United States v. Gonzalez

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 98-50860

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

BLASA GONZALEZ,

Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Texas

September 24, 1999
Before POLITZ, DeMOSS, and BENAVIDES, Circuit Judges.

DeMOSS, Circuit Judge:

Blasa Gonzalez was stopped on a rural Texas road near Marfa,

Texas, and found to be transporting 64.5 pounds of marijuana.

Gonzalez was subsequently charged with importing the marijuana, in

violation of 21 U.S.C. §§ 952(a) and 960 (a)(1), and with

possessing the marijuana with intent to distribute, in violation of

21 U.S.C. § 841(a)(1). Gonzalez filed a motion to suppress,

arguing that the Terry stop leading to her arrest and the seizure

of the marijuana was not supported by reasonable suspicion and that
the search of her vehicle was not supported by probable cause. The

district court received evidence in a hearing on the motion and

entered a comprehensive order denying Gonzalez’ motion to suppress.

The jury returned a guilty verdict on the possession count only,

and Gonzalez was sentenced to 27 months confinement. This appeal

ensued.

Gonzalez does not challenge any aspect of her trial or

sentence. Rather, Gonzalez appeals only the district court’s

denial of her motion to suppress. For the reasons that follow, we

affirm.

FACTUAL BACKGROUND

In March 1998, Texas Border Patrol Agents Pigg and Baker were

assigned to the Border Patrol station in Marfa, Texas. Marfa is

located on Highway 67 between 65 and 70 miles north of the

International Port of Entry at Presidio, Texas. The stretch of

highway between the entry port at Presidio and Marfa does not

intersect with other highways or frequently traveled roads. To the

contrary, there are apparently only two roads leading off that

stretch of road, both of which turn into gravel or dirt roads and

also lead to the border. Aside from the port of entry at Presidio,

there are no other official points of entry within 100 miles.

There are, however, many shallow crossings of the Rio Grande River

that are routinely used by aliens seeking to illegally enter the

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United States and by persons seeking to smuggle narcotics into the

United States. As a result, Highway 67 is often used for

transporting illegal aliens or smuggling narcotics. See United

States v. Villalobos, 161 F.3d 285, 289 (5th Cir. 1998).

On March 5, 1998, Agents Pigg and Baker were assigned to

monitor the traffic on Highway 67. The agents began their shift at

6:00 a.m., positioning their marked border patrol car on Highway 67

about one mile south of Marfa and three miles north of a closed

border patrol checkpoint. See Villalobos, 161 F.3d at 285.

Both agents had significant experience in the area and were

familiar with the relatively few vehicles that commonly traveled

their stretch of Highway 67 in the morning. Agent Pigg testified

that the normal traffic consisted mainly of farm workers traveling

to local tomato farms and ranchers driving their children to

school. The agents were also in possession of at least two BOLO

(“be on the lookout”) reports. One BOLO told the agents to be on

the lookout for an individual named Jeremy Sambugard. The BOLO

stated that Sambugard was from Illinois, might be driving a Honda

Accord, and was suspected of being “involved in the smuggling of

contraband from Mexico to the U.S.” The BOLO instructed the agents

to inspect the vehicle for contraband if it was spotted. The

second BOLO advised agents to be on the lookout for a Honda Accord

with Illinois plates marked C75S473, registered to Sambugard. The

second BOLO also informed agents that the license plate may have

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been changed. Both BOLOS were issued by Special Customs Agent

Steve Coker and were based on information received from a

confidential informant almost two months before, in January 1998.

Shortly before 7:00 a.m., the agents observed a maroon Honda

Accord with Illinois plates proceeding northbound on Highway 67.

Neither agent recognized the vehicle as being one routinely seen in

the area. Agent Pigg recalled the BOLO for a vehicle with Illinois

plates. As the two agents began following the Honda, Agent Pigg

confirmed that there was a BOLO for a Honda Accord with Illinois

plates. The license plate number of the maroon Honda was C752473,

only one digit different than C75S473, the number reported in the

BOLO. While following Gonzalez, the agents ran the license plate

and learned that the Honda was registered under the name Jeremy

Sambugard, the same name listed in the BOLO report. The agents

followed the Honda to a location about one mile north of Marfa,

where they pulled Gonzalez over using their emergency lights.

Gonzalez told Agent Baker that she was a United States citizen

driving her boyfriend’s car to Dallas. The agents ran Gonzalez’

driver’s license and determined that it had been suspended. Agent

Baker asked Gonzalez whether she would consent to a canine

inspection of the vehicle, and she gave her consent. Agent Baker

then radioed for a canine unit.

