F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 6, 2005
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 05-2119
v. (D. of N.M.)
GABRIEL GUILLEN-ZAPATA, (D.C. No. CR-03-210-JP)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges. **
Defendant-Appellant Gabriel Guillen-Zapata, a Mexican citizen without
immigration documents, was apprehended in New Mexico near the border
between the United States and Mexico driving a vehicle transporting 1,650
pounds of marijuana. Guillen-Zapata pled guilty in federal district court in the
District of New Mexico to three counts: (1) conspiracy to possess marijuana with
*
This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1)(A), (b)(1)(A) and
846; (2) possession with intent to distribute marijuana in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B); and (3) being found in the United States after having
been deported as an alien convicted of an aggravated felony in violation of
8 U.S.C. §§ 1326(a)(1), (a)(2), and (b)(2). Guillen-Zapata appeals the denial of
his motion to suppress statements and physical evidence. He argues that the
district court erred in finding the Border Patrol agents possessed reasonable
suspicion to stop his vehicle and contends that all evidence related to the stop
should have been suppressed as fruit of the poisonous tree.
We take jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.
I. Background
The Birchfield area is a five to seven mile stretch of desert in southern New
Mexico, which runs along the Mexican border to the south and New Mexico
Highway 9 to the north. Throughout the Birchfield area, Highway 9 parallels the
border at a distance of 600 yards at its closest point and one mile at its farthest
point. There are no ports of entry within the Birchfield area, and the nearest ports
are approximately forty miles in either direction. There are no businesses or
structures in the area and no paved roads except Highway 9. A number of illegal
entries had been reported in the area in the three weeks prior to the traffic stop at
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issue, and at least ten drug seizures had been conducted in the area within the
three preceding years.
On December 19, 2002, at approximately 7:30 p.m., a vehicle sensor was
triggered in the Birchfield area. The sensor had been placed between Highway 9
and the Mexican border at a point where the distance between the highway and
border was approximately 600 yards. There was a dirt road running north and
south that crossed Highway 9 at that point. The sensor was designed to detect
vehicles driving off-road between the border and Highway 9, but it was possible
to avoid the sensor by staying on the dirt road. Approximately an hour before the
sensor’s activation, Border Patrol agents had driven along the sensor area parallel
to Highway 9 and marked out a path with their own tire tracks. That way, if
another vehicle crossed their tracks afterward, they would be able to tell.
When this sensor was activated, Border Patrol Agent Juan Francisco
Jimenez and his partner were parked about a mile west of the sensor’s location.
Officer Jimenez and his partner waited two or three minutes after hearing the
alarm so they would not “spook” the vehicles that may have activated the sensor.
Then, they moved up closer to the highway in order to see whether any vehicles
had driven past. They observed the taillights of a vehicle that had just passed
their position heading westbound on Highway 9. Agent Jimenez pulled onto the
highway, radioed the information to other Border Patrol agents, and headed east
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toward the sensor. As he did so, he saw the headlights of a second westbound
vehicle approaching. Agent Jimenez identified the second vehicle, which was
following closely behind the first, as “some type of utility truck.” Tr. at 17. The
two vehicles were headed away from the sensor, and the direction and time frame
of both vehicles was consistent with having activated the sensor.
Agent Jimenez arrived at the sensor, having seen no other vehicles on the
road between his initial point of observation and the sensor location. He saw
fresh vehicle tracks of two or more vehicles leading from the sensor’s location up
to Highway 9. The tracks indicated that the vehicles had turned west onto the
highway. After he radioed this information to other Border Patrol Agents, Agent
Kevin McCrary, who was approximately four and half miles west of the sensor
area, radioed back that he saw two “utility trucks like the kind the phone company
uses” headed west approximately three car lengths apart. Tr. at 37. At the time
these two vehicles passed his location, Agent McCrary estimated they were
traveling between sixty and sixty-five miles per hour.
