UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-50443
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGG HERRERA, JR.,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(P-98-CR-281-1)
_________________________________________________________________
July 13, 2000
Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Convicted for possession with intent to distribute marijuana,
Gregg Herrera, Jr., challenges the denial of his motion to
suppress, contesting the validity of the investigatory stop by a
Border Patrol Agent that led to the discovery of the marijuana. We
AFFIRM.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I.
The sole witness at the suppression hearing was Border Patrol
Agent Myers. He had been stationed in Presidio, Texas, for two and
one-half years, had participated in hundreds of cases involving
apprehension of illegal aliens, and had been involved in over ten
narcotics smuggling cases. Upon arriving for duty at 6:00 p.m. on
25 November 1998 (Thanksgiving), his supervisor instructed him to
patrol Highway 67 north of Presidio, and to be on the lookout for
four suspected illegal aliens last seen traveling on foot
approximately one or two miles north of Presidio.
Presidio, with a population of about 3,500, is located on the
border with Mexico. Ojinaga, Presidio’s sister city across the
border, is known as a “staging” area for narcotics and alien
smuggling from Mexico into the United States. Highway 67 is the
only road north out of Presidio.
At approximately 8:00 p.m., two hours after going on duty, and
while patrolling Highway 67 five or six miles north of Presidio,
the Agent observed an older model four-door sedan northbound on
Highway 67. The sedan appeared to be heavily loaded, because it
was riding low in the rear.
The Agent began following the sedan, and confirmed his initial
observation that the rear of the vehicle was riding low. He also
observed that the sedan had dark tinted windows and a muddy film on
the back window, which prevented him from seeing the vehicle’s
interior.
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The Agent ran a registration check on the sedan and determined
that it was registered to an individual from Natalia, Texas.
Because he did not know where Natalia is located in Texas, and the
sedan did not look familiar to him, the Agent believed the vehicle
was not from the local area.
After following and observing the sedan for about 11 miles,
the Agent suspected that its driver might have picked up the four
suspected illegal aliens, and that this was the reason the vehicle
was riding low in the rear. Because he could not see into the
vehicle to determine the number of occupants, he decided, about 17
miles north of Presidio, to stop — and did stop — the vehicle to
conduct an immigration inspection.
Herrera, the driver and sole occupant of the sedan, answered
questions about his citizenship. He then consented to a search of
the vehicle, during which the Agent discovered marijuana behind the
back seat.
In denying Herrera’s suppression motion, the district court
held: the Agent articulated specific facts that gave rise to his
reasonable suspicion that Herrera might be involved in illegal
activity; Herrera validly consented to the search of the vehicle;
and, when the Agent smelled marijuana in the passenger compartment,
he had probable cause to search the vehicle.
II.
Herrera challenges only the validity of the initial stop.
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A.
The Government contends we should review only for plain error,
because Herrera did not specifically contend in the district court
that the stop was unconstitutional. See United States v. Moser,
123 F.3d 813, 823-24 (5th Cir.) (although defendant preserved one
Fourth Amendment ground, his failure to raise “knock and announce”
issue resulted in plain-error review), cert. denied, 522 U.S. 1020,
1035 (1997), 522 U.S. 1092 (1998).
The purpose of requiring that an issue be raised in the
district court is to allow presentation of evidence and argument,
and to provide the district court an opportunity to rule on the
issue. See United States v. Burton, 126 F.3d 666, 671 (5th Cir.
1997). Although Herrera did not use the terms “reasonable
suspicion” or “investigatory stop” in his suppression motion, the
Government apparently understood the motion to raise that issue,
asserting in its response: “Based on a totality of the
circumstances Agent Myers had reasonable suspicion to stop the
vehicle”.
At the suppression hearing, the parties elicited testimony
from the Agent on the bases for the stop. And, the district
court’s ruling that the Agent articulated specific facts supporting
a reasonable suspicion that Herrera was engaged in illegal activity
demonstrates its understanding that the constitutionality of the
stop was at issue.
4
Under these circumstances, plain error review is not
applicable. Instead, we review for clear error the district
court’s factual findings, and review de novo its legal conclusions,
including the determination that reasonable suspicion supported the
investigatory stop. E.g., United States v. Zapata-Ibarra, 212 F.3d
877, ___, 2000 WL 650017, at *2 (5th Cir. 2000).
B.
“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) (citing United States v. Cortez, 449 U.S. 411 (1981);
and United States v. Brignoni-Ponce, 422 U.S. 873 (1975)).
The following, well known factors are relevant in determining
whether reasonable suspicion existed:
(1) proximity to the border; (2) known
characteristics of the area in 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.
Zapata-Ibarra, 212 F.3d at ___, 2000 WL 650017, at *2.
Our analysis is not limited to any one factor;
rather, reasonable suspicion is a fact-
5
intensive test in which we look at all
circumstances together to weigh not the
individual layers but the laminated total, and
factors that ordinarily constitute innocent
behavior may provide a composite picture
sufficient to raise reasonable suspicion in
the minds of experienced officers.
Id. (brackets, internal quotation marks, and citations omitted).
See also United States v. Gonzalez, 190 F.3d 668, 671 (5th Cir.
1999) (“The validity of a stop depends upon the totality of the
circumstances known to the agents making the stop.”); Villalobos,
161 F.3d at 288 (“each case must be examined from the totality of
the circumstances known to the agent, and the agent’s experience in
evaluating such circumstances” (internal quotation marks and
citation omitted)).
Herrera contends that, because the Agent did not claim
reliance on a belief that Herrera’s vehicle had recently crossed
the border, the district court erred by applying a “presumption”
that, because the Agent first observed the vehicle within 50 miles
of the border, the Agent had reason to believe the vehicle had come
from the border. He contends further that, as a result of
improperly applying the border-origin presumption, the district
court accorded improper weight to the other factors offered by the
Agent to support the reasonableness of the stop.
Irrespective of the validity of Herrera’s contentions, “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”.
6
Gonzalez, 190 F.3d at 671 (internal quotation marks and citations
omitted); see also United States v. Moreno-Chaparro, 180 F.3d 629,
632 (5th Cir. 1999) (“whether the agent had reason to believe that
the vehicle in question had come from the border ... alone is not
controlling and other factors must be given appropriate
consideration in the determination whether reasonable suspicion
existed”).
Considering the totality of circumstances, the Agent
articulated specific facts to support a reasonable suspicion
justifying the investigatory stop. The Agent, who had two and one-
half years’ experience in the area, first observed Herrera
traveling in a vehicle on Highway 67, about five miles north of the
border town of Presidio, a route well-known for illegal alien and
narcotics trafficking. The Agent had received instructions to be
on the lookout for four suspected illegal aliens who were last seen
walking one or two miles north of Presidio. His suspicion that
those individuals might be in Herrera’s vehicle was based on the
following: he thought it possible that the suspected aliens might
have been hitchhiking along Highway 67 in the area where they were
last seen, and perhaps had obtained a ride; in his experience, that
type of four-door sedan was a common alien smuggling vehicle; and
it appeared to be heavily loaded, because it was riding low in the
rear. He was unable to determine the number of people in the
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vehicle without stopping it, because of the window tinting, muddy
film on the windows, and lack of light at the time.
These specific articulable facts, and the rational inferences
drawn from them, reasonably warranted the Agent’s suspicion that
the vehicle was involved in illegal activity. Accordingly, the
Agent’s decision to stop the vehicle to ascertain the number of
people in it, and their citizenship, did not violate the Fourth
Amendment.
III.
For the foregoing reasons, the denial of Herrera’s motion to
suppress is
AFFIRMED.
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