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
August 10, 2000
Before GARWOOD, WIENER, and DeMOSS, Circuit Judges.
WIENER, Circuit Judge, dissenting:
The majority opinion1 classifies this South Texas Fourth
Amendment vehicle stop case as a “close one” —— to which I would
add “at best.” The majority stacks one more opinion on the
burgeoning body of jurisprudence that —— at least figuratively ——
has engrafted onto the Fourth Amendment’s proscription of
unreasonable searches and seizures the caveat “except in proximity
to our border with Mexico.” I count the Fourth Amendment as hors
de combat of the government’s so-called War on Drugs and its
1
U.S. v. Zapata-Ibarra, 212 F.3d 877 (5th Cir. 2000).
efforts to interdict illegal immigration, which together have
produced a kind of public hysteria that has in turn impeded
rational judgment and logic. We of the federal judiciary, who have
already diluted the Fourth Amendment by sanctioning a growing
number of exceptions to the warrant requirement and by increasingly
substituting “reasonable suspicion” for “probable cause” in many
warrantless searches or seizures, have now placed the Fourth
Amendment’s protection of “the people” from unreasonable searches
and seizures into a state of suspended animation anywhere even
remotely close to the Mexican border. Thus I see this “close one”
as our court’s re-affirmation that, when it comes to intercepting
illegal drugs and aliens within 100 (or more!) miles of that
border, the ends will justify the means: A vehicle stop anywhere
within that zone will receive our hindsight benediction solely
because the stop’s search bore fruit.
Convinced that the fabric of our society suffers significantly
more harm by sacrificing the right of all the people —— including
those near the Mexican border —— to the constitutional protections
of the Fourth Amendment than it gains from the apprehension of a
few more illegal immigrants or narcotic traffickers and their
contraband, I respectfully dissent.
The espionage hysteria that followed Pearl Harbor proved
sufficiently contagious to infect even the Supreme Court —— indeed,
even its staunchest defender of individual liberties, Justice Hugo
Black —— producing the Court’s approbation of the government’s
2
shameful internment of thousands of Japanese Americans.2 To borrow
from Justice Scalia,3 I sense that history is likely to judge the
judiciary’s evisceration of the Fourth Amendment in the vicinity of
the Mexican border as yet another jurisprudential nadir, joining
Korematsu, Dred Scott,4 and even Plessy5 on the list of our most
shameful failures to discharge our duty of defending constitutional
civil liberties against the popular hue and cry that would have us
abridge them.
Were it not for the compulsion to lament the losses of
individual liberties that result from this emasculation of the
Fourth Amendment, I would not write separately: Dissenting solely
to express disagreement with my colleagues’ evaluation of the
instant facts and their legal effects would be unjustified. And I
certainly do not write in criticism of the DEA, the Customs
Service, or the Border Patrol in general or this case’s individual
agent in particular: Quite to the contrary, I am embarrassed that
the federal courts have forced the dedicated, at-risk officers of
these agencies to engage in the charade of “articulating facts”
2
Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193
(1944).
3
See Stenberg v. Carhart, 120 S. Ct. 2597, 2621 (2000) (where
Justice Scalia proclaims that he is “optimistic enough to believe
that, one day, Stenberg v. Carhart will be assigned its rightful
place in the history of this Court’s jurisprudence beside Korematsu
and Dred Scott”).
4
19 How. (60 U.S.) 393 (1856).
5
Plessy v. Ferguson, 163 U.S. 537 (1896).
3
just so that we can point to something as the underpinnings of our
retrospective findings of “reasonable suspicion” when we uphold
vehicle stops that otherwise offend the Fourth Amendment. It is
we, not law enforcement, who have constructed the straw man of
articulatable facts and we who then accept as justifiable suspicion
virtually anything and everything thus articulated:
The vehicle was suspiciously dirty and muddy,6
or the vehicle was suspiciously squeaky-clean;7
the driver was suspiciously dirty, shabbily
dressed and unkept,8 or the driver was too
clean;9 the vehicle was suspiciously traveling
fast,10 or was traveling suspiciously slow11 (or
even was traveling suspiciously at precisely
the legal speed limit); the [old car, new car,
big car, station wagon, camper, oilfield
service truck, SUV, van]12 is the kind of
6
See United States v. Carroll, 591 F.2d 1132, 1135 (5th Cir.
