Case: 10-50063 Document: 00511379201 Page: 1 Date Filed: 02/10/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 10, 2011
No. 10-50063 Lyle W. Cayce
Clerk
United States of America
Plaintiff-Appellee
v.
Jorge Olivares-Pacheco
Defendant-Appellant
Appeal from the United States District Court for the
Western District of Texas
Before DAVIS, WIENER, and BENAVIDES, Circuit Judges.
WIENER, Circuit Judge:
Defendant-Appellant Jorge Olivares-Pacheco appeals the district court’s
denial of his motion to suppress evidence gathered by two Border Patrol Agents
during a traffic stop on Interstate 20 near Odessa, Texas. That evidence led to
Olivares-Pacheco’s conviction for transporting illegal aliens within this country
in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). Concluding that the facts articulated
by the agents, as known by them at the time of the stop, were insufficient to
constitute reasonable suspicion, we reverse the district court’s denial of the
suppression motion and vacate Olivares-Pacheco’s conviction and sentence.
Case: 10-50063 Document: 00511379201 Page: 2 Date Filed: 02/10/2011
No. 10-50063
I. Facts and Proceedings
The vehicle being driven by Olivares-Pacheco was spotted by the agents
at approximately 10:30 A.M. on Monday, September, 14, 2009, near Odessa,
Texas (well over 200 miles from the United States-Mexico border), traveling east
on Interstate 20 (“I-20”). Olivares-Pacheco’s vehicle was an extended-cab
Chevrolet truck, occupied by himself and five other adult individuals. The
agents observed the truck as they were driving west on I-20, made a U-turn
across the median, and began to follow it. While following the truck, the agents
observed that it was dragging some brush. The agents then ran a record check
on the vehicle and learned that it was registered in Garland, Texas, in the
Dallas-Fort Worth metroplex. When they then drove up along the left side of the
vehicle, which was traveling in the right lane, none of the passengers made eye
contact with the agents. They saw one of the passengers, who was seated in the
front seat, point towards an unremarkable field on the right side of the vehicle,
the one opposite from the agents. All of the passengers then looked right,
towards the field; none looked at the agents. (At the suppression hearing, the
agents ventured the opinion that this conduct was “an obvious attempt to avoid
making eye contact,” even though neither agent could confirm whether the
passenger who pointed, or any others in the truck, had seen or noticed them.)
The agents decided to stop the truck, after which Olivares-Pacheco and the other
passengers admitted to the agents that they were in the United States illegally.
Olivares-Pacheco was indicted for transporting illegal aliens in violation
of 8 U.S.C. § 1324(a)(1)(A)(ii). He filed a motion to suppress the evidence from
the traffic stop, contending that it was not supported by reasonable suspicion
and was thus a violation of the Fourth Amendment. Olivares-Pacheco pleaded
guilty to one count of transporting illegal aliens. He waived his right to appeal
the conviction and sentence, except as to his motion to suppress.
2
Case: 10-50063 Document: 00511379201 Page: 3 Date Filed: 02/10/2011
No. 10-50063
II. Discussion
A. Standard of Review
We review the factual findings of the district court for clear error and its
legal conclusions de novo.1 We “review the denial of a motion to suppress in the
light most favorable to the prevailing party.” 2
B. Applicable Law
“To temporarily detain a vehicle for investigatory purposes, a Border
Patrol agent on roving patrol must be aware of specific articulable facts together
with the rational inferences from those facts, that warrant a reasonable
suspicion that the vehicle is involved in illegal activities, such as transporting
undocumented immigrants.”3 “[T]he stop and inquiry must be reasonably
related in scope to the justification for their initiation. The officer may question
the driver and passengers about their citizenship and immigration status, and
he may ask them to explain suspicious circumstances, but any further detention
or search must be based on consent or probable cause.”4 Because Olivares-
Pacheco admitted his immigration status before any prolongation of the
detention, we review only whether the agents had reasonable suspicion 5 to make
the stop, not whether there was probable cause for any prolongation of the
detention. “The reasonable suspicion analysis is a fact-intensive test in which
1
United States v. Garcia, 604 F.3d 186, 189 (5th Cir. 2010).
