United States Court of Appeals
Fifth Circuit
F I L E D
April 16, 2003
UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
For the Fifth Circuit Clerk
No. 02-40096
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JUAN ARMANDO ARJONA-MARTINEZ,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas, McAllen Division
M-01-CR-587
Before KING, Chief Judge, DAVIS, Circuit Judge, and VANCE*,
District Judge.
PER CURIAM:**
Defendant-Appellant Juan Armando Arjona-Martinez appeals his
conditional plea of guilty on the grounds that the district court
erred in denying his motion to suppress evidence. Arjona-
Martinez contends that the government obtained evidence in an
unconstitutional stop by United States Border Patrol agents. The
district court upheld the constitutionality of the stop. We
affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case, the facts of which are largely undisputed, arises
out of a Border Patrol stop on Highway 83, east of Roma, Texas.
Roma is located less than one-quarter of a mile from Mexico, and
the city contains a bridge connecting Mexico and the United
States. The stretch of Highway 83 where the stop occurred is no
more than eight miles from the United States-Mexico border. It
is known to be an alien and narcotics trafficking route.
On July 29, 2001, Special Agent Rolando Luna of the United
States Customs Service, McAllen, Texas, received a telephone call
from a person named "Chuy" with information regarding a drug
trafficking event. Luna and another customs agent, Gary Shanley,
had never met the tipster named "Chuy." They knew, however, that
Chuy had provided Luna with reliable information about drug
trafficking at least three times in the past. Each of the past
tips led to either the seizure of narcotics or an arrest. Chuy
had always called Luna and not any other agent because of their
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"special relationship." According to Shanley, tipsters typically
communicate with only one agent.
Chuy informed Luna that a gold Chevy Suburban with Texas
license plates numbered 1PB-K96, carrying a load of drugs, would
leave the area of the L&V Hotel and the R&B Restaurant in Roma,
Texas and head east to McAllen, Texas on Highway 83. Luna
immediately relayed this information to Border Patrol. Border
Patrol then relayed the information to its field agents. Border
Patrol agents located the described vehicle in the vicinity of
the L&V Hotel. As predicted, the vehicle proceeded to head east
on Highway 83. Senior Border Patrol Agent Greg Reyes radioed
Border Patrol agents that he had pulled up behind a gold Suburban
with Texas license plates 1PB-K96. Border Patrol Agent Eulogio
Medrano, who had been traveling west on Highway 83 towards Roma,
turned around and joined Reyes in pursuing the Suburban. At the
time of the stop, Medrano had worked for the Border Patrol for 15
months and in that time had made "many" narcotics apprehensions
in and around Roma.
After running some record checks on the Suburban, Reyes
pulled it over. Arjona-Martinez consented to a search of his
car. While Medrano stayed in his vehicle to provide back-up,
Reyes and Arjona-Martinez walked to the back of appellant’s car
and opened a rear door. There were bundles containing 130 pounds
of marijuana in the rear of the car that were plainly visible
from the outside through the passenger windows. Sometime
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thereafter, Arjona-Martinez confessed to the crime.
The United States charged Arjona-Martinez in a one-count
indictment with possessing marijuana with the intent to
distribute it, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C). Arjona-Martinez filed a motion to suppress evidence,
which the district court denied after holding an evidentiary
hearing. The district court concluded that the agents made the
stop with reasonable suspicion. Arjona-Martinez then entered a
conditional plea of guilty to the indictment. He received a
sentence of 18 months with a three-year term of supervised
release and a $100 special assessment. Arjona-Martinez timely
filed a notice of appeal. Arjona-Martinez argues that the
district court erred in denying his motion to suppress because
the tip that led to his arrest was unreliable and did not give
rise to reasonable suspicion under the Fourth Amendment.
II. STANDARD OF REVIEW
We review the denial of a motion to suppress under two
standards. See United States v. Rodriguez-Rivas, 151 F.3d 377,
379 (5th Cir. 1998). Questions of law, such as whether
reasonable suspicion exists to stop a vehicle, are reviewed de
novo. See United States v. Chavez, 281 F.3d 479, 483 (5th Cir.
2002). Factual findings are reviewed for clear error. See id.
Further, evidence presented at a suppression hearing is viewed in
the light most favorable to the prevailing party. See id.
4
(citing United States v. Jordan, 232 F.3d 447, 448 (5th Cir.
2000)). In this case, the prevailing party is the United States.
III. DISCUSSION
A law enforcement officer may, consistent with the Fourth
Amendment, temporarily stop a person if the officer has a
reasonable, articulable suspicion that the person has committed
or is about to commit a crime. See Chavez, 281 F.3d at 485
(citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d.