1979).
7
See United States v. Nichols, 142 F.3d 857, 866 (5th Cir.
1998).
8
See United States v. Salazar-Martinez, 710 F.2d 1087, 1088
(5th Cir. 1983).
9
See United States v. Indocencio, 40 F.3d 716, 723 (5th Cir.
1994).
10
See United States v. DeWitt, 569 F.2d 1338, 1339 (5th Cir.
1978) [Weak].
11
See United States v. Garcia, 732 F.2d 1221, 1225 (5th Cir.
1984); Nichols, 142 F.3d at 866.
12
See United States v. Brignoni-Ponce, 422 U.S. 873, 884-85,
95 S.Ct. 2574, 2582 (1974) (station wagon); United States v.
Morales, 191 F.3d 602, 604 (5th Cir. 1999) (pickup truck with
fiberglass cover); United States v. Gordon, 712 F.2d 110, 112-13
(5th Cir. 1983) (stake bed truck); Garcia, 732 F.2d 1221 at 1225
(camper); Salazar-Martinez, 710 F.2d at 1088 (luxury car);
Indocencio, 40 F.3d at 723 (oil field vehicle).
4
vehicle typically used for smuggling aliens or
drugs; the driver would not make eye contact
with the agent,13 or the driver made eye
contact too readily; the driver appeared
nervous14 (or the driver even appeared too
cool, calm, and collected); the time of day
[early morning, mid-morning, late afternoon,
early evening, late evening, middle of the
night] is when “they” tend to smuggle
contraband or aliens;15 the vehicle was riding
suspiciously low (overloaded),16 or
suspiciously high (equipped with heavy duty
shocks and springs);17 the passengers were
slumped suspiciously in their seats,
presumably to avoid detection,18 or the
passengers were sitting suspiciously ramrod-
erect;19 the vehicle suspiciously slowed when
being overtaken by the patrol car traveling at
a high rate of speed with its high-beam lights
on,20 or the vehicle suspiciously maintained
its same speed and direction despite being
overtaken by a patrol car traveling at a high
speed with its high-beam lights on;21 and on
13
See United States v. Orozco, 191 F.3d 578, 582 (5th Cir.
1999); Nichols, 142 F.3d at 866.
14
See United States v. Baynard, 553 F.2d 389, 392 (5th Cir.
1977).
15
See Morales, 191 F.3d at 866 (9:30-10:00 am); Garcia, 732
F.2d at 1225 (11:30 p.m.).
16
See United States v. Payne, 555 F.2d 475, 477 (5th Cir.
1977); Garcia, 732 F.2d at 1225.
17
See United States v. Chavez-Chavez, 205 F.3d 145, 149 (5th
Cir. 2000).
18
See Orozco, 191 F.3d at 580.
19
See Chavez-Chavez, 205 F.3d at 149 (giving factor only
slight weight).
20
See United States v. Samaguey, 180 F.3d 195, 198 (5th Cir.
1999); Morales, 191 F.3d at 604.
21
Testimony of Agent Zertuchi in the instant case.
5
and on ad nauseam.
We of the judiciary should be the last to cast verbal stones
at agents who proffer such facts in efforts to validate their
roving patrol stops. For it is we who have taught these same
agents the bridge-table conventions to incant when challenged.
I find the instant facts disturbingly illustrative of how far
we have gone. I begin by emphasizing what is not part of the
calculus in this case: (1) The record does not contain testimony
that the day, date, or time of this stop —— approximately 9:30 p.m.
on a Monday night in mid-February —— was suspicious; (2) the
physical condition of the van and its rate of speed were not
remarkable in any way; (3) there had not been recent reports of
smuggling activity on RR 2523; and (4) when the south-bound patrol
car met and passed the van from the opposite direction while both
vehicles were traveling at highway speeds, the agent was not able
to determine either the ethnicity or the number of the van’s
occupants —— he testified, in fact, that he was unable to make such
determinations under those conditions.