2
Id.
3
United States v. Rangel-Portillo, 586 F.3d 376, 379 (5th Cir. 2009) (citation and
internal quotation marks omitted); accord United States v. Brignoni-Ponce, 422 U.S. 873, 884
(1975).
4
Brignoni-Ponce, 422 U.S. at 881-82.
5
“Although an officer’s reliance on a mere hunch is insufficient to justify a stop, the
likelihood of 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.” United States v.
Arvizu, 534 U.S. 266, 274 (2002) (citations and quotation marks omitted).
3
Case: 10-50063 Document: 00511379201 Page: 4 Date Filed: 02/10/2011
No. 10-50063
the court looks at all circumstances together to weigh not the individual layers,
but the laminated total.”6 “Factors that ordinarily constitute innocent behavior
may provide a composite picture sufficient to raise reasonable suspicion in the
minds of experienced officers.” 7
We have emphasized that eight factors predominate in this sort of stop: (1)
the area’s proximity to the border; (2) the characteristics of the area; (3) usual
traffic patterns; (4) the agents’ experience in detecting illegal activity; (5) the
driver’s behavior; (6) the aspects or characteristics of the vehicle; (7) information
about recent illegal trafficking of aliens or narcotics in the area; and (8) the
number of passengers and their appearance and behavior.8
C. Analysis of the Facts on Which the Agents Relied
The stop in this case was made well over 200 miles from the United States-
Mexico border. Proximity to the border is a “paramount factor,”9 and a “car
traveling more than fifty miles from the border is usually viewed as being too far
from the border to support an inference that it originated its journey there.” 10
If there is no reason to believe that the vehicle came from the border, the
remaining factors must be examined charily.11 We agree with the district court
that there is no reason to believe that this truck, traveling east on I-20 more
than 200 miles from the border, had originated its journey in Mexico. Therefore,
this important factors cuts against the government, so we examine the
remaining factors charily.
6
United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001).
7
Id. at 427-28.
8
Id. at 427.
9
United States v. Orozco, 191 F.3d 578, 581 (5th Cir. 1999).
10
Id. (citation and quotation marks omitted).
11
See Jacquinot, 258 F.3d at 428.
4
Case: 10-50063 Document: 00511379201 Page: 5 Date Filed: 02/10/2011
No. 10-50063
The agents articulated the following facts as supporting their reasonable
suspicion: (1) the presence of a piece of brush under Olivares-Pacheco’s truck, (2)
the pointing by one of the passengers to a field in the opposite direction of the
agents, (3) the truck was registered in the Dallas-Fort Worth area, (4) the alien-
smuggling reputation of this stretch of I-20, and (5) the agents’ experience.12
i. The Brush
The agents theorize that the brush under Olivares-Pacheco’s truck was
collected while driving off-road, possibly to avoid detection or to cross the border.
The physical appearance of a vehicle may add to an agent’s reasonable suspicion.
We have held, for example, that fresh mud and scratches on a car’s tires and
exterior may heighten suspicion.13 In that case, however, the truck was stopped
less than fifteen miles from an unmanned border crossing, greatly increasing the
likelihood that the mud and scratches were taken on while crossing the border.
The instant facts, however, conjure up far less suspicion. Stopped more
than 200 miles from the border, Olivares-Pacheco’s truck could have picked up
the brush in myriad unsuspicious ways. The government concedes that West
Odessa is full of brush and that the brush could have been picked up, for
example, in a parking lot. The truck could have been off road because the
passengers were working; the truck could have pulled off of I-20 to change
drivers or take a break; it could have traveled on a service road; it could have
picked up brush dropped from another vehicle. Indeed, West Texas is full of
brush, and any northerly or southerly wind could have blown brush onto the
12
We note that, although the agents need not have reasonable suspicion to simply
follow and observe a vehicle, the agents in this case made a U-turn, crossed the median of I-20,
and began following Olivares-Pacheco after observing only that he was driving an
unremarkable truck carrying an as-then-undetermined number of Hispanic individuals. We
thus must begin with some question as to the agents reasons heading up to the stop in the first
place.
