United States v. Villalobos

Revised December 9, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-50640
_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BIVIAN VILLALOBOS, JR,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
November 19, 1998
Before KING, GARWOOD, and HIGGINBOTHAM, Circuit Judges.

KING, Circuit Judge:

Defendant-Appellant Bivian Villalobos, Jr., appeals his

conditional plea of guilty on the grounds that the district court

erred in denying his motion to suppress evidence obtained as the

result of an allegedly unconstitutional stop by a United States

Border Patrol agent. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case concerns a Border Patrol stop on Highway 67, which

runs north from the Presidio, Texas port of entry to the United

States to Shafter, Texas, a small ex-mining community, and then
to Marfa, Texas. Two numbered roads intersect Highway 67. Ranch

Road 170 runs along the United States-Mexico border, intersecting

Highway 67 at Presidio. Ranch Road 169 intersects Highway 67

about seven miles south of Marfa. The terrain from Presidio to

Shafter consists of rugged desert and mountains; the thirty-odd

miles from Shafter to Marfa are primarily rolling hills. This

area of far West Texas is occupied mainly by large ranches and is

extremely sparsely populated. Highway 67 is a known alien and

drug trafficking route, especially late at night.

During the early morning hours of March 14, 1997, United

States Border Patrol Agent Joe Threadgill was stationed at a

Border Patrol checkpoint about fifty-nine miles north of the

border and five miles south of Marfa, Texas, on Highway 67. The

checkpoint was closed at the time, but at about 1:15 a.m.,

Threadgill received a call from the Presidio port of entry

informing him that a light blue Chrysler, with Texas license

plate number 397XDL, had just entered the United States and

“would be a good check for narcotics if it came north.”1

Threadgill radioed this information to Border Patrol Agent Rodney

Hall, who was observing traffic on Highway 67 approximately

1
This information had been entered into a database
maintained by the El Paso Intelligence Center. The agents later
discovered that its source was an anonymous informant who, on
January 22, 1997, tipped off a customs investigator that the
Chrysler and three cars with Mexican license plates had made
multiple narcotics smuggling trips across the border via ports of
entry to the United States.

2
twelve to fifteen miles south of the Marfa checkpoint. At about

2:20 a.m., Hall noticed two vehicles approaching his location.

Pulling out to the edge of the highway, he illuminated the first

vehicle with his headlights as it passed and noted that it

resembled the light blue Chrysler that Threadgill had described.

Hall was able to pull in behind the first car because the two

vehicles were traveling about a quarter of a mile apart, but as

soon as he did so, the second vehicle decelerated and fell back a

mile or more.

Hall verified that the license plate number of the first car

matched the number that Threadgill had relayed to him. He also

advised Threadgill that he was following the Chrysler and that he

believed that the second vehicle was traveling with it. Hall

testified at the suppression hearing that smugglers often used a

lead car-load car arrangement, in which two vehicles travel

together so that the first vehicle can drive ahead to serve as a

scout for the car carrying the contraband. Upon hearing this

news, Threadgill left the checkpoint and drove south to meet

Hall, stopping at the intersection of Highway 67 and Ranch Road

169, about four miles south of the checkpoint. Threadgill

illuminated the three vehicles with his headlights as they passed

and noticed that the third vehicle, the vehicle originally

following the Chrysler, was a “brown stake-bed Ford pickup”

truck. He could not, however, see into the truck’s cab because

the windows were darkly tinted. Although he considered running a

3
vehicle registration check, he ultimately concluded that he would

be unsuccessful because the truck had temporary paper tags. Hall

testified that the tags were “another indicator to us that

something could possibly be wrong” because smugglers often use

vehicles with temporary tags. The agents then decided that they

would pull over both vehicles when they reached the Marfa

checkpoint.

Hall pulled over the Chrysler; Threadgill stopped the truck.