Then there are the five articulated “facts” that were credited
by the district court in holding that the agent had “reasonable
suspicion” to stop the van: (1) The agent’s experience (ten
years); (2) the van’s direction of northerly travel some 24 miles
from the border; (3) the van’s registration (San Angelo, Texas)
coupled with its traveling on a route other than the most direct
path back to its city of registration; (4) the presence of five
6
persons in the van; and (5) the “slumping” of the passengers. In
contrast to the district court, the panel majority in its de novo
review reiterates the eight Orozco factors,22 but credits only (1)
the van’s 24-mile proximity to the border, (2) characteristics of
the road (ranch road) and the direction being traveled by the van
(north), (3) the road’s usual traffic patterns (lightly traveled
but used from time to time by smugglers), (4) the agent’s
experience (ten years), and (5) the slumping of some of the
passengers (expressly credited by the panel majority only to the
slightest degree). Differing with the district court, the panel
majority did not find any significance in (1) the number of
passengers (even a mini-van seats seven and a standard van seats
nine or more, but only five persons occupied the blue van in
question), or (2) the passengers’ personal appearances (which the
agent could not discern before making the stop). More
significantly, the panel majority found no support in this case
from the Orozco factors of (1) recent illegal trafficking in the
vicinity (the uncontradicted evidence was that none had been
reported), (2) characteristics of the vehicle (none were suspicious
—— unless we count the agent’s failure personally to recognize the
van as belonging to one of the local ranchers), (3) the driver’s
handling of the van (which the panel majority found to be normal,
natural, and unsuspicious under the circumstances), or (4)
22
United States v. Orozco, 191 F.3d 576, 581 (5th Cir. 1999).
7
passengers slumping in their seats (recognized by the majority as
common postures on rural road trips and thus given only the
slightest credit).
I concede that, like it or not, we are now precedent-bound to
credit proximity to the border because our jurisprudence is
constant on that being a “paramount factor” (which in turn, I
submit, makes it the prime source of the lamentable “border
exception” to the Fourth Amendment). Precedent also requires us to
take into account the road’s general reputation among knowledgeable
agents for being a smugglers’ route, used more frequently when the
checkpoint on the main highway is open. I hasten to add, however,
that in so doing we commit error frequently —— as does the panel
majority here —— by confusing this justification for the presence
of the roving patrol on that road with justification for the
agent’s making this particular stop of this particular vehicle:
The facts that (a) the checkpoint was open on Route 277, and (b) RR
2523 is known by experienced agents to be a route used to bypass
that checkpoint, do justify the presence of the roving patrol on
this ranch road on the day in question; however, those facts
contribute nothing to the reasonableness of the agent’s assertion
of suspicion of this particular van. Alone, the van’s mere
presence on RR 2523 does not create or contribute to reasonable
suspicion for stopping it.
All of this leads me to ask rhetorically why we do not just
“fess up” and declare in full candor that, irrespective of the
8
Fourth Amendment, we empower all experienced law enforcement
agents, while on roving patrol within X miles of the border, to
stop any unrecognized vehicle traveling north on secondary roads
like RR 2523, especially when the checkpoint on the area’s
principal highway is open? I submit that this is precisely what we
are telling the field agents, albeit indirectly through the thinly
disguised shibboleth of “articularable facts,” and that we add to
this Wonderland analog our retrospective blessing as reasonable of
any stop that has led to the discovery of drugs or illegal aliens
in the detained vehicle. Because, in actuality, a successful
search is all that we now require to conclude in hindsight that the
stop was legally reasonable, our trial courts in south and west
Texas will likely never again encounter a legally “unreasonable”
vehicle stop at a suppression hearing: Stops that produce no
contraband never make it to a suppression hearing, so only
successful stops are heard —— and under the current state of our
jurisprudence, any successful stop is a constitutional stop.
