IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50156
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EUGENIO ZAPATA-IBARRA,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
May 19, 2000
Before GARWOOD, WIENER and DeMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant Eugenio Zapata-Ibarra (Zapata-Ibarra) was
indicted for two counts of transporting an alien illegally within the
United States in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). Zapata-
Ibarra moved to suppress evidence which he says was obtained by the
government as a result of an unconstitutional stop and search of his
vehicle. Zapata-Ibarra having waived trial by jury, the district court
carried the motion to suppress with the bench trial. Following the
bench trial, the district court denied the motion, and Zapata-Ibarra was
convicted and subsequently sentenced. Zapata-Ibarra now appeals,
challenging only the denial of the motion. We affirm.
Facts and Proceedings Below
On Monday, February 16, 1998, United States Border Patrol agent
Jesus Zertuche (Zertuche) was patrolling Ranch Road 2523 (RR 2523), also
referred to as Hamilton Lane, outside of Del Rio, approximately twenty-
four miles north of the Mexican border. The paved, two lane RR 2523
runs generally north-south, east of and very roughly parallel to U.S.
Highway 277, which is the main thoroughfare leading to Del Rio from the
north. Although they are roughly parallel to each other, Highway 277
is much the straighter and runs more directly north, while Ranch Road
2523 starts out of Del Rio running in a more easterly direction and
subsequently turns to the north. One of the important differences
between these two roadways is that a Border Patrol checkpoint is located
on Highway 277, about 27 miles outside of Del Rio, but there is no
checkpoint on RR 2523. Border Patrol agents, therefore, regularly
monitor RR 2523, particularly when Highway 277's checkpoint is open–a
task Zertuche was performing on February 16, 1998.
At approximately 9:30 p.m., Zertuche, who was driving south on RR
2523 in his marked patrol car and was about fifteen miles outside of Del
Rio, spotted a blue van traveling northbound at a normal speed, between
fifty and fifty-five miles per hour. Although the Border Patrol had not
issued any reports of suspicious activity that evening on RR 2523 or
anywhere else along the Del Rio area of the border, Zertuche decided to
follow the van, making a U-turn and accelerating to approach the van.
2
Zertuche also turned on his high beam lights, so that he could better
observe the van and its passengers. As Zertuche drew closer to the van,
he noticed that the van “slowed down considerably” and that the driver
had “a hard time keeping the vehicle within the lane,” which indicated
to Zertuche that the driver was nervous and “possibly looking in the
rear view mirror to see who’s behind him.” Zertuche also perceived
“several” occupants in the vehicle and, although Zertuche could not
discern the occupants’ nationality, “some” appeared to be “slouched
down” as if, in his opinion, “to avoid being detected.” Not recognizing
the van as local, Zertuche ran a license plate check which revealed that
the van was registered out of San Angelo, Texas. Having served as a
Border Patrol agent in the Del Rio area for approximately ten years,
Zertuche noted that Highway 277, not RR 2523, was the most direct route
from the Del Rio area to San Angelo and reasoned that the van’s driver
might have chosen this indirect route to avoid Highway 277's Border
Patrol checkpoint which, as he knew, was open that evening. He
explained, using a map, that to get to San Angelo from Del Rio, and
avoid the checkpoint on Highway 277, one would take RR 2523 north to
Highway 377, then go west on Highway 377 until it joins Highway 277 at
a point north of (beyond) the checkpoint, and then turn north and
continue thus on Highway 277.
His suspicion aroused, Zertuche stopped the van for an immigration
inspection. Upon questioning, the driver of the van, Zapata-Ibarra,
stated he was a resident alien and provided an I-94 permit, a document
3
allowing him to be in the United States legally. The other four
passengers of the van, however, identified themselves as Mexican
citizens without immigration documents. Zertuche then advised Zapata-
Ibarra and his passengers of their rights, and they were subsequently
transferred to the Del Rio Border Patrol Station for processing. While
detained, Zapata-Ibarra admitted to Border Patrol agent Rafael Gomez
(Gomez) that he knew his passengers were illegal aliens and had made
arrangements with them in Acuna, Mexico to pick them up on the United
States side of the border and transport them to San Angelo.
Zapata-Ibarra was charged in a two-count indictment with
transporting aliens illegally in the United States in violation of 8
U.S.C. § 1324(a)(1)(A)(ii). Before trial, defense counsel moved to
suppress evidence obtained by the government as a result of the stop and
search of Zapata-Ibarra’s van. Zapata-Ibarra having waived a jury
trial, the district court carried the suppression motion with the bench
trial.
