UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
Nos. 97-11014 & 97-10787
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PHILIP HAMILTON SHARMAN; ELISEO PEREZ-CORTES,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Texas
(2:97-CR-08-1; 2:97-CR-6-3)
July 30, 1998
Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
The linchpin for this consolidated appeal, regarding state
troopers’ vehicle-stops and resulting seizures of illegal aliens
and narcotics, is whether the troopers had probable cause to
believe that a traffic violation had occurred, consistent with
Whren v. United States, 517 U.S. 806 (1996). Concluding that they
did, we AFFIRM.
I.
*
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that this opinion should not be published and is not precedent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.
On 1 February 1997, a Texas state trooper was on traffic
patrol along Interstate 40, near Vega, Texas. The Trooper observed
a motor home begin to exit the interstate; then “jerk[]” back onto
it; and then cross the median to a frontage road. Having observed
a violation of Texas traffic laws, the Trooper stopped the vehicle.
The driver explained that he crossed to the frontage road
because he was out of gas. After talking separately with the
driver and passenger, and receiving conflicting accounts of their
travels, the Trooper radioed for a nearby United States Border
Patrol canine unit. Hearing this request, the driver confessed
that he was transporting 28 illegal aliens. The Trooper then
issued the driver a warning for illegally crossing the median, and
turned the matter over to the Border Patrol Agents.
Defendant Perez-Cortes was a passenger in the motor home, and
was identified as, and admitted to being, the individual
responsible for arranging the transportation of the illegal aliens.
He was charged with conspiracy to transport and transporting
illegal aliens, in violation of 18 U.S.C. § 371 and 8 U.S.C. §
1324(a)(1)(A)(ii). Following denial of his suppression motion,
Perez-Cortes entered a conditional guilty plea, and was sentenced,
inter alia, to 11 months imprisonment.
On the day the motor home was stopped, 1 February 1997,
another Texas state trooper, while on patrol of the same
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interstate, observed a vehicle run a stop sign on the frontage road
adjacent to the interstate. The Trooper stopped the vehicle.
When he approached the driver, Defendant Sharman, the Trooper
noticed that Sharman was fumbling with his wallet; and that his
hands were visibly shaking. After informing Sharman that he would
issue a warning citation for running the stop sign, the Trooper
asked for consent to search the vehicle. Sharman refused.
A Border Patrol canine unit, that had arrived at the scene
shortly after the stop, searched the outside of the vehicle and
alerted immediately to the trunk area. At the request of the
Trooper, Sharman provided the keys to the trunk; it contained
approximately 100 pounds of marijuana.
Sharman was charged with possession with intent to distribute
marijuana, in violation of 21 U.S.C. § 841. Following denial of
his suppression motion, Sharman entered a conditional guilty plea,
and was sentenced, inter alia, to 37 months imprisonment.
At the time of each stop, the Border Patrol was conducting
“Operation Vega”, with cooperation from the Drug Enforcement
Administration and local law enforcement agencies. Two decoy signs
indicating immigration and narcotics checkpoints were placed along
Interstate 40, near an exit, for the purpose of determining if
vehicles were attempting to evade the phantom checkpoints.
The Texas Department of Public Safety was aware of the
operation, and attended a planning meeting for it. However, it
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declined to participate in the operation. Each Trooper testified
at the suppression hearing involving their respective stop that,
even if Operation Vega had not been conducted in the area, each
defendant would have been stopped. And, a Border Patrol Agent
testified that, during the operation, the Border Patrol was
assigned its own radio channel; that one Agent was assigned to
monitor the “intercity” radio channel for radio traffic from local
authorities; and that, when a Border Patrol canine unit is in an
area, local authorities are notified in the event they wish to use
it.
In denying the suppression motions, the magistrate judge
concluded, inter alia, that the stops at issue were based on
traffic violations, and thus proper. The district court agreed.
II.
Needless to say, in reviewing the denial of the suppression
motions, “we review ‘the district court’s factual findings for
clear error and its ultimate conclusion as to the constitutionality
of the law enforcement action de novo’”. United States v.
Tompkins, 130 F.3d 117, 119-20 (5th Cir. 1997), cert. denied, 118
S. Ct. 1335 (1998) (quoting United States v. Jenkins, 46 F.3d 447,
451 (5th Cir. 1995)).
Whren notwithstanding, Sharman and Perez-Cortes contend that
the district court erred in denying their suppression motions
because they were unreasonably seized during Operation Vega,
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maintaining in support that the stops were based solely upon their
decisions to exit the interstate and upon their out-of-state
license plates. In this regard, they assert that the operation was
illegal, in that it impermissibly used Texas state troopers to
effect investigative stops, which the Border Patrol was legally
precluded from doing. They claim that, as a result, the evidence
seized and statements given should be suppressed as fruit of the
poisonous tree.
Along this line, they maintain that “the Border Patrol
articulated no facts whatsoever that would support its decision to
stop” them; and that, as noted, two impermissible criteria were
used to investigate motorists: exiting the interstate, and out-of-
state license plates. (Emphasis added.) Also, both request that,
in the light of the district court’s application of Whren, we
address how United States v. Brignoni-Ponce, 422 U.S. 873 (1975),
relating to roving Border Patrol stops, retains vitality.
In support of their theory that the Border Patrol and Texas
state troopers were working together on Operation Vega, Sharman and
Perez-Cortes state that one of the Troopers testified at the
suppression hearing that she had immediate radio contact with the
Border Patrol; that Border Patrol agents testified that they were
working with state officials; and that the Border Patrol
characterized Operation Vega as a roving patrol.
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We need not decide whether Operation Vega was an illegal
roving patrol, or whether the Texas state troopers were acting as
agents for the Border Patrol. Instead, our starting and ending
point is well established: “As a general matter, the decision to
stop an automobile is reasonable where the police have probable
cause to believe that a traffic violation has occurred”. Whren,
517 U.S. at 810.
It is undisputed that each stop followed a traffic violation:
the first, crossing the median; the second, running a stop sign.
It is also undisputed that Texas state troopers, not the Border
Patrol, made both stops. In short, the Troopers had probable cause
to believe that traffic violations had occurred; therefore, the
stops were reasonable under the Fourth Amendment, with the
resulting evidence seized and statements taken admissible. Id. at
819. No more need be said.
III.
For the foregoing reasons, the judgments are
AFFIRMED.
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