In response to the prosecutor’s efforts to strengthen the
instant case, the agent also articulated statistics, specifically
a record of some 200 stops on RR 2523 that had produced 30
apprehensions. Contrary to the government’s contention of support,
these statistics prove the unreasonableness of this whole
Albigensian23 approach: Bragging about netting 30 apprehensions out
23
History records that when, during the campaign to eliminate
the anti-Rome heresy centered in the Albi region of southwestern
9
of 200 stops is analogous to a major league baseball player’s
bragging about a .150 batting average —— hardly an all-star
performance. More significant is what the agent and the panel
majority leave unsaid, the obverse of their deduction: These
statistics really prove that 85% of the stops were mistakes! In
other words, 85% of the time law-abiding citizens were hassled ——
inconvenienced, aggravated, frightened, and conceivably delayed for
work or school or church or even made to miss airline flights,
doctors’ appointments, important business meetings, social or
family functions, or the like —— for doing nothing more suspicious
than traveling —— legally, legitimately, and entirely within their
constitutional rights —— on a public road that happens to be used
occasionally for illicit purposes.
Other than the agent’s years of service, the northbound van’s
proximity to the border, and the road’s general (but not recently
reported) history of being used for illicit traffic, this leaves
only the vehicle’s licensure, i.e., being “registered out of San
Angelo,” as factual support for the panel majority’s conclusion
that the stop was reasonable. I find the crediting of this
“articularable fact” most disturbing: What is it in law or in
logic that says a Texas-licensed vehicle, traveling in Texas within
100 miles of Mexico, is per se suspicious any time it is not headed
France, the leader of the forces loyal to the Pope ordered his
troops to slay the heretics, some soldiers inquired how they could
distinguish the heretics from the faithful, whereupon the
Cistercian abbot commanded, “Kill them all; God will know His own.”
10
directly to or from its city of registration? In answering my own
rhetorical question with a resounding “nothing!”, I find it a
quintessential non sequitur to credit, as an element of reasonable
suspicion (here, likely the deciding element), the fact that an
otherwise unremarkable Texas-licensed vehicle, which is traveling
within Texas and is headed away from the border but in some
direction —— any direction —— other than the most direct route
home. For, in the absence of martial law, what logic says that in
this democratic republic every motor vehicle must be headed
directly to or from its city of registration if it is to avoid
being deemed suspicious and thus subject to being pulled over
summarily by law enforcement personnel, with all the invasiveness
that attends such a stop?
I find inescapable the conclusion that the agent in this case
was adjudged to have acted reasonably for Fourth Amendment purposes
only because we of the federal judiciary have accepted the
proposition that the mission of interdicting illegal aliens (or
drugs) in proximity to the Mexican border justifies riding
roughshod over the Fourth Amendment’s guarantees. Signing on to
this inverted priority results in our permitting —— nay,
encouraging —— agents on roving patrol to conduct warrantless
searches, devoid of reasonable suspicion, much less probable cause.
How is this practice distinguishable from the former practice of
Southern peace officers who randomly stopped black pedestrians to
inquire, “Hey, boy, what are you doin’ in this neighborhood?” All
11
that we now require is that the agent play our parlor game and
“articulate” to us virtually any set of facts as triggering
suspicion in his mind. That the facts thus articulated might be
(and frequently are) wholly irrelevant, immaterial, and incompetent
to support reasonable suspicion is no longer important to the
courts or the law enforcement agencies in our self-orchestrated
danse macabre.
In summary, I take but slight issue with my colleagues of the
panel majority or with the agent who stopped Zapata-Ibarra.
Rather, the bone I pick is with the judiciary as a whole for the
part we have played and continue to play in rolling back the Fourth
Amendment to points many miles this side of our border with Mexico.
Shame on us. At least the war that prompted the Supreme Court
that to condone the internment of Japanese Americans24 was a full-
fledged, Congressionally-declared, “shooting” war. These are the
reasons why I respectfully dissent.
24
See, e.g., Korematsu v. United States, 323 U.S. 214, 65
S.Ct. 193 (1944).
12