889 (1968)). Border Patrol agents on roving patrol may stop a
vehicle only if "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." United
States v. Gonzalez, 190 F.3d 668, 671 (5th Cir. 1999); see also
United States v. Brignoni-Ponce, 422 U.S. 873, 884-86, 95 S.Ct.
2574, 2582, 45 L.Ed.2d. 607 (1975); United States v. Villalobos,
161 F.3d 285, 288 (5th Cir. 1998). Reasonable suspicion requires
considerably less than proof of wrongdoing by a preponderance of
the evidence, but more than merely an unparticularized hunch.
Gonzalez, 190 F.3d at 671. The validity of the stop turns on the
totality of the circumstances known to the agents making the
stop. Id. Relying on Brignoni-Ponce, we have identified the
factors that may be considered as including (1) the
characteristics of the area in which the vehicle is encountered;
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(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. Brignoni-Ponce, 422 U.S. at 884-
86, 95 S.Ct. at 2582; Gonzalez, 190 F.3d at 671; Villalobos, 161
F.3d at 288. We judge the facts against an objective standard in
that we must determine whether the facts available to the
officers at the moment of the stop warrant a person of reasonable
caution to believe that the action taken was appropriate. United
States v. Lopez-Gonzalez, 916 F.2d 1011, 1013 (5th Cir.
1990)(citing United States v. Gomez, 776 F.2d 542, 546 (5th Cir.
1985)). At bottom, whether the officers had reasonable suspicion
to stop appellant's vehicle turns on the quality and the quantity
of the information that they possessed. Alabama v. White, 496
U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d. 301 (1990).
Several Brignoni-Ponce factors support the validity of the
stop of appellant's vehicle. First, the area in which the
vehicle was encountered – Highway 83 east of Roma, Texas – is
known to be a route frequented by alien and narcotics
traffickers. Second, appellant's car was in close proximity to
the United States-Mexico border inasmuch as it was fewer than
eight miles from the border. Cf. United States v. Inocencio, 40
F.3d 716, 722 n.7 (5th Cir. 1994)(vehicles traveling more than 50
6
miles from the border are usually a "substantial distance" from
the border). Third, at least one of the Border Patrol agents on
the scene had stopped narcotics traffickers in that area before.
Medrano had made "many" narcotics apprehensions in the Roma area
in the 15 months preceding this stop.
Of course, Reyes and Medrano did not stop appellant's
vehicle based on these factors alone – the agents also acted
because of Chuy's tip. In some circumstances, even an anonymous
tip, alone, may provide the reasonable suspicion necessary to
justify an investigatory stop. White, 496 U.S. at 327-29, 110
S.Ct. at 2415. Whether a particular tip provides an adequate
basis for a stop depends on "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." Gonzalez, 190 F.3d at 672. Consideration
of each of these factors supports the Border Patrol agents'
decision to stop appellant's vehicle.
First, the tip that set in motion the stop of appellant's
vehicle did not come from an anonymous or unreliable source.
Chuy had proven himself to be a credible and reliable tipster.
He had provided tips to Luna several times in the past, and each
of these tips led to either a narcotics seizure or an arrest.
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Second, Chuy's tip contained specific information. Chuy
identified the make, model, color and license plate of
appellant's vehicle. He identified its current location and,
most importantly, he predicted the direction in which the vehicle
would travel in the future. Chuy's tip therefore "contained a
range of details relating not just to easily obtained facts and
conditions existing at the time of the tip, but to future actions
of third parties ordinarily not easily predicted." White, 496
U.S. at 332, 110 S.Ct. at 2417. Third, the nature of the tip
permitted Border Patrol agents in the field to corroborate its
content. Border Patrol agents located the vehicle at the R&B
Restaurant in Roma, and Reyes and Medrano ultimately stopped the
vehicle when, as predicted, it headed east on Highway 83.
Fourth, and finally, the information Chuy provided concerned
ongoing events – it was anything but stale.
A long line of precedent indicates that the nature of Chuy's
tip, as well as the totality of the circumstances surrounding the
stop of appellant's vehicle, supports a finding that reasonable
suspicion exists. In Gonzalez, for example, Border Patrol agents
in a notorious smuggling area 62 miles from the border were on
the lookout for a Honda Accord with an identified Illinois
license plate and an identified driver suspected of smuggling
drugs from Mexico. Gonzalez, 190 F.3d at 670. The agents’
information had been provided by a confidential informant about
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two months earlier. Id. The agents saw a car driving on a
highway in the early morning that matched this description,
except that one digit in the license plate number was incorrect.