Threadgill informed the driver of the truck, later identified as

Bivian Villalobos, Jr., that he was an immigration officer and

that he wanted to check the driver’s citizenship. Villalobos

produced a driver’s license, stated that he was a United States

citizen, and, like the driver of the Chrysler, orally consented

to a canine sniff of his vehicle. The dog alerted to both

vehicles, and although no drugs were found in the Chrysler, the

agents discovered sixty bundles (about 133 pounds) of marijuana

hidden in the frame of the truck.

Villalobos was charged with possession with intent to

distribute marijuana, a violation of 21 U.S.C. § 841(a)(1). At a

pretrial suppression hearing, the district court concluded that

the stop of the truck was supported by reasonable suspicion

because of the time of night, the proximity of the two vehicles

as they traveled on a highway known as an illegal alien and

narcotic trafficking route, the truck’s paper tags, and the very

dark tint on the truck’s windows. Villalobos then entered a

4
conditional guilty plea, reserving his right to appeal the

district court’s denial of his motion to suppress.

II. STANDARD OF REVIEW

We review the district court’s factual findings for clear

error, viewing the evidence presented at a pretrial suppression

hearing in the light most favorable to the prevailing party, in

this case the government. See United States v. Cardona, 955 F.2d

976, 977 (5th Cir. 1992). We will not say that a finding is

clearly erroneous unless we are left with the definite and firm

conviction that a mistake has been committed. See United States

v. Casteneda, 951 F.2d 44, 47 (5th Cir. 1992) (citing United

States v. Fernandez, 887 F.2d 564, 567 (5th Cir. 1989)). We

review de novo, however, conclusions of law derived from the

district court’s factual findings, such as the determination that

reasonable suspicion justified the investigatory stop of

Villalobos’s vehicle. See United States v. Inocencio, 40 F.3d

716, 721 (5th Cir. 1994) (citing Cardona, 955 F.2d at 977).

III. DISCUSSION

Under United States v. Brignoni-Ponce, 422 U.S. 873, 884

(1975), and United States v. Cortez, 449 U.S. 411, 421-22 (1981),

Border Patrol agents on roving patrol may stop a vehicle only if

they are aware of specific articulable facts, together with

rational inferences from those facts, that reasonably warrant

suspicion that that particular vehicle is involved in illegal

activity. The relevant factors include: (1) the characteristics

5
of the area in which the agents encounter the vehicle; (2) the

previous experience of the arresting agents with criminal

activity; (3) the proximity of the area to the border; (4) the

usual traffic patterns on the road in question; (5) information

about recent illegal trafficking in aliens or narcotics in the

area; (6) the appearance of the vehicle; (7) the behavior of the

vehicle’s driver; and (8) the number, appearance, and behavior of

the passengers. See Brignoni-Ponce, 422 U.S. at 884-85; United

States v. Nichols, 142 F.3d 857, 865 (5th Cir. 1998) (quoting

Inocencio, 40 F.3d at 722). Reasonable suspicion is not limited

to an analysis of any one factor. See Inocencio, 40 F.3d at 722.

Instead, since “reasonable suspicion” is a fact-intensive test,

each case must be examined from the “totality of the

circumstances known to the agent, and the agent’s experience in

evaluating such circumstances.” Casteneda, 951 F.2d at 47.

We first consider the characteristics of the area in which

the agents encountered Villalobos’s vehicle and the proximity of

that area to the border. The record shows that the area between

Presidio and Marfa was both close to the border and frequented by

border traffic. Agent Threadgill testified that this region was

a “border area,” a description further borne out by the Border

Patrol’s decision to maintain a permanent checkpoint at Marfa.

Moreover, the road on which Villalobos was driving led directly

from the border and was intersected only by other roads leading

to the border. Villalobos was relatively close to the border

6
when Agent Hall first noticed him. This court previously has

determined that vehicles traveling more than fifty miles from the

border usually are a “substantial distance” from the border. See

Inocencio, 40 F.3d at 722 n.7 (internal quotes omitted). In this

case, Villalobos’s truck was about thirty-six miles from the

border--well under the benchmark fifty miles--when Hall first

spotted it. Although the agents did not stop the truck until the

Marfa checkpoint, more than fifty miles from the border, their

uncontroverted testimony reveals that for safety reasons, they

chose to wait until they reached a lighted area to investigate

further. In short, Villalobos was unquestionably traveling

through an area heavily traversed by border traffic, even closer

to the border than a checkpoint designed to intercept illegal

international smuggling.