13
United States v. Muniz-Ortega, 858 F.2d 258, 259 (5th Cir. 1988).
5
Case: 10-50063 Document: 00511379201 Page: 6 Date Filed: 02/10/2011
No. 10-50063
East-West Interstate. We must also wonder rhetorically about a piece of brush
becoming affixed to the bottom of a vehicle and not becoming dislodged during
a 200-mile trek from the border. Not only are innocent explanations available,
but they are probable.
Given that Olivares-Pacheco was stopped on the Interstate so far from the
border and that brush could have been picked up in numerous legitimate ways,
the fact that the truck was dragging a bit of brush in that part of West Texas
generates minimal if any suspicion.
ii. Eye Contact
Evidence of suspicious and peculiar activity by the passengers of a vehicle
may add to the reasonableness of suspicion. The avoidance of eye contact by
passengers, however, is not entitled to any weight.14 Other actions that attend
the avoidance of eye contact may provide some weight,15 but there is no evidence
of any other suspicious activity that attended the avoidance of eye contact in this
case. The fact that one of the passengers pointed to an open field does not
signify suspicious behavior any more than it constitutes innocent behavior — it
is just unremarkable behavior on a road trip. This passenger could have been
pointing to anything: an animal, a tree, etc. Indeed, the agents could not even
confirm whether this passenger was even aware of their presence; all they saw
was “one female pointing to an open clearing.” This fact provides little to no heft
to the government’s case.
14
See Rangel-Portillo, 586 F.3d at 381.
15
See United States v. Nichols, 142 F.3d 857, 868 (5th Cir. 1998) (“[N]ot only did
Nichols avoid making eye contact, but he also did not even look in their direction when they
illuminated their headlights, nor did he look in either direction down the road as if to see
which way to go. Instead, Nichols simply stared straight ahead into the brush.”); United
States v. Garcia, 732 F.2d 1221, 1222 (5th Cir. 1984) (noting that the illegal aliens not only
avoided eye contact but “[w]hen Baron shined his flashlight into the cab . . . the male
passengers attempted to conceal themselves by ducking and scrambling down below the
window”).
6
Case: 10-50063 Document: 00511379201 Page: 7 Date Filed: 02/10/2011
No. 10-50063
iii. Truck Registration
The truck Olivares-Pacheco was driving was registered in the Dallas-Fort
Worth area, and the agents testified that this is a common destination for those
transporting illegal aliens. A vehicle’s registration may, under some
circumstances, add to reasonable suspicion. We have ruled that a Kansas
license plate in Texas may add to reasonable suspicion when it was known that
there was a robust drug smuggling trade route to Kansas at the time.16 We have
also held that the fact that a car was registered in San Angelo, yet was taking
an indirect route to San Angelo which was less-heavily patrolled, added to
reasonable suspicion.17
The fact that the truck in the instant case was registered in the Dallas-
Fort Worth area adds no suspicion whatsoever. It is statistically far more likely
that an innocent person who lives in the Dallas-Fort Worth area would take an
interstate highway to his or her home than would an alien-trafficker. Indeed,
the Dallas-Fort Worth area is a huge metropolitan area, and it is more than
reasonable to assume that a significant portion of the legitimate traffic traveling
east on I-20 from Odessa is headed for that area. The truck was neither headed
for a faraway place, nor was it taking some sort of suspicious, indirect route.
Rather, Olivares-Pacheco was traveling due east on the most direct route to one
of the largest metropolitan areas in Texas, where his truck’s registration —
presumably like his identification — would indicate is his home. Furthermore,
it is a fair assumption that most large areas afford work and anonymity and
thus are magnets for illegal aliens
For these reasons, the fact that the truck was registered in Garland, Texas
provides minimal if any suspicion. Indeed, if every similarly situated vehicle
16
See Jacquinot, 258 F.3d at 430.
17
See United States v. Zapata-Ibarra, 212 F.3d 877, 883-84 (5th Cir. 2000).