Zertuche, Gomez, and two of Zapata-Ibarra’s passengers, Porfilio
Santos-Mejia (Santos-Mejia) and Francisco Pena-Cesillio (Pena-Cecilio),
testified at Zapata-Ibarra’s trial. Zertuche recounted the events
leading to the stop of Zapata-Ibarra’s van, the bases for his suspicions
of illegal activity, and the results of his questioning Zapata-Ibarra
and the passengers during the investigatory stop. Gomez’s testimony
provided the details of Zapata-Ibarra’s statement which he made at the
Border Patrol Station. In their testimony, Santos-Mejia and Pena-
4
Cesillio described their agreement with Zapata-Ibarra, whereby he would
pick them up at a store on the United States side of the border and
transport them to San Angelo.
At the end of trial, the district court denied Zapata-Ibarra’s
suppression motion, concluding that Zertuche had reasonable suspicion
to make an investigatory stop. The district court also found Zapata-
Ibarra guilty on both counts alleged in the indictment. The district
court subsequently sentenced Zapata-Ibarra to two concurrent ten-month
terms of imprisonment, followed by a three year period of supervised
release. Zapata-Ibarra now appeals, complaining only of the denial of
his suppression motion.
Discussion
The district court found that Zertuche held an objectively
reasonable suspicion that Zapata-Ibarra’s van was transporting illegal
aliens. In reaching this conclusion, the district court in its orally
delivered ruling specifically mentioned the following factors:
Zertuche’s ten and one-half years experience patrolling the Del Rio
area, including RR 2523; the van’s proximity to the border; the van’s
San Angelo registration; the fact that RR 2523 is not the most direct
route from Del Rio to San Angelo; the number of passengers in the van;
and their apparent slouching.
When reviewing a district court’s ruling on a motion to suppress
based on live testimony, we will accept the district court’s factual
findings “unless the findings are clearly erroneous or influenced by an
5
incorrect view of the law.” United States v. Lanford, 838 F.2d 1351,
1354 (5th Cir. 1988). We will not conclude 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. Castenada, 951 F.2d
44, 47 (5th Cir. 1992) (citing United States v. Fernandez, 887 F.2d 564,
567 (5th Cir. 1989)). We view the evidence in the light most favorable
to the party that prevailed in the district court–in this case, the
government. See United States v. Orozco, 191 F.3d 576, 581 (5th Cir.
1999), cert. denied, 120 S.Ct. 996 (2000). 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 Zapata-Ibarra’s vehicle. See United States v.
Inocencio, 40 F.3d 716, 721 (5th Cir. 1994) (citing United States v.
Cardona, 955 F.2d 976, 977 (5th Cir. 1992)).
Zapata-Ibarra contends that Zertuche lacked reasonable suspicion
to stop the van. We disagree. “Under United States v. Brignoni-Ponce,
95 S.Ct. 2574 (1975), and United States v. Cortez, 101 S.Ct. 690 (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.” United States v.
Villalobos, 161 F.3d 285, 288 (5th Cir. 1998). The factors that we
consider when determining whether reasonable suspicion existed include:
(1) proximity to the border; (2) known characteristics of the area in
6
which the vehicle is encountered; (3) usual traffic patterns on the
particular road; (4) the agent’s previous experience in detecting
illegal activity; (5) information about recent illegal trafficking in
aliens or narcotics in the area; (6) particular aspects or
characteristics of the vehicle; (7) behavior of the driver; and (8) the
number, appearance, and behavior of the passengers. See Orozco, 191
F.3d at 581 (citations omitted). Our analysis is not limited to any one
factor; rather, reasonable suspicion is a fact-intensive test in which
we look at all circumstances together to “weigh not [the] individual
layers but the ‘laminated’ total,” United States v. Edwards, 577 F.2d
883, 895 (5th Cir. 1978) (en banc), and “factors that ordinarily
constitute innocent behavior may provide a composite picture sufficient
to raise reasonable suspicion in the minds of experienced officers.”
United States v. Holloway, 962 F.2d 451, 459 (5th Cir. 1992) (citing
United States v. Sokolow, 109 S.Ct. 1581, 1586-87 (1989)) (footnote
omitted).
