle could have been an indication of a lead-car/load-car
arrangement, because a scent of marijuana could be on the first
vehicle as a result of its being near the second while it was being
loaded.
Based upon detailed, written findings of fact and conclusions
of law, the district court held that the Agents had reasonable
suspicion to initiate the stop, and therefore denied the
suppression motion. A bench trial was held, and Oviedo-Rosales was
found guilty. He was later sentenced, inter alia, to 60-months
imprisonment.
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II.
As a general rule, Border Patrol agents on roving patrol may
stop “vehicles only if they are aware of specific articulable
facts, together with rational inferences from those facts, that
reasonably warrant suspicion that the vehicles” are engaged in
illegal activity. Brignoni-Ponce, 422 U.S. at 884; see also United
States v. Cortez, 449 U.S. 411, 417, 421-22 (1981).
In reviewing the denial of a suppression motion, the factual
findings are reviewed for clear error; the legal conclusions,
including whether there was reasonable suspicion, de novo. See
United States v. Inocencio, 40 F.3d 716, 721 (5th Cir. 1994). In
so doing, “[t]he evidence presented at a pre-trial hearing on a
motion to suppress is viewed in the light most favorable to the
prevailing party”. Id.
In asserting that the district court erred in denying his
suppression motion, Oviedo-Rosales does not claim that any of the
findings of fact are clearly erroneous. He claims only that the
Agents lacked the requisite reasonable suspicion. As stated, that
conclusion of law is reviewed de novo.
Again, to establish reasonable suspicion, the Border Patrol
agent must identify specific, articulable facts, together with
reasonable inferences therefrom, that reasonably warrant a
suspicion that a vehicle is involved in illegal activity.
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Brignoni-Ponce, 422 U.S. at 884; Cortez, 449 U.S. at 417, 421-22.
Moreover, “[i]n making a determination of reasonable suspicion, the
agents (and the courts reviewing the agents’ actions) must take the
totality of the circumstances into account”. United States v.
Nichols, 142 F.3d 857, 865 (5th Cir. 1998) (citing Cortez, 449 U.S.
at 417).
It is well established that, in ruling on reasonable suspicion
vel non, the district court may consider, among other factors,
(1) known characteristics of a particular
area, (2) previous experience of the arresting
agents with criminal activity, (3) proximity
of the area to the border, (4) usual traffic
patterns of that road, (5) information about
recent illegal trafficking in aliens or
narcotics in the area, (6) the behavior of the
vehicle’s driver, (7) the appearance of the
vehicle, and (8) the number, appearance and
behavior of the passengers.
Inocencio, 40 F.3d at 722 (quoting United States v. Casteneda, 951
F.2d 44, 47 (5th Cir. 1992)). Restated, this list is not
exclusive. Brignoni-Ponce, 422 U.S. at 884; Cortez, 449 U.S. at
421 n.3.
Obviously, reasonable suspicion is a fact intensive
determination; therefore, as stated, “each case must be examined
from the ‘totality of the circumstances known to the agent, and the
agent’s experience in evaluating such circumstances’”. Id. In
other words, “[i]n the totality of the circumstances analysis, each
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case necessarily must turn on its own facts”. Nichols, 142 F.3d at
871.
In the light of the numerous factors a court may consider in
ruling on reasonable suspicion, “‘reason to believe that the
vehicle had come from the border is a vital element,’ although ‘the
belief that the vehicle has crossed the border is not necessary if
other factors constitute reasonable suspicion to stop the
vehicle’”. Id. at 865 (quoting United States v. Pallares-Pallares,
784 F.2d 1231, 1233 (5th Cir. 1986)).
Oviedo-Rosales maintains that there was nothing unusual about
either his vehicle or his appearance that would be indicative of
drug smuggling; that his presence on Highway 385 at an early hour
of the morning is of no consequence; and that the stop could not
have been based on a “lead-car/load-car” arrangement, because the
two vehicles were not traveling in close proximity, and the K-9
alerting to the first vehicle could not justify stopping him.
Based upon our review of the record, and in the light of the
totality of the circumstances, and recognizing that the officers
had reason to believe Oviedo’s vehicle was approaching from the
border, the Agents were aware of specific articulable facts that
created reasonable suspicion that Oviedo-Rosales was engaged in
illegal activity. (Again, Oviedo-Rosales does not challenge any of
the district court’s findings of fact.) Pursuant to the Brignoni-
Ponce factors, the record discloses the following: (1) the area
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where Oviedo-Rosales was stopped is a known conduit for illegal
aliens and drugs entering the United States, as evidenced by Agent
Clanton’s testimony about illegal aliens being apprehended in the
area and about his recent drug seizures along the same road; (2)
Agent Clanton is an 18-year veteran of the Border Patrol, having
worked his entire career in the area of the stop; (3) the area of
the stop is approximately 52 miles from the border, with the Agent
having followed the vehicle pre-stop from a point even closer to
the border; (4) traffic patterns for the pre-dawn hours on Highway
385 are very light; (5) illegal aliens were apprehended the night
before this stop, and Agent Clanton had seized over 1000 pounds of
marijuana along the same road within a month of the stop; (6)
Oviedo-Rosales behaved normally; (7) there was nothing unusual
about the appearance of his vehicle; and (8) the vehicle was
occupied only by Oviedo-Rosales.
In addition, based on Agent Clanton’s experience, the
suspicion of a “lead-car/load-car” arrangement was very persuasive
in his decision to stop Oviedo-Rosales. He testified that sensors
indicated two vehicles traveling north from the border area; that
the two vehicles stopped were the only ones traveling north on
Highway 385; and that the first vehicle (possible “lead-car”) may
have contained the scent of marijuana from being in close proximity
to the second vehicle (possible “load-car”) while it was being
loaded with marijuana. Moreover, the occupants of the first
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vehicle told Agent Clanton they had come from the La Linda border
crossing, after finding it closed. Given these circumstances, the
likelihood that both vehicles were approaching from the border, as
well as the nature of the road and time of day, the suspicion of a
“lead-car/load-car” arrangement was a significant, and quite
reasonable factor to consider in deciding to stop Oviedo-Rosales’
vehicle. See, e.g., Inocencio, 40 F.3d at 723 (when viewed from
the totality of the circumstances, suspicion of lead-car/load-car
arrangement, combined with other factors, created sufficient level
of reasonable suspicion.)
As our court reminded recently, “[a]lthough some of these
factors would not alone amount to reasonable suspicion, reasonable
suspicion determinations are not limited to analysis of any one
factor”. Nichols, 142 F.3d at 866. Again, based on the totality
of the circumstances, and “view[ing] the evidence [presented at the
suppression hearing] in the light most favorable to [the prevailing
party—in this case,] the government”, there were specific
articulable facts that led the Agents “to reasonably suspect that
[Oviedo-Rosales] was engaged in illegal activity”. Id. at 872-73.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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