7
Case: 10-50063 Document: 00511379201 Page: 8 Date Filed: 02/10/2011
No. 10-50063
that is registered in Dallas and traveling east on I-20 from Odessa were to be
pulled over, traffic would be backed up for untold miles.
iv. Interstate 20
A reputation as a route commonly used for transporting illegal aliens may
add to the reasonableness of suspicion, even if the road is used for other lawful
purposes. This information alone, however, is not sufficient to constitute
reasonable suspicion.18 The agents testified that this stretch of I-20 is commonly
used for the transportation of drugs and aliens; however, the overwhelming
majority of traffic on this stretch of I-20 is unquestionably legal, and the
government has not shown that aliens are more or less likely to use Interstates
than back roads. The amount of suspicion added by this evidence, if any, is
minimal.
v. Experience
These agents had considerable experience: twelve and seven years,
respectively, with four and one-and-a-half years at the Midland border patrol
station, respectively. This factor weighs in favor of the government. Absent
articulable observations about a vehicle, its operator, its operation, or its cargo,
however, experience alone cannot supply reasonable suspicion.
vi. Conclusion
Together, the evidence proffered by the government provides minimal
suspicion. Rather, the facts known to the officers at the time of the stop portray
an unremarkable and suspicionless situation: (1) This stop occurred over 200
miles from the United States-Mexico border; (2) it occurred on I-20, not a back
road or indirect route to Dallas; (3) it did not occur near a checkpoint; (4) it
occurred on a Monday at 10:30 A.M., not in the dark of night nor close to a shift-
change hour, but at about the most innocuous conceivable hour; (5) the vehicle
18
See United States v. Chavez-Chavez, 205 F.3d 145, 148 (5th Cir. 2000).
8
Case: 10-50063 Document: 00511379201 Page: 9 Date Filed: 02/10/2011
No. 10-50063
was headed west-to-east, not south-to-north, away from the border; (6) the
vehicle was unremarkable in all respects — it was neither “too clean” nor “too
dirty,” neither over- nor under-loaded, neither brand new nor ancient, nor did
the agents articulate that this was a brand or style known for alien smuggling,
etc.; (7) the vehicle was neither speeding nor traveling unusually slow, but at the
speed limit, and the agents did not point to a single traffic infraction or driving
irregularity committed by the driver or a passenger in the vehicle; (8) Olivares-
Pacheco did not exhibit any suspicious driving maneuvers; (9) the vehicle was
registered to Olivares-Pacheco’s wife in the greater Dallas area, wholly
consistent with the truck’s direction and eventually claimed destination; (10) the
number of persons in the truck — six — was neither illegal nor excessive; (11)
other than the claimed furtive pointing to and looking at a field alongside the
highway, the passengers did not appear nervous or unusual in any way; none
was sitting unusually erect, or slumping, or out of sight, or anything else
peculiar; and all six passengers were adults, some male and some female, and
not any children to “fake” family relations; and (12) the agents articulate no
explanation whatsoever for their U-turn.
Quite simply, none of the evidence we normally credit as indicative of
reasonable suspicion (as outlined in detail below) is present in this case. Rather,
the truck and the passengers were unremarkable in every respect. Even in
combination, the claimed suspicious facts articulated by the agents construct the
very slenderest of reeds on which to lean their suspicion.
D. Fifth Circuit Case law
We are convinced that the district court in the instant case denied the
motion to suppress on the most de minimis articulation of facts of any case we
have encountered. A concededly non-exhaustive search of our recent opinions
demonstrates that we require more for a stop such as this one than the agents
have identified. A review and discussion of our previous decisions illustrates the
9
Case: 10-50063 Document: 00511379201 Page: 10 Date Filed: 02/10/2011
No. 10-50063
type of articulated facts that we have held to be sufficient and the type that has
not.
i. Cases In Which We Have Found Reasonable Suspicion
In United States v. Garcia,19 we were presented with the following
articulation of facts. The vehicle that was stopped was carrying a camper, which
are commonly used to transport aliens. The camper had an unusually heavy and
overloaded appearance and its windows were fogged, indicating that it contained
living beings. The particular stretch of highway where the vehicle was stopped
was a common alien-transporting route. The passengers had an unwashed and
unkempt appearance, and they ducked and avoided detection by the officers.