“The first factor, proximity to the border, is a ‘paramount factor’
in determining reasonable suspicion.” Orozco, 191 F.3d at 581 (citing
Villalobos, 161 F.3d at 288); see also United States v. Chavez-
Villareal, 3 F.3d 124, 127 (5th Cir. 1993) (considering physical
proximity to the border to be of “vital importance”). Although we do
not adhere to a bright line test with regard to this factor, “a car
traveling more than fifty (50) miles from the border is usually viewed
as being too far from the border to support an inference that it
7
originated its journey there.” United States v. Jones, 149 F.3d 364,
368 (5th Cir. 1998). In the present case, the record establishes that
Zertuche encountered Zapata-Ibarra’s vehicle approximately twenty-four
miles from the border–well under the fifty-mile benchmark. Moreover,
Zapata-Ibarra’s vehicle was heading north on RR 2523, away from the
border. Therefore, it was reasonable to consider it likely that Zapata-
Ibarra’s journey originated at the border and this supports the
objective reasonableness of Zertuche’s suspicion. See United States v.
Nichols, 142 F.3d 857, 867 (5th Cir.), cert. denied, 119 S.Ct. 621
(1998) (“Although a reasonable conclusion of proximity to the border
does not alone constitute reasonable suspicion for a Border Patrol stop
that is not at the border or its functional equivalent, this ‘vital
element’ contributes significantly to the reasonableness of the Border
Patrol agents’ suspicions.”).
The second Brignoni-Ponce factor, characteristics of the area in
which Zertuche encountered Zapata-Ibarra, also weighs in favor of the
existence of reasonable suspicion. “It is well established that a
road’s reputation as a smuggling route adds to the reasonableness of the
agents’ suspicion.” United States v. Aldaco, 168 F.3d 148, 151-52 (5th
Cir. 1999) (citations omitted). Zertuche testified that RR 2523 is
frequently used by smugglers who are attempting to circumvent the Border
Patrol checkpoint on Highway 277, particularly when Highway 277's
checkpoint is open, as it was on the night in question. Furthermore,
in Zertuche’s ten and one-half years as a Border Patrol agent in the Del
8
Rio area, he had been personally involved in over 200 stops on RR 2523,
producing approximately thirty apprehensions. In addition, Zertuche
testified that in the previous twelve months Border Patrol agents had
made fifty stops on RR 2523, resulting in between thirty and forty
apprehensions.1 Accordingly, RR 2523's reputation as a favored route
for smugglers further supports Zertuche’s reasonable suspicion. As he
testified, “whenever the immigration checkpoint is up on or the Border
Patrol Checkpoint is up on Highway 277 North, Highway Ranch Road 2523
is used by smugglers to transport their, the undocumented aliens.”
“It is evident that an officer’s experience is a contributing
factor in determining whether reasonable suspicion exists.” Aldaco, 168
F.3d at 151. Zertuche’s law enforcement background reflects that he was
knowledgeable and experienced. As detailed above, he had been stationed
in Del Rio as a Border Patrol agent for more than ten years and
regularly patrolled RR 2523. Accordingly, Zertuche’s significant
experience weighs in favor of finding reasonable suspicion existed. See
Villalobos, 161 F.3d at 289 (considering the agents’ experience
relevant, with one agent having over twelve years of experience and the
other fifteen months); Nichols, 142 F.3d at 871 (reasoning that the
1
Zapata-Ibarra intimates that Zertuche’s testimony on the number
of investigatory stops and resulting apprehensions is conflicting and
not worthy of credence. After reviewing the record, we are unable to
endorse that characterization. More importantly, however, the district
court found Zertuche’s testimony to be credible–a conclusion we will not
set aside on this record. See Casteneda, 951 F.2d at 48 (“We do not
casually disturb a district court’s credibility determinations.”).
9
agents’ previous experience with the particular road in question and the
surrounding area contributed to the reasonableness of their suspicions).
The behavior of the vehicle’s driver is another factor in our
review. See id. at 868. Zertuche testified that after making his U-
turn on RR 2523, he accelerated quickly to pull behind Zapata-Ibarra’s
van. Simultaneously, Zertuche turned on his high-beam lights so that
he could better see the van, its passengers, and its license plate
numbers. When Zertuche first encountered the van, Zapata-Ibarra was
driving at a normal speed for RR 2523, fifty to fifty-five miles per
hour. Zertuche testified that Zapata-Ibarra, in response to Zertuche’s
rapid acceleration and high-beam lights, decelerated considerably and
began “having a hard time keeping the vehicle within the lane itself.”
