F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 22 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNTIED STATES OF AMERICA,
Plaintiff/Appellee,
No. 02-2173
v. (New Mexico)
(D.Ct. No. CR 01-1398 BRB/JC)
ALBERTO ZAMBRANO,
Defendant/Appellant.
ORDER AND JUDGMENT *
Terri J. Abernathy, Assistant U.S. Attorney (David C. Iglesias, United States
Attorney with her on the brief), Las Cruces, New Mexico, for Plaintiff/Appellee.
James W. Klipstine, Jr. of James W. Klipstine, Jr., L.L.C., Hobbs, New Mexico,
for Defendant/Appellant.
Before LUCERO, O’BRIEN, and TYMKOVICH, Circuit Judges.
Mr. Alberto Zambrano was stopped by Border Patrol Agent David Collier
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
while driving on New Mexico Highway 54, approximately seventy miles north of
the Paso Del Norte Port of Entry in El, Paso, Texas. Six kilograms of cocaine
were found wrapped in bundles inside the gas tank of his black Mercury Cougar.
He was charged with possession with intent to distribute five kilograms or more
of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Mr. Zambrano
moved to suppress the cocaine, arguing Agent Collier did not have reasonable
suspicion to stop his vehicle as required by the Fourth Amendment. The district
court denied the motion in a comprehensive and thoughtful decision from the
bench. The judge made factual findings and pointed to several particular facts
which, collectively, supplied the requisite reasonable articulable suspicion for the
stop. Thereafter, Mr. Zambrano entered a guilty plea, specifically reserving his
right to appeal the denial of his motion to suppress. Our jurisdiction to review his
timely appeal arises pursuant to 28 U.S.C. § 1291.
Reasonableness under the Fourth Amendment is a conclusion of law
triggering a de novo review. United States v. Gandara-Salinas, 327 F.3d 1127,
1129 (10th Cir. 2003). On review, evidence is considered in the light most
favorable to the prevailing party, and the district court’s findings of fact are
accepted unless clearly erroneous. Id. Our independent review of the record
prompts us to observe that the traffic stop in this case was marginal, surviving
largely because of our deference to the trial court's fact finding. Given the facts
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found, including credibility determinations, the stop was reasonable and we affirm
the district court’s denial of the motion to suppress.
The Fourth Amendment protects against unreasonable searches and seizures
by the government, including protections from unjustified investigatory stops of
persons and vehicles. United States v. Arvizu, 534 U.S. 266, 273 (2002). A
border patrol investigatory stop is justified and will not offend the Fourth
Amendment if it is supported by reasonable suspicion that criminal activity may
be afoot. Id. A detaining officer must have a particularized and objective basis
for suspecting legal wrongdoing. Id. “Border patrol agents may thus stop
vehicles if they are aware of specific articulable facts, together with rational
inferences from those facts, that reasonably warrant suspicion.” Gandara-
Salinas, 327 F.3d at 1129. (citations and quotations omitted). Significantly, the
calculus of reasonable suspicion must take into account the totality of the
circumstances because the legal concept is “somewhat abstract.” Arvizu, 534 U.S.
at 274.
At the forefront of our discussion, we acknowledge the linchpin of Mr.
Zambrano’s argument. Our cases recognize that a person’s reaction to the
presence of law enforcement officers can legitimately trigger suspicion. 1 Agent
The following factors are relevant in determining whether an
1
immigration stop is supported by reasonable suspicion:
(1) characteristics of the area in which the vehicle is encountered; (2) the
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Collier described Mr. Zambrano’s behavior as consistent with a driver who
recognized him as a member of the law enforcement community. But, Mr.
Zambrano testified that he did not realize he was being followed by a law
enforcement agent, and therefore, his reactions, if any, observed by the agent
were innocent. Without knowledge that he was being watched by a border patrol
agent, he argues there can be no reasonable suspicion based upon reactive
behavior, and the stop was consequently illegal.
In assessing the totality of the circumstances, the district court succinctly
described the factual mosaic supporting the agent’s suspicions and justifying the
traffic stop. Recognizing first that law enforcement must “have more than a
hunch” to instigate an investigatory stop, the court minimized the weight given to
proximity of the area to the border; (3) the usual patterns of traffic on
the particular road; (4) the previous experience of the agent with alien
traffic; (5) information about recent illegal border crossings in the area;
(6) the driver's behavior, including any obvious attempts to evade
officers; (7) aspects of the vehicle, such as a station wagon with
concealed compartments; and (8) the appearance that the vehicle is
heavily loaded.