The vehicle was stopped at a late hour and was traveling at an unusually slow
speed. We noted that a vital element is the belief on the part of the officers that
the vehicle came from the border, which was lacking, but we were convinced that
the surfeit of evidence outlined above was sufficient to overcome this obstacle.
In United States v. Nichols,20 the officer articulated the following facts,
which we held constituted reasonable suspicion. The car was carrying a toolbox,
and this officer had previously made arrests when he found illegal aliens
concealed in such a container. The truck was about 30 miles from the border on
a road that was notorious for transporting aliens, and the only improvements
within 20 miles of the stop were ranches. The vehicle was further suspicious
because it was a work truck, yet it lacked a company logo, was unusually clean,
and was on the road a half-hour earlier than utility vehicles normally appear.
The defendant stopped for 25 seconds at a stop sign and did not look at the
officers when they shined their headlights on his truck. The traffic at the time
19
732 F.2d 1221 (5th Cir. 1984).
20
142 F.3d 857 (5th Cir. 1998).
10
Case: 10-50063 Document: 00511379201 Page: 11 Date Filed: 02/10/2011
No. 10-50063
was light, yet the defendant was traveling at an unusually slow speed, and he
swerved off the road twice while he was being followed.
In United States v. Orozco,21 the government articulated the following
facts, which we held were sufficiently suspicious to justify the stop. The
arresting officer had personally apprehended twenty loads of illegal aliens in the
same area in the previous five months and knew that a majority of the
transporters of aliens pass through this particular stretch of I-20 on weekends
between 9 A.M. and 10 A.M., precisely when the defendant was stopped. The
truck appeared to be heavily loaded, the tires were underinflated, the bed was
covered with a tarp, and the spare tire was on the back seat so as to make room
for a large cargo in the bed of the truck. The driver was weaving and bouncing,
and was evasive and would not respond to the officer when he honked and
displayed his uniform. Although the traffic stop was made a significant distance
from the border (200 to 300 miles), we held that this evidence was sufficient to
constitute reasonable suspicion despite its lack of border proximity.
In United States v. Morales,22 we were satisfied that the arresting officer
articulated sufficient facts. In that year alone, he had apprehended more than
600 aliens on the notorious stretch of the highway. The vehicle bounced over
bumps and the tires were underinflated, indicating that the vehicle was carrying
a heavy load. The vehicle had a fiberglass cover, which is common when
transporting aliens. The driver was behaving suspiciously: He did a double take
and slowed down when he saw the officer and began swerving in the road after
that. The agents were further suspicious because the vehicle was passing
through the area at a time of the day when it was common to transport aliens,
and because the officer ran the vehicle’s registration and discovered it was
21
191 F.3d 578 (5th Cir. 1999).
22
191 F.3d 602 (5th Cir. 1999).
11
Case: 10-50063 Document: 00511379201 Page: 12 Date Filed: 02/10/2011
No. 10-50063
registered to someone named Philips, which did not match the driver’s Hispanic
appearance.
In United States v. Cardona,23 we affirmed the denial of the motion to
suppress. The vehicle was stopped close to the border. It was riding low, even
though there only appeared to be two persons in the vehicle. The trunk lock had
been removed, which the agents surmised was an attempt to allow for free flow
of air to apparently concealed passengers. The driver slowed down and started
weaving when he saw the officers.
In United States v. Inocencio,24 we were convinced of reasonable suspicion
by the following facts. The vehicle had triggered a sensor designed to identify
vehicles avoiding routine traffic. The owner of the ranch where the car was
spotted had specifically identified the vehicles that were authorized to access the
private ranch road, and this vehicle was not one of them. Furthermore, the
defendant’s vehicle was an unfamiliar and atypical oil-field vehicle with no
company logos. The agents did not recognize the driver, and he was wearing
clean work clothes. The government also advanced that there was an apparent
lead car-load car configuration.
In United States v. Villalobos,25 we confronted a situation in which the car
was stopped close to a notorious area of the border at 2:20 A.M. The officers
were working from a tip that described this specific type of car, and they did not
otherwise recognize it as local. The car had a temporary tag, which is something
that alien transporters often use, and it appeared to be part of a lead car-load car
configuration. The driver decelerated when he saw the officers, even though he
had not been speeding previously.