Zertuche interpreted this behavior as nervousness on the driver’s part
with the driver “possibly looking in the rear view mirror to see who’s
behind him.” After some prompting by the prosecution, Zertuche then
stated that Zapata-Ibarra’s driving would be consistent with a
“bailout.”2 Zertuche, however, did not testify that he feared a
2
“Q: And, when you pulled in behind the van did you notice how
the Defendant was driving the van?
A: When I initially started following him he slowed down
considerably. And, he was having a hard time keeping the vehicle within
the lane itself. This single northbound lane. And, from past
experience this indicates that the driver appears to be nervous,
possibly looking in the rear view mirror to see who’s behind him.
Q: Is that action of weaving in and out of the lane consistent with
any other things that you have encountered in the past?
A: Yes, it is. It is consistent when the driver appears nervous,
that he is doing something illegal.
10
“bailout” at the time he was following Zapata-Ibarra. In United States
v. Samaguey, 180 F.3d 195 (5th Cir. 1999), we afforded Samaguey’s
swerving on the road little or no weight when the record was “not clear
about whether Samaguey swerved when the patrol car approached him to
read his license plate, hardly suspicious, or if he swerved after the
patrol car dropped back, which could reinforce the officers’ suspicions
about a driver’s level of nervousness.” Id. at 199 (citing Jones, 149
F.3d at 370); see Jones, 149 F.3d at 370-71 (“[W]hen the officer’s
actions are such that any driver, whether innocent or guilty, would be
preoccupied with his presence, then any inference that might be drawn
from the driver’s behavior is destroyed.”); Chavez-Villereal, 3 F.3d at
127 (“We find nothing suspicious about a driver changing lanes and
slowing down when he realizes a vehicle is approaching from the rear;
that is a normal reaction if the driver wishes to let the tailing
vehicle pass.”); United States v. Diaz, 977 F.2d 163, 165 (5th Cir.
1992) (rejecting the government’s contention that the agents’ fear of
a “bailout” supported the existence of reasonable suspicion).
Zertuche’s testimony reveals RR 2523 to be a two-lane road with one lane
traveling north and the other heading south. Therefore, Zapata-Ibarra’s
Q: And, what is a ‘bailout’ if you can explain to The Court?
A: A bailout is when the vehicle pulls over to the side of the road
or appears to be sort of back and forth on the lane to try to look for
a place that is not fenced in or maybe doesn’t have any obstacles so he
can run on the side of the road, and so everybody can bail out and run.
Q: Was the manner in which that van was being driven consistent
with what happens before a bailout?
A: Yes, it was.”
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deceleration and swerving on a such a road at nighttime3, in response to
a rapidly accelerating vehicle with its high-beam lights on, weighs, at
best, only slightly in favor of the reasonableness of Zertuche’s
suspicions.
The number, appearance, and behavior of the passengers of the van
also factors into our analysis. At trial, Zertuche stated he could not
distinguish the nationality of the van’s driver or passengers, nor
whether they appeared unkempt or unwashed. These considerations
therefore do not support the existence of reasonable suspicion.
Zertuche did testify, however, that he “noticed several occupants in the
vehicle and some of the occupants were slouched down,” which in his
opinion indicated that they were trying to avoid detection. Later in
his testimony, Zertuche admitted that the passengers’ slouching could
have indicated resting or sleeping. We have noted that passengers
commonly slump in their seats to rest, particularly at nighttime hours.
See United States v. Garcia, 732 F.2d 1221, 1224 n.1 (5th Cir. 1984).
Therefore, “we have required a more affirmative indication of an attempt
to hide” for this factor to weigh in favor of the presence of reasonable
suspicion. Chavez-Villareal, 3 F.3d at 127 (footnote omitted). We also
consider relevant the number of passengers in the vehicle. Zertuche saw
“several passengers” in the van, and, although this number is not
unusual for a van, it is also consistent with alien smuggling. The
3
We take judicial notice of the fact that it would be well past
sundown at 9:30p.m. on February 16, 1998 in south Texas. See FED. R.
EVID. 201.
12
number of passengers and their slouching, even though ordinarily fitting
with innocent travel, “may provide a composite picture sufficient to
raise reasonable suspicion in the minds of experienced officers.”
Holloway, 962 F.2d at 459 (citation and footnote omitted). Accordingly,
we give some weight to this factor.