United States v. Gandara-Salinas, 327 F.3d 1127, 1129-30 (10th Cir. 2003)
(emphasis added).
Further, when occupants of the car “exhibit ‘surprised or scared’ facial
expressions, widen their eyes, look back to watch the Border Patrol vehicle go by,
return to looking straight forward with both hands gripping the steering wheel,
look a second time, and then stare straight forward again,” we have found such
behavior to support a finding of reasonable suspicion. United States v.
Barron-Cabrera, 119 F.3d 1454, 1457-58 (10th Cir. 1997).
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the agent’s testimony that Mr. Zambrano looked “very carefully” at the agent’s
vehicle when the two cars first passed each other going in opposite directions on
the two-lane highway. (Transcript from Motion Hearing at 108). While this may
have piqued the agent’s interest and caused the agent to turn and follow the black
Mercury, we agree with the district court that, standing alone, Mr. Zambrano’s
initial glance at the agent’s vehicle was not enough to justify a traffic stop. But
there is more.
After turning around and catching up with Mr. Zambrano’s vehicle, the
agent proceeded to follow closely behind and noticed several things indicative of
a driver who was aware of the presence of law enforcement. The agent testified
that Mr. Zambrano was driving ten miles per hour below the posted speed limit.
He appeared nervous, looking at the agent’s car several times in the rear view
mirror, and when the agent moved into oncoming traffic to pass the Mercury, Mr.
Zambrano did not turn to look, but appeared to be gripping the steering wheel
tightly. After passing Mr. Zambrano’s car, it became apparent to the agent that
the Mercury was slowly drifting farther behind. The agent pulled to the side of
the road, stopped, waited for Mr. Zambrano to pass in front of him, and then
initiated the investigatory stop. Even if we assume, contrary to his testimony 2,
2
Mr Zambrano devotes a great deal of his argument to the idea that his
reactions to the agent’s vehicle — whether it be looking at the officer, not
looking at the officer, gripping the steering wheel, slowing down, or speeding up
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that Mr. Zambrano actually recognized the agent’s unmarked vehicle to be that of
law enforcement, it is still an uncomfortable stretch to believe the agent possessed
“a particularized and objective basis for suspecting legal wrongdoing” based only
on Mr. Zambrano’s behavior. 3 Arvizu, 534 U.S. at 273. But, again, there is more.
Most noteworthy to the district court, and we agree, are the reasonable
inferences the agent drew based on his knowledge of the circumstances and
— are irrelevant to the determination of reasonable suspicion. Mr. Zambrano
testified that he had no idea the agent’s unmarked Jeep Cherokee represented law
enforcement. Furthermore, he argues, such knowledge could not be reasonably
attributed to him based upon objective analysis of fact. Therefore, the argument
continues, because he did not sense the presence of law enforcement, any action
or reaction to the agent and his unmarked vehicle must be construed as innocent
rather than suspicious behavior.
That said, it is fairly debatable whether Mr. Zambrano recognized the agent
as law enforcement — the agent’s Jeep had two lights mounted on the front
bumper, two lights mounted on the back window, government license plates, a
mounted wire K-9 kennel in the back of the vehicle, and the agent was in uniform
— it is peripheral to our holding. Even if we assume he did not know the Jeep
was occupied by a border patrol agent, the agent’s reasonable suspicion of
criminal activity was rooted in and justified by the totality of the circumstances,
only part of which was Mr. Zambrano’s behavior.
3
Mr. Zambrano complains that “reactive behavior” can be described so
broadly as to be meaningless. His complaints have some resonance. Indeed, the
behavior descriptions sometime appear contradictory from case to case. An
officer's suspicion is aroused: when a subject looks at him carefully or refuses to
look at him; when a subject drives exactly at the speed limit or drives too slowly;
when a subject appears too nervous or too nonchalant. But we recognize the
dynamic that well trained and experienced officers bring to the process, and
hence, require that their suspicions be reasonable and articulable, not necessarily
universal or profound. And, we rely in large measure on the trial judge to
separate the sincere from the contrived.