About seven miles west of the sensor, Border Patrol Agent Richard Duggan
learned of the sensor’s activation and the subsequent reports of fellow agents and
headed east toward the sensor. When he passed two trucks that matched the
descriptions provided by the other agents, Agent Duggan made a U-turn and
headed west behind them. As soon as he did so, the lead truck sped up
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considerably and distanced itself from the trailing truck. Agent Duggan thought
this was suspicious, because, when he had passed them, they were traveling at the
same speed approximately 100 yards apart. He pulled alongside the trailing
vehicle and saw the driver, Guillen-Zapata, wearing a hard hat. Agent Duggan
thought this was suspicious, because he had worked in construction and knew that
hard hats were extremely uncomfortable and usually only worn while at a job site.
At that point, Agent Duggan slowed down and stopped the vehicle. As he
approached the driver’s window, he smelled creosote bush, which indicated that
the utility truck had very recently been driven off-road. Agent Duggan knew that
the only way to activate the sensor was to drive off-road. Agent Duggan asked
the driver, Guillan-Zapata, what his citizenship was, and he responded, “Mexico.”
Tr. at 47. When asked if he had any immigration documents with him, Guillen-
Zapata answered that he did not. Agent Duggan smelled marijuana coming from
the truck cab and saw wrapped packages behind the front seat, which looked to
him like packages of marijuana. When asked what he was carrying, Guillen-
Zapata responded, “Nothing.” Tr. at 48. Then he changed his answer to say he
did not know. Tr. at 48. Agent Duggan opened one of the side compartments of
the truck and, upon observing more bundles, he radioed ahead to tell other agents
to stop the lead truck. The agents discovered 1,650 pounds of marijuana in
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Guillen-Zapata’s truck and subsequently discovered 1,600 pounds of marijuana in
the lead truck.
The lead truck, which was driven by Erasmo Ruiz-Soto, was pursued by
Border Patrol Agent David Joseph Blea. Ruiz-Soto at first slowed down and tried
to waive the officer past him. When Agent Blea attempted to pull him over, he
sped up and abruptly turned off-road, crashing through a fence and heading south
toward the Mexican border, which was less than a mile away. When his truck
became stuck, he attempted to flee on foot but was apprehended.
Co-defendant Ruiz-Soto filed a motion to suppress physical evidence and
statements relating to his arrest, and Defendant-Appellant Guillen-Zapata later
joined that motion. When it was denied, Guillen-Zapata pled guilty but then
appealed the denial of suppression. He argues that the Border Patrol agents
lacked reasonable suspicion to stop his vehicle and therefore violated his Fourth
Amendment rights.
II. Analysis
The Fourth Amendment requires a finding of reasonable suspicion that
criminal activity may be afoot before conducting roving Border Patrol stops.
United States v. Gandara-Salinas, 327 F.3d 1127, 1129 (10th Cir. 2003) (citing
United States v. Arvizu, 534 U.S. 266, 273 (2002)). “Although an officer’s
reliance on a mere hunch is insufficient to justify a stop, the likelihood of
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criminal activity need not rise to the level required for probable cause, and it falls
considerably short of satisfying a preponderance of the evidence standard.” Id.
(quoting Arvizu, 534 U.S. at 274). Under this standard, Border Patrol agents may
stop vehicles “if they are aware of specific articulable facts, together with rational
inferences from those facts, that reasonably warrant suspicion” of criminal
activity. Id. (quoting United States v. Monsisvais, 907 F.2d 987, 989–90 (10th
Cir. 1990) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975))).
“A determination that reasonable suspicion exists . . . need not rule out the
possibility of innocent conduct.” Arvizu, 534 U.S. at 277.
The following factors are relevant in determining whether a law
enforcement officer has reasonable suspicion to conduct an immigration stop:
(1) characteristics of the area in which the vehicle is encountered; (2) proximity
of the area to the border; (3) usual patterns of traffic on the particular road;
(4) 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; (8) the appearance that the vehicle was
heavily loaded. Gandara-Salinas, 327 F.3d at 1129–30 (quoting Monsisvais, 907
F.2d at 990 (citing factors listed in Brignoni-Ponce, 422 U.S. at 884–85)).