23
955 F.2d 976 (5th Cir. 1992).
24
40 F.3d 716 (5th Cir. 1994).
25
161 F.3d 285 (5th Cir. 1998).
12
Case: 10-50063 Document: 00511379201 Page: 13 Date Filed: 02/10/2011
No. 10-50063
In United States v. Jacquinot,26 we confirmed reasonable suspicion, even
though the vehicle was found 75 miles from the border. There was strong
support that the vehicle had come from the border because it had activated
sensors close to the border, and there were no major roads intersecting the
highway between the border and the point where the defendant was stopped.
Moreover, the defendant was driving a work truck before 6 A.M. on a Sunday
morning, which is highly unusual. The defendant slowed to 15 miles per hour
below the speed limit when he noticed the officer, even though the driver had not
previously been speeding. The driver stopped at a stop sign for five seconds and
then made an unusual turn. The vehicle was even more suspicious because it
did not have a park sticker, which would have indicated that it was carrying
tourists, and because it bore a Kansas license plate, and the agent knew that
much drug smuggling had been destined for Kansas.
In United States v. Chavez-Chavez,27 we affirmed based on the following
facts. The vehicle was stopped close to a checkpoint. The vehicle was a van,
which is commonly used in alien trafficking, and it had rigid suspension, which
the officers knew to be common in alien transporting because that allows the
vehicle to carry more passengers without sagging. The passengers had a dirty
appearance at 8 A.M., which more likely indicates that they had been in the
brush for an extended period of time rather than that they had been working
very early in the morning.
In United States v. Zapata-Ibarra,28 the panel majority held that the
government articulated sufficient facts to constitute reasonable suspicion. The
van was stopped close to the border on a road that had a reputation for alien
26
258 F.3d 423 (5th Cir. 2001).
27
205 F.3d 145 (5th Cir. 2000).
28
212 F.3d 877 (5th Cir. 2000).
13
Case: 10-50063 Document: 00511379201 Page: 14 Date Filed: 02/10/2011
No. 10-50063
transporting. The van was registered in San Angelo, which was suspicious
because the driver appeared to be taking an indirect route to San Angelo so as
to avoid the more heavily-patrolled roads. The van contained numerous
passengers, and they appeared to be slouching (although we gave this fact little
weight because the passengers could have been sleeping).
In United States v. Muniz-Ortega,29 we affirmed the denial of the
suppression motion based on the following facts. The vehicle that was driving
away from the Rio Grande River was a large, flat-bed truck, which is uncommon
in this area but for the transportation of illegal aliens. The truck had taken on
fresh mud and exhibited debris and scratches, indicating that it had recently
been off road in the vicinity of the border. When the driver noticed the officer,
he immediately turned his head away.
In United States v. Galvan-Torres,30 we confronted a situation in which the
officers encountered the vehicle close to the border on a sparsely traveled road
known for drug smuggling. The vehicle was discovered after midnight and in
close proximity to another car. When the officers turned around to observe the
vehicles, they noticed that one of the vehicles had been freshly abandoned with
its occupants fleeing.
In United States v. Samaguey,31 we held that reasonable suspicion existed
based on the following facts. The vehicle appeared to have come from the border
because it seemed to be the vehicle that had tripped periodic sensors for hours.
A lone Hispanic male was driving, and the vehicle was registered in someone
else’s name, both facts that are common among drug smugglers. Furthermore,
29
858 F.2d 258 (5th Cir. 1988).
30
350 F.3d 456 (5th Cir. 2003).
31
180 F.3d 195 (5th Cir. 1999).
14
Case: 10-50063 Document: 00511379201 Page: 15 Date Filed: 02/10/2011
No. 10-50063
the vehicle was traveling on a sparsely traveled road, and it proceeded below the
speed limit after the driver saw the patrol car.
ii. Cases In Which We Have Not Found Reasonable Suspicion
In United States v. Moreno-Chaparro,32 we reversed the district court and
held that the following facts did not constitute reasonable suspicion. The vehicle
was stopped more than 60 miles from the border. We did not ascribe significant
weight to the fact that the driver was surprised to see an officer at a checkpoint
and that a man was driving a vehicle registered in a woman’s name. Neither did
we accord much weight to the fact that the vehicle was traveling during a shift
change. The officer could not point to anything suspicious about the truck other
than that it was a Chevrolet, which is a brand that officers carefully watch.