Nevertheless, Villalobos contends that the characteristics

of the area do not support any inference that he was involved in

illegal activity because he could have been returning from Big

Bend National Park or traveling from one of the towns along

Highway 67. His first argument is unavailing, however, because

Highway 67 is a substantial distance from the southwestern edge

of the park. The likelihood that a driver proceeding north on

Highway 67 at 2:20 a.m. is a tourist returning from Big Bend is

thus considerably lower here than in the cases Villalobos cites,

which concern stops on Highways 118 and 385, routes that lead

directly out of Big Bend. See Rodriguez-Rivas, 151 F.3d at 378;

7
United States v. Jones, 149 F.3d 364, 366 (5th Cir. 1998); United

States v. George, 567 F.2d 643, 644 (5th Cir. 1978); United

States v. Frisbie, 550 F.2d 335, 336-37 (5th Cir. 1977). And the

possibility that Villalobos could have been an innocent traveler

from Presidio or Shafter does not negate the fact that the area

through which he was driving was both very close to the border

and very heavily traversed by border traffic.

The other Brignoni-Ponce factors also support the validity

of the stop. First, the arresting agents’ law enforcement

background suggests that they were knowledgeable and experienced.

Threadgill had been stationed in Marfa as a Border Patrol agent

for more than twelve years and Hall for about fifteen months.

Second, the usual traffic patterns on Highway 67 support the

agents’ suspicion of Villalobos’s truck. Threadgill testified at

the suppression hearing that in the early morning hours on

Highway 67, he would see only one car every hour or hour and a

half. Although traveling at an unusual time of day may not by

itself give rise to reasonable suspicion, it is a permissible

consideration. See United States v. Lujan-Miranda, 535 F.2d 327,

329 (5th Cir. 1976). Moreover, the agents, who were familiar

with area residents, did not recognize Villalobos’s truck as a

local vehicle. Third, there was ample evidence that Highway 67

was a notorious smuggling route. Threadgill stated that

smugglers had transported both narcotics and illegal aliens north

on Highway 67 in the month prior to Villalobos’s arrest and that

8
he normally apprehended aliens in the area from Presidio to Marfa

at least once a week.

Fourth, the appearance of the truck was suspicious because

it displayed only temporary fifteen-day tags rather than a

permanent license plate. Agent Hall testified that this was

“another indicator to us that something could possibly be wrong”

because “smugglers tend to use vehicles that have temporary tags

or license plates that are expired because they buy them off the

lots, they don’t have to pay insurance and they are planning on

using them only once or twice.” Villalobos contends that

temporary tags cannot be suspicious given our refusal to find

reasonable suspicion in Rodriguez-Rivas, where the vehicle

stopped had no license plates at all. But while we acknowledged

in Rodriguez-Rivas that “the absence of Texas license plates

alone does not authorize a Border Patrol agent to stop a

vehicle,” 151 F.3d at 381, we also emphasized that “the lack of

required vehicle tags is a factor to consider in determining the

reasonableness of the stop . . . .” Id. This factor takes on

increased significance where, as here, it is known to be a tactic

employed by contraband traffickers to escape detection.

Furthermore, while the truck’s darkly tinted windows are not

uncommon in southwest Texas, see United States v. Diaz, 977 F.2d

163, 165 n.5 (5th Cir. 1992), the extreme darkness of

Villalobos’s tint did not allay the other suspicious

circumstances.