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experience as a border patrol agent in southern New Mexico. 4 In particular, while
following Mr. Zambrano, the agent requested a vehicle registration check on the
Mercury’s license plate. Although the car had not been reported stolen, a lane
crossing check, 5 provided by United States Customs, revealed the Mercury had
crossed the international border from Mexico to the United States approximately
4
Important to the district court’s decision, and likewise to ours, is its
express finding that Agent Collier’s testimony was “very credible . . . . He was
very frank in responding to the questions of both the government’s counsel and to
defense counsel . . . .” (Transcript of Motion Hearing at 107). “We give
deference to the trial court in determining the credibility of witnesses.” United
States v. Knapp, 1 F.3d 1026, 1029 (10th Cir. 1993)
5
A lane crossing records check informs the requesting agent whether a
vehicle has crossed the international border within the previous seventy-two
hours. The requesting agent provides a license plate number and that number is
queried in the Treasury Enforcement Communications System (TECS) database.
Agent Collier called in the Mercury’s Colorado license plate, 248 ESG, and
received a positive lane crossing result from the dispatcher. Mr. Zambrano
attempts to discount the lane crossing report by pointing out that the certified
report from the TECS, obtained months after the investigatory stop, showed a
vehicle with a New Mexico, not Colorado, license plate 248 ESG had crossed the
international border. Because of this discrepancy, Mr. Zambrano argues the
results of the lane crossing check cannot be considered legitimate criteria in the
agent’s assessment of reasonable suspicion. We disagree. “A mistaken premise
can furnish grounds for a . . . stop, if the officers do not know that it is mistaken
and are reasonable in acting upon it.” United States v. Shareef, 100 F.3d 1491,
1505 (10th Cir. 1996) (citations and quotations omitted). There is no evidence
that Agent Collier had reason to believe the information was erroneous, and as
such, the positive lane check information is given due regard in the calculus of
reasonable suspicion.
Additionally, the government notes that it is likely Mr. Zambrano's black
Mercury, with Colorado license plates, is the vehicle that crossed the border, but
the license plate was mistakenly recorded as a New Mexico plate. It points out
that no New Mexico license plate “248 ESG” exists, suggesting a clerical error of
no significance.
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an hour and a half earlier. The agent also learned the vehicle had not been sent to
the secondary inspection area at the port of entry, which indicated it had not been
searched when it crossed the border. Significantly, both to us and to the district
court, the border patrol checkpoint on this particular highway was closed due to
construction. From his experience, the agent knew drug cartels from the El Paso
area were moving narcotics on this highway, taking advantage of the closed
checkpoint. 6
Many of the factors in this case are markedly similar to those noted as
apposite in Gandara-Salinas, 327 F.3d 1127. In addition to “reactive behavior”
and other agent specific observations and inferences Gandara-Salinas accepted
environmental factors as significant in the reasonable suspicion equation, viz., a
recent border crossing (in that case, the previous day; here, less than two hours), a
stretch of road notorious as a drug corridor, the temporary closure of a fixed
border checkpoint, and reliable information that drug and alien smugglers closely
monitor and exploit checkpoint closures. Id. at 1131.
The agent specific observations, while marginal, must be considered in
combination with environmental factors. The cumulative impact of disparate
6
The agent testified that the driver of a smuggling load had recently told
another agent that the drug cartels in El Paso, Texas were using Highway 54
because the checkpoint was closed. (Applee’s Supp. App. at 44). Additionally,
twenty-three narcotic seizures, eight of which were made by Agent Collier,
occurred in the two-month period the checkpoint was closed. (Id. at 42-43).
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facts viewed from a global perspective permit Agent Collier to have reasonably
inferred that Mr. Zambrano had just entered the United States from Mexico, had
not been subject to search at the border, and had chosen to travel on this
particular highway — known as a corridor for drug smuggling — in an attempt to
circumvent the closed checkpoint.
Giving due weight to the factual inferences drawn by the agent, including
Mr. Zambrano’s reactions, or lack thereof, to the agent’s presence, 7 and crediting
the district court’s comprehensive and logical findings, we hold that Agent
Collier had a reasonable and articulable suspicion to believe Mr. Zambrano was
engaged in illegal activity.
We AFFIRM the district court’s denial of the motion to suppress.
Entered by the Court:
TERRENCE L. O’BRIEN
United States Circuit Judge
7
Again, even if Mr. Zambrano did not recognize the presence of law
enforcement, and if his behavior toward the agent was innocent, “[a]
determination that reasonable suspicion exists . . . need not rule out the possibility
of innocent conduct.” Arvizu, 534 U.S. at 277. His reactions, taken together with
all other reasonable inferences drawn by the agent, suffice to form a
particularized and objective basis for the stop.
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