The final factor we consider involves the van’s very presence on
RR 2523. Zertuche, familiar with some of the local vehicles frequenting
RR 2532, did not recognize Zapata-Ibarra’s van. The check on the van’s
license plate confirmed Zapata-Ibarra’s observation as the van was
registered out of San Angelo. Zertuche testified in substance that
Highway 277 would be the most direct route between Del Rio and any
northern destination, including San Angelo. Aware that Highway 277's
Border Patrol checkpoint was open that evening, Zertuche surmised that
the van’s driver deliberately chose RR 2523 as his route in order to
circumvent the checkpoint, as had so many others.4 At trial, defense
counsel cross-examined Zertuche on the reasonableness of this
conclusion. At the end of testimony, the district court, having had the
aid of a local map, specifically mentioned Zertuche’s testimony that the
4
Although not figuring into our analysis, the testimony from one
of the van’s passengers, Francisco Pena-Cecilio (Pena-Cecilio), in fact
confirms Zertuche’s deduction. Pena-Cecilio testified that Zapata-
Ibarra, after picking up his passengers on the United States side of the
border, initially drove the van north on Highway 277 from Del Rio.
However, upon noticing that Highway 277's checkpoint was open, he turned
the van around and drove back to Del Rio in order to connect to RR 2523
and avoid Highway 277's checkpoint. Zapata-Ibarra’s actions thus
reflect the reasons for the Border Patrol’s regular monitoring of RR
2523.
13
San Angelo van “was not taking the most direct route to San Angelo” as
a basis supporting the legality of the stop. We afford due weight to
the inferences local judges and law enforcement officers draw from
historical facts and the events leading up to the stop. See Ornelas v.
United States, 116 S.Ct. 1657, 1663 (1996); Nichols, 142 F.3d at 867.
Considering Zertuche’s testimony as a whole and his and the district
court’s familiarity with the area, the court could properly conclude–and
there is nothing to the contrary in the record–that the segment of RR
2523 on which the stop was made was unlikely to be used at this time of
night in February by anyone travelling north to an other than local
destination unless it was for the so frequently availed of purpose of
avoiding the then open Highway 277 checkpoint. And, the presence of
several passengers (some so slouched down as to render detection less
likely) is consistent with an alien smuggler’s desire to avoid the
Highway 277 checkpoint in a way that a vehicle with only one or two
occupants would not be. The facts that the van was not recognized by
Zertuche and, more significantly, was registered out of San Angelo, all
point to an other than local destination, and nothing suggests
otherwise.5
Although the issue is a close one and its resolution ultimately
5
Other perhaps abstractly conceivable explanations (none suggested
by anything in the record) are similarly discounted. A causal site-
seeing ride along a quiet country road is rendered unlikely by the time
of night and year (and number of passengers) as is also a party of
hunters. And, the district court and Zertuche can doubtless be presumed
to know that there are no particular tourist attractions to which this
stretch of RR 2523 is a natural route from Del Rio.
14
depends on the unique blend of facts here, we conclude that the district
court correctly determined that, under the “laminated” totality of the
facts and circumstances, Zertuche had reasonable suspicion to stop
Zapata-Ibarra’s van.6 Not every Brignoni-Ponce factor need weigh in
favor of reasonable suspicion for it to be present, nor does the Fourth
Amendment require the law enforcement officer eliminate all reasonable
possibility of innocent travel before conducting an investigatory stop.
See United States v. Basey, 816 F.2d 980, 989 (5th Cir. 1987) (“The
‘reasonable suspicion’ standard does not require . . . that the
circumstances be such that there is no reasonable hypothesis of innocent
behavior.”).
Conclusion
For the reasons stated, the district court’s order denying Zapata-
Ibarra’s motion to suppress, and his conviction and sentence, are
AFFIRMED.
Judge Wiener dissents, reserving the right to file a dissenting
opinion at a later time.
6
On appeal, the government also argues that denial of the
suppression motion could be justified under the “good faith” exception
to the exclusionary rule of the Fourth Amendment. As we conclude that
Zertuche had reasonable suspicion to stop the van, we need not address
the possible application of the “good faith” exception. See, e.g.,
United States v. Ramirez-Lujan, 976 F.2d 930, 934 & n.4 (5th Cir. 1992),
cert. denied, 113 S.Ct. 1587 (1993); United States v. De Leon-Reyna, 930
F.2d 396, 399-402 (5th Cir. 1991) (en banc); United States v. Williams,
622 F.2d 830, 840, 846 (5th Cir. 1980) (en banc), cert. denied, 101
S.Ct. 946 (1981) (arresting officer’s good faith and reasonable but
erroneous construction of statute).
15