9
 Finally, the behavior of the driver suggested that he might

be involved in illegal activity. First, Villalobos appeared to

be traveling in a lead car-load car arrangement with the blue

Chrysler; they were driving within a quarter-mile of each other

at a time and in a place where it was unusual to see more than

one car every hour to hour and a half. Although observation of

two cars in proximity on a sparsely traveled road does not itself

justify a stop, it may raise an agent’s suspicions. See United

States v. Saenz, 578 F.2d 643, 646-47 (5th Cir. 1978); United

States v. Villarreal, 565 F.2d 932, 936 (5th Cir. 1978); United

States v. Barnard, 553 F.2d 389, 392 (5th Cir. 1977). Although

Villalobos suggests that such a suspicion is unfounded absent

some connection between the Chrysler and his truck, such as a CB

radio hookup or similar license plates, we held in United States

v. Inocencio, 40 F.3d 716, 720, 723 (5th Cir. 1994), that the

lead car-load car inference was justified where two vehicles were

traveling near each other in a sparsely populated area and one

vehicle had been observed making u-turns in the area and driving

up and down the highway.2 More important, there was “evidence to

bolster the lead car-load car inference,” Melendez-Gonzalez, 727

F.2d at 412, namely the tip that the Chrysler was likely to be

2
Both the load car and the lead car apparently contained
two-way radios, but Border Patrol agents apparently did not know
of their existence before they stopped the first vehicle, the
load car. See Inocencio, 40 F.3d at 720-21.

10
smuggling drugs and the agents’ knowledge that smugglers favored

the lead car-load car arrangement.

Villalobos contends, however, that we cannot consider the

tip about the Chrysler in evaluating whether there was reasonable

suspicion justifying a stop of his truck. First, he claims that

the tip, nearly two months old, was stale. We note, however,

that the informant described a particular vehicle that had made

multiple smuggling trips, thus warranting the presumption that it

was engaged in continuous activity. Second, Villalobos argues

that the tip could not contribute to the agents’ reasonable

suspicion calculus because it neither bore indicia of reliability

nor contained enough detail to allow it to be independently

corroborated by the agents. We disagree. The Supreme Court

approved a vehicle stop based on an anonymous tip that the driver

was carrying drugs in Alabama v. White, 496 U.S. 325 (1990),

pointing out that the tip in that case was independently

corroborated by the officers and contained a range of details

relating not just to easily obtained facts and conditions

existing at the time of the tip, but to future actions of third

parties not easily predicted. See id. at 331-32. In White, an

anonymous telephone informant told police that Vanessa White

would leave a particular apartment at a given time in a brown

Plymouth station wagon, carrying cocaine in her attaché case.

See id. at 327. Officers waited outside the address given by the

informant and followed a woman as she left in the specified car.

11
They stopped her just before she reached the motel. See id. The

Supreme Court held that the fact that the woman left in the car

described by the informant, within the time frame given by the

informant,3 and drove the most direct route to the motel

constituted sufficient corroboration, even though the woman’s

name and exact address were not verified prior to the stop, she

was empty-handed when she left the apartment, and the officers

had no way of knowing whether she would turn in to the motel or

pass it by. See id. at 331. Although the tip in this case is

clearly less detailed than that in White, it was corroborated

insofar as the Chrysler did come into the country via a port of

entry from Mexico and travel along roads known for drug smuggling

at a time when legitimate traffic was very rare. Cf. United

States v. Lopez-Gonzalez, 916 F.2d 1011, 1014 (5th Cir. 1990)

(finding corroboration when two vehicles matching the description

given by an informant passed a Border Patrol agent at the

specified time in the general location predicted by the tip).

Although the informant in this case did not say when the Chrysler

3
The Court acknowledged that the officer who received the
tip testified that the informant gave a particular time that the
woman would be leaving, but did not state what that time was. It
noted, however, that after the call, the officer and his partner
went to the apartment complex named in the tip and put it under
surveillance. “Given the fact that the officers proceeded to the
indicated address immediately after the call and that respondent
emerged not too long thereafter, it appears from the record
before us that respondent’s departure from the building was
within the timeframe predicted by the caller.” White, 496 U.S.
at 331.

12
would be traveling, as did the informants in White and Lopez-

Gonzalez, he or she did claim that it was engaged in a continuous

drug trafficking enterprise. It thus appears to us that the

Chrysler’s trip, made less than two months later, was within the

approximate timeframe implied in the tip.