The drug dog alerted to the presence of narcotics in the back

seat near the trunk. Border Patrol Agent Bates, the dog handler,

testified that he and Agent Pigg observed distinctive orange spots

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on the back seat where the drug dog alerted, on the dashboard, and

in the trunk, which in his experience indicated the use of a

silicone sealant. Agent Pigg then released the back seat hatch,

which revealed that the trunk area was higher than it should have

been and that the trunk contained a trap door. Beneath that trap

door, agents recovered the 64.5 pounds of marijuana. Gonzalez was

arrested and taken to the Marfa Border Patrol station where she was

interviewed by Customs Special Agent Steve Coker.

DISCUSSION

The district court’s fact findings on a motion to suppress are

reviewed for clear error only, while the district court’s legal

conclusions, including whether there was reasonable suspicion for

the stop, are reviewed de novo. Villalobos, 161 F.3d at 288. “We

have long pitched the standard of review for a motion to suppress

based on live testimony at a suppression hearing at a high level.”

United States v. Randall, 887 F.2d 1262, 1265 (5th Cir. 1989). The

evidence introduced at the suppression hearing is viewed in the

light most favorable to the government, as the prevailing party.

Villalobos, 161 F.3d at 288. Moreover, the district court’s denial

of the motion to suppress “should be upheld `if there is any

reasonable view of the evidence to support it.’” United States v.

Tellez, 11 F.3d 530, 532 (5th Cir. 1993) (quoting United States v.

Register, 931 F.2d 308, 312 (5th Cir. 1991)).

Border Patrol agents on roving patrol may stop a vehicle when

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they are aware of specific articulable facts that, together with

the rationale inferences that may be drawn from those facts,

reasonably warrant suspicion that the particular vehicle is

involved in illegal activities. See United States v. Brignoni-

Ponce, 95 S. Ct. 2574, 2582 (1975); Villalobos, 161 F.3d at 288.

Reasonable suspicion requires more than merely an unparticularized

hunch, but considerably less than proof of wrongdoing by a

preponderance of the evidence. See United States v. Sokolow, 109

S. Ct. 1581, 1585 (1989). The validity of a stop depends upon the

totality of the circumstances known to the agents making the stop.

Id. Factors that may be considered include, inter alia: (1) the

characteristics of the area in which the vehicle is encountered;

(2) the proximity to the border; (3) the usual patterns of traffic

on the particular road; (4) the agents’ previous experience with

traffic in the area; (5) information about recent border crossings

in the area; (6) the driver’s behavior; and (7) the appearance of

the vehicle. See Brignoni-Ponce, 95 S. Ct. at 2582; Villalobos,

161 F.3d at 288.

The district court held that the agents had reasonable

suspicion based upon: (1) the time of day and location of the stop;

(2) the nearly exact match between the Gonzalez’ car and the car

described in the BOLO; and (3) the agents’ collective experience

with traffic in the area of the stop. We agree. The Court has

previously recognized that the stretch of Highway 67 between

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Presidio and Marfa is a “notorious smuggling route.” Villabolos,

161 F.3d at 289. The area is sparsely populated and border patrol

agents may reasonably be familiar with most of the ordinary traffic

in the area. Id. Moreover, Highway 67 does not provide or permit

access to other frequently traveled routes. Indeed, all roads in

the area lead directly from the border to Marfa. Based upon the

geography of the area, the agents could reasonably conclude that

the Honda Accord originated its journey at the border. See United

States v. Inocencio, 40 F.3d 716, 722 (5th Cir. 1994); see also

Villalobos, 161 F.3d at 285 (placing the Marfa checkpoint at about

59 miles north of the Texas-Mexico border). The unfamiliar nature

of Gonzalez’ car, and the notorious and isolated character of the

area, factor in favor of the district court’s determination that

Gonzalez’ stop was supported by a reasonable suspicion of criminal

activity.

Gonzalez was first observed approximately three miles north of

the Marfa checkpoint, or about 62 miles from the border. See

Villalobos, 161 F.3d at 285. Notwithstanding the fact that

Gonzalez was more than the benchmark fifty miles from the border,

we have previously relied upon proximity to the border checkpoint

as a factor favoring a finding of reasonable suspicion. See

Villabolos, 161 F.3d at 289. Viewed in the totality of the

circumstances, including the geography of the area, Gonzalez’

proximity to the border provides some support for the district

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court’s determination that Gonzalez’ stop was supported by a

reasonable suspicion of criminal activity.