In United States v. Rangel-Portillo,33 we reversed the district court and
held that the government agents had not articulated sufficient facts to constitute
reasonable suspicion, even though the vehicle was stopped at a Wal-Mart that
was 500 yards from the border in a well known alien-transporting area. We gave
little weight to the fact that the driver made direct eye contact with the officer
but the passengers looked sweaty and stone faced. Neither did we find it
remarkable that the passengers left Wal-Mart without any Wal-Mart shopping
bags. We were impressed that there was no erratic driving, no unusual
characteristics of the car, no informant, and the time of the stop was not
suspicious.
In United States v. Rodriguez-Rivas,34 we again reversed, even though the
stop was made during a shift change on a highway often used to avoid detection
by agents. We gave little weight to the shift change evidence, noting that the
32
180 F.3d 629 (5th Cir. 1998).
33
586 F.3d 376 (5th Cir. 2009).
34
151 F.3d 377 (5th Cir. 1999).
15
Case: 10-50063 Document: 00511379201 Page: 16 Date Filed: 02/10/2011
No. 10-50063
road was also commonly used to access a national park. Neither did we think
the evidence that the car did not have license plates was sufficient to constitute
reasonable suspicion, even though plates are required in Texas.
In United States v. Melendez-Gonzalez,35 we reversed the district court
because the mere fact that two cars are traveling together does not create
reasonable suspicion.
iii. The Instant Stop
The continuum demonstrated by the foregoing review of our case law
convinces us that, if we were to affirm the district court in this case, we would
be doing so based on facts of an unprecedented suspicionless nature. Of the
cases in which we affirmed that could plausibly be said to have facts similar in
suspicion to the ones here — Zapata-Ibarra, Muniz-Ortega, Galvan-Torres, and
Samaguey, being generous to the government — none involved stops far from the
border (or contained strong reason to believe that the vehicle had come from the
border). In the instant case Olivares-Pacheco was stopped more than 200 miles
from the border, and there was no plausible indication that he had traveled from
the border. Proximity to the border is a “paramount factor,” and, again, we must
look at the other evidence charily if such proximity is not present.
Even if we assume arguendo that the facts in the instant case are as
suspicious as in any of the cases cited above in which we affirmed — and we are
convinced that they are not — the fact that Olivares-Pacheco was no where near
the border makes our decision a much easier one. Indeed, of the cases in which
the vehicle was stopped far from the border, the articulated reasons for suspicion
were far greater than in the instant case. The only credible basis for suspicion
here is the experience of two dedicated border patrol agents, who sniffed out the
alien smuggling here on the basis of nothing more than intuition gained over the
35
727 F.2d 407 (5th Cir. 1984).
16
Case: 10-50063 Document: 00511379201 Page: 17 Date Filed: 02/10/2011
No. 10-50063
years (we will not accuse these agents of ethnic profiling simply because they
made a U-turn and then stopped a completely unremarkable truck with nothing
more apparent than the presence of six Hispanic passengers).
Indeed, the facts in this case demonstrate less suspicion than many other
cases in which we reversed the district court’s denial of suppression or affirmed
the grant of suppression. The facts in Rangel-Portillo (set forth above) are
certainly more suspicious. We are satisfied that, if we were to side with the
government in this case and affirm the district court’s denial of the defendant’s
motion to suppress, we would be doing so on the barest articulation of facts that
we have ever credited as constituting reasonable suspicion. This we are
unwilling to do.
III. Conclusion
After reviewing our prior case law and the facts of this case, we are
convinced that the agents failed to articulate facts sufficient to constitute
reasonable suspicion for the stop that resulted in Olivares-Pacheco’s conviction.
We REVERSE the district court’s denial of the suppression motion and VACATE
Olivares-Pacheco’s conviction and sentence.
17