Moreover, even assuming that the tip alone was too

unreliable to justify a stop, it contributes, along with the

other Brignoni-Ponce factors, to the agents’ particularized

suspicion of the truck. The tip, taken in combination with the

characteristics of the area, the time of day, the truck’s

appearance, and Villalobos’s behavior, raised a suspicion that

Villalobos, and not just any traveler along Highway 67 late at

night, was engaged in wrongdoing. This is the essence of our

Fourth Amendment investigatory stop jurisprudence. See Cortez,

449 U.S. at 417-18 (“Based upon that whole picture the detaining

officers must have a particularized and objective basis for

suspecting the particular person stopped of criminal activity.”).

But Villalobos’s suspicious behavior was not limited to

traveling closely behind the truck. He also decelerated

noticeably when Agent Hall pulled in front of him, even though he

had not been speeding. Although Villalobos’s counsel suggested

at the suppression hearing that he could have been following the

Chrysler for greater illumination or safety, he not only failed

to take advantage of the increased light (and safety) from the

law enforcement vehicle but fell back far enough to negate the

13
benefits of traveling with another car. Villalobos argues,

however, that his dropping back three-quarters of a mile after

Agent Hall pulled in front of him cannot be a suspicious

circumstance, because innocent individuals typically slow in the

presence of a law enforcement vehicle. The record does not show

whether Agent Hall was driving a marked car; he refers only to

his “patrol car” in his suppression hearing testimony. If the

vehicle was unmarked, Villalobos’s behavior was certainly

suspicious; an innocent individual likely would not have

decelerated sharply and fallen three-quarters of a mile behind a

civilian car where he had been following another automobile at a

distance of only a quarter-mile. Even if Hall’s car was marked,

however, Villalobos’s behavior was unusual. We have held that

noticeable deceleration in the presence of a patrol car can

contribute to reasonable suspicion, even though drivers often

slow when they see law enforcement personnel. Compare United

States v. Lopez, 911 F.2d 1006, 1010 (5th Cir. 1990), with Diaz,

977 F.2d at 165. Such deceleration may be additionally

suspicious when the car was not speeding to begin with: We

emphasize that Diaz held that “there is nothing suspicious about

a speeding car slowing down after a marked patrol unit turns to

follow.” Id. (emphasis added). The car in Diaz was traveling

seventy-five miles an hour on a rainy night, whereas Villalobos’s

car was not speeding. Moreover, even though the typical driver

may slow at the sight of a law enforcement vehicle, Villalobos

14
dropped back a full mile or more. While we recognize that

deceleration is a common and often completely innocent response

to the approach of a patrol car, we hold that it may be one

factor contributing to the reasonable suspicion justifying a stop

such as this one.

The district court correctly concluded that, under the

totality of the circumstances, the agents had reasonable

suspicion to stop Villalobos’s truck. Villalobos was traveling

through a sparsely populated border region along a notorious

smuggling route at a time of day preferred by smugglers. He was

driving a truck that experienced Border Patrol agents did not

recognize as a local vehicle and that carried the temporary tags

smugglers commonly use to avoid detection. Most important, he

appeared to be traveling in tandem, an arrangement favored by

smugglers, with a car that an informant had stated frequently

carried drugs across the border. When a Border Patrol agent

pulled in front of Villalobos, he slowed considerably and

maintained three times the distance between his truck and the

patrol car that he had kept up between himself and the Chrysler.

Given these facts, we cannot say that reasonable suspicion was

lacking. The Fourth Amendment seeks to prevent arbitrary police

action, not to require absolute certainty before law enforcement

officers may investigate. See White, 496 U.S. at 330 (quoting

United States v. Sokolow, 490 U.S. 1, 7 (1989)); Brignoni-Ponce,

422 U.S. at 878; United States v. Garza, 544 F.2d 222, 225 (5th

15
Cir. 1976). The stop here was not merely the result of a lucky

hunch; it was based on articulable factors indicating that

illegal activity might be afoot.

IV. CONCLUSION

For the reasons above, we AFFIRM the judgment of the

district court.

16