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In evaluating these factors, courts may not employ a “divide-and-conquer”
approach by evaluating and rejecting each factor in isolation. Arvizu, 534 U.S. at
277. Instead, the ultimate determination of reasonable suspicion depends upon
the totality of the circumstances. Gandara-Salinas, 327 F.3d at 1130. When
making their determination, law enforcement officers may rely on their own
experience and specialized training, and courts must defer to their ability to make
inferences from and deductions about the cumulative information that may elude
an untrained person. See Arvizu, 534 U.S. at 273; United States v. De La Cruz-
Tapia, 162 F.3d at 1277–78.
The ultimate determination of reasonableness under the Fourth Amendment
is a conclusion of law that we review de novo. See De La Cruz-Tapia, 162 F.3d
at 1277. The evidence to support that conclusion, however, must be viewed in the
light most favorable to the prevailing party, and we must accept the district
court’s findings of fact unless they are clearly erroneous. Id. at 1277–78.
On the facts above, the district court found that the Border Patrol possessed
reasonable suspicion to stop Guillen-Zapata’s vehicle. We are convinced that the
totality of the circumstances supports the district court’s ruling. Conceding only
one factor, Guillen-Zapata attacks the court’s findings on each of the other seven
factors. As explained below, we find his arguments unpersuasive.
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(1) As to the first factor (characteristics of the area in which the vehicle is
encountered), Guillen-Zapata takes issue with the court’s description of the area.
The court described the Birchfield area as a remote and desolate desert. Guillen-
Zapata argues that this was insufficient to support a conclusion that this factor
weighed against him. However, it clearly must be analyzed in context with the
remainder of the court’s discussion and analysis. Specifically, the judge found
that (I) the area was very near the Mexican border; (ii) no designated ports of
entry were nearby; (iii) it had a history of illegal entries and drug seizures; (iv)
after the sensor was triggered, Border Patrol observed only two vehicles within
the relevant vicinity—those driven by Guillen-Zapata and Ruiz-Soto. These
findings together demonstrate that the area lent itself to illegal border crossings
and that, at least on the night in question, it produced a very narrow pool of
suspects. We are satisfied this factor weighs in the government’s favor.
(2) Guillen-Zapata concedes that the second factor (proximity to the border)
weighs against him.
(3) As to the third factor (usual patterns of traffic on the particular road),
Guillen-Zapata claims that the evidence in the record showed only specific flow
and patterns of traffic during the time period at issue, as opposed to the general
tendencies of traffic in the area. Agent Jimenez testified that he was monitoring
Highway 9 on the evening in question and that only two vehicles (those driven by
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Guillen-Zapata and Ruiz-Soto) passed within proximity to the sensor at the time it
was activated. He also testified that ranchers in the area sometimes used the dirt
road leading onto Highway 9 but that use of the road would not trigger the sensor.
This testimony weighs against Guillen-Zapata, and no reason exists to believe
generalized evidence would have been more helpful than specific evidence. Thus,
absent any argument that the factor should have pointed in the opposite direction,
we see no reason to reach a different conclusion than the district court reached on
this factor.
(4)–(5) The fourth factor (previous experience of the agent with alien
traffic) and fifth factor (information about recent illegal border crossings in the
area), similarly weigh against Guillen-Zapata. The agents testified to their
involvement with several operations in prior years and to familiarity with illegal
drug runs across the border in the recent past. Guillen-Zapata argues that the
agents should have compared prior arrests to the one at issue to show their
specific knowledge of and experience with particular fact scenarios. However,
their testimony of experience in the same field within the same geographic area is
sufficient, so long as their testimony was credible. Compare United States v.