The agents testified they were familiar with normal traffic

and became suspicious when they did not recognize the vehicle and

noted it was traveling with out-of-state tags. In addition, the

agents testified that they were familiar with illegal operations

carried out in the area by individuals surreptitiously crossing the

Rio Grande River at areas of low water. The agents’ knowledge of

and experience in the area, while not independently sufficient, is

likewise entitled to some weight in our evaluation of whether the

stop was supported by reasonable suspicion. In sum, the first

through the fourth Brignoni-Ponce factors all tend to support the

agents’ stop.

The sixth and seventh Brignoni-Ponce factors, the behavior of

the driver and the appearance of the vehicle, do not tend to

support the stop in this case. The agents did not claim that

Gonzalez slowed down or drove erratically when followed. The

agents did not testify that she seemed nervous when stopped. But

while there was nothing about Gonzalez herself that was offered to

support the agents’ suspicion, there was a good bit of specific

information about the car she was driving. In the final analysis,

it is the BOLO that provides the tailoring that transforms what

could be characterized as an unparticularized hunch into a

reasonable suspicion.

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 A tip, even an anonymous tip, may provide the reasonable

suspicion necessary to justify an investigatory stop. Alabama v.

White, 110 S. Ct. 2412, 2415 (1990). Similarly, an alert or BOLO

report may provide the reasonable suspicion necessary to justify an

investigatory stop. United States v. Hensley, 105 S. Ct. 675, 682

(1985). Whether a particular tip or BOLO report provides a

sufficient basis for an investigatory stop may depend upon the

credibility and reliability of the informant, the specificity of

the information contained in the tip or report, the extent to which

the information in the tip or report can be verified by officers in

the field, and whether the tip or report concerns active or recent

activity, or has instead gone stale. See Alabama v. White, 496

U.S. at 328-32.

The tip in this case was not anonymous. See White, 110 S. Ct.

at 2415 (comparing the relative weight to be assigned to an

anonymous tip as opposed to information received from known and

previously reliable informant). To the contrary, Special Customs

Agent Steve Coker testified that the informant who provided the

information in this case had a proven track record of providing

information that led to arrests and seizures of narcotics.

Likewise, the BOLO reports at issue in this case were specific,

identifying the make and model of the car, the state and license

plate number with only a minor error, the registered owner of the

car, and the type of activity suspected. Agents corroborated the

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information in the BOLO by confirming that the car observed was

registered to Jeremy Sambugard. We conclude that the information

provided in the BOLO was sufficiently reliable and specific to

support a minimally intrusive Terry stop of Gonzalez’ car.

Gonzalez maintains that the tip must nonetheless be discounted

because the two month period between the time Special Customs Agent

Steve Coker gathered the information and the time Gonzalez was

stopped requires that we conclude as a matter of law that the tip

had gone stale. Gonzalez’ argument is unavailing. “Staleness is

to be determined on the facts of each case.” United States v.

Webster, 734 F.2d 1048, 1056 (5th Cir. 1984). This Court has

expressly rejected the argument that staleness can be determined by

simply a “mechanical counting of the time between” the time the tip

is received and the time the tip is used. Id. Rather, whether a

tip has gone stale depends upon the nature of the tip and the

nature of the criminal activity alleged. The tip in this case was

slightly less than two months old. See Villalobos, 161 F.3d at 290

(rejecting argument that two month old anonymous tip was stale, and

therefore unreliable for purposes of a reasonable suspicion

determination). The BOLOS advised that Sambugard and his Honda

Accord were suspected of being involved in the smuggling of

contraband into the United States from Mexico. Moreover, there

was no indication that the events described in the first BOLO were

either predicted to occur at a certain time or had already come to

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pass. See id. (tips that concern an ongoing pattern of criminal

activity may remain viable longer than those predicting criminal

activity on a date certain). We, therefore, reject Gonzalez’

argument that the tip contained in the BOLO reports had gone stale

and conclude that the BOLO reports, combined with the other factors

discussed in this opinion, justified the Terry stop of Gonzalez’

vehicle.

We likewise decline to find error predicated upon the search.

The district court found that Gonzalez consented to the search,

and alternatively, that the search was supported by probable cause.

Gonzalez has not directly challenged either of these rulings on

appeal.

CONCLUSION

The district court’s denial of Gonzalez’ motion to suppress is

in all respects AFFIRMED.

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