Gandara-Salinas, 327 F.3d at 1131 (basing its conclusion on similarly generalized
statements that the agent had experience in “narcotics seizures” and that the
highway was a “common route for smuggling undocumented immigrants and
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illegal drugs” across the Mexican border). We generally defer to the district court
on credibility determinations, and the record does not suggest any basis for
concluding its decision was clearly erroneous.
Guillen-Zapata also argues that the agents’ experience was not extensive
enough. Agent Duggan, who made the traffic stop, had been a Border Patrol
agent in this sector for approximately five years and had helped conduct
approximately six drug seizures within the Birchfield area alone. Three of those
involved Highway 9. Agent Jimenez, who provided Agent Duggan with
information based on his own observations at and near the sensor, had worked in
this Border Patrol sector for approximately six and a half years and, during that
time, had been involved in several drug seizures on Highway 9. As the United
States Supreme Court has made clear, courts should be hesitant to second-guess
law enforcement officers’ ability to detect suspicious conduct when they possess
experience and specialized training in that area. See Arvizu, 534 U.S. at 273; see
also De La Cruz-Tapia, 162 F.3d at 1277–78. We disagree with the defendant’s
suggestion that an agent must be involved in hundreds or thousands of operations
before we will defer to his expertise and agree with the district court that this
record provides sufficient basis for this factor to weigh in favor of the
government.
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(6) As to the sixth factor (the driver’s behavior, including attempts to evade
officers), Guillen-Zapata correctly points out that, when discussing driver
behavior, the court referred only to the truck driven by Ruiz-Soto in its
explanation of this factor. 1 However, the judge noted in his fact section that
when Agent Duggan stopped Guillen-Zapata’s vehicle, he knew that (i) there was
a sensor activation; (ii) vehicle tracks indicated westbound traffic; (iii) Border
Patrol agents were monitoring two utility trucks headed westbound on Highway 9;
(iv) his law enforcement presence caused the two vehicles, which were traveling
close together, to greatly increase the distance between them; and (v) Guillen-
Zapata was wearing a hard hat although he clearly was not on a construction site.
Agent Duggan’s experience in the Border Patrol made him suspicious of the
vehicles’ sudden distancing, and his experience in the construction industry made
him suspicious of someone who was wearing a hard hat when not at work. Given
the testimony presented, the district court’s fact findings are not clearly
erroneous. 2
1
On this point, it should be noted that the written order was drafted
pursuant to the judge’s oral statements, which were given in response to specific
oral arguments made by Ruiz-Soto’s attorney.
2
The issue of probable cause to search the vehicle, based upon the scent of
marijuana and view of wrapped packages in the cab, is separate from the issue of
reasonable suspicion to stop the car in the first place. See Brignoni-Ponce, 422
U.S. at 881–82. Only the latter is challenged in this appeal.
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(7) The seventh factor (aspects of the vehicle, such as a station wagon with
concealed compartments), is no help for Guillen-Zapata. He argues the court’s
finding that the trucks were “utility vehicles” was insufficient to support the
factor relating to covered compartments, because the Border Patrol agents did not
specifically say they were suspicious of the vehicles based on their potential to
hold contraband. We need not state the obvious on every point; Guillen-Zapata’s
vehicle falls squarely within this category.
(8) Finally, as to the eighth factor (the appearance that the vehicle was
heavily loaded), Guillen-Zapata does not put forth any argument to explain why it
should weigh in either direction, given that these were utility vehicles that were
built for heavy loads and thus unlikely to show the weight they were carrying. In
addition, even if this factor were considered to weigh in favor of Guillen-Zapata,
the overwhelming evidence presented by the remaining factors is sufficient to
support reasonable suspicion.
III. Conclusion
In light of the above-stated reasons, we agree with the district court that the
totality of the circumstances supports a finding of reasonable suspicion by the
Border Patrol and conclude that Guillen-Zapata’s Fourth Amendment rights were
not violated. We therefore AFFIRM the decision to deny Defendant-Appellant’s
motion to suppress statements and physical evidence.
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Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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