The agents followed the vehicle and confirmed that it was
registered to the named suspect. Id. at 671. The agents then
stopped the car, whose driver turned out not to be the named
suspect, and discovered that the driver’s license had been
suspended. Id. After receiving the driver’s consent to search,
the agents found drugs in the car. Id. The Gonzalez court found
that the tip was not anonymous because the informant had a proven
track record of providing reliable information to these agents in
the past. Id. at 672-73 (citing White, 496 U.S. at 327-29, 110
S.Ct. at 2415). Further, the court found that the agents in the
field corroborated the tipster’s predictions before stopping the
vehicle because they confirmed that the vehicle was registered to
the named suspect. Id. Lastly, the court found that reasonable
suspicion was enhanced by the time of day and the notoriety of
the area, the nearly exact match between the defendant’s car and
the tipster’s information, and the agents’ experience with
traffic in that area. Id. If anything, the facts supporting the
stop of appellant's vehicle are stronger than those that
supported the stop in Gonzalez. Most importantly, Chuy predicted
the exact highway and direction in which the trafficker would be
traveling. In addition, (1) Chuy identified each digit of the
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trafficker's license plate correctly (as opposed to missing one
digit); (2) the trafficker was traveling fewer than eight miles
from the border (as opposed to 62 miles); and (3) the agents
acted on a tip that was a few hours old (as opposed to two months
old). Gonzalez therefore stands as strong precedent for
concluding that the stop of appellant's vehicle was supported by
reasonable suspicion. See also Villalobos, 161 F.3d at 292
(upholding constitutionality of Border Patrol stop based in part
on anonymous informant's tip); Lopez-Gonzalez, 916 F.2d at 1014-
16 (upholding constitutionality of Border Patrol stop based in
part on informant's tip).
Appellant contends that the tipster in this case was either
anonymous or unreliable. This contention is based on appellant's
suggestion that it is possible that the individual that provided
tips to Luna under the name "Chuy" in the past was not the
individual who provided the July 29, 2001 tip under the same
name. We find this argument unavailing. Luna had successfully
relied on tips from "Chuy" in the past and had good reason to
believe – and did believe – that the July 29, 2001 tip from Chuy
would also be reliable. The reliability of the tip was confirmed
when agents in the field located the vehicle that Chuy had
identified, and then observed the vehicle travel in the direction
that Chuy had predicted it would travel.
Appellant's reliance on Florida v. J.L., 529 U.S. 266, 120
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S.Ct. 1375, 146 L.Ed.2d 254 (2000), to establish that Chuy's tip
was not reliable is similarly unpersuasive. In J.L., the Supreme
Court held that an anonymous tip informing the police of a
subject’s readily observable location and appearance, but lacking
any predictive information or other "sufficient indicia of
reliability," does not give rise to reasonable suspicion to
justify a Terry stop. In J.L., the police received a tip from an
unknown and unnamed informant that a young black male wearing a
plaid shirt was standing at a particular bus stop and was
carrying a gun. See J.L., 529 U.S. at 268, 120 S.Ct. at 1377.
Sometime after the police received the tip, they proceeded to the
bus stop and saw three black males standing there, one of whom
wore a plaid shirt. See id. The officers approached the man in
the plaid shirt, frisked him and discovered a gun. See id.
The Supreme Court's decision in J.L. is distinguishable for
two reasons. First, the tip in J.L. came from an anonymous
source with no history of providing reliable tips. The J.L.
court noted that the veracity of such tips is more difficult to
gauge than those of informants and tipsters, like Chuy, who are
known to have provided reliable tips in the past. Id. at 270,
120 S.Ct. at 1378. Second, the tip in J.L. did not correctly
forecast "not easily predicted movements." Id. at 271, 120 S.Ct.
at 1379. This prompted the Supreme Court to conclude that "the
anonymous call concerning J.L. provided no predictive information
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and therefore left the police without means to test the
informant's knowledge or credibility." Id. Here, the Border
Patrol agents had ample means to test the tipster's knowledge and
credibility. Chuy had provided reliable tips in the past and, in
this instance, informed Luna of the vehicle's color, make, model,
and plates, and its departure and destination plans. The agents
were able to confirm and track the car’s progress almost
immediately after receiving the tip.
This tip falls squarely within the ambit of situations in
which a "tip, as corroborated, exhibited sufficient indicia of
reliability to justify the investigatory stop." White, 496 U.S.
at 332, 110 S.Ct. at 2417. But even if we are to assume that the
tip alone was too unreliable to justify a stop, the tip
contributes, along with the other Brignoni-Ponce factors, to the
agents’ particularized suspicion. See Villalobos, 161 F.3d at
291. The Border Patrol agents who stopped appellant's vehicle,
unlike the officers in J.L., were investigating vehicles on
highways in proximity to the United States-Mexico border that are
well-known conduits for aliens and narcotics. The agents had
experience in conducting such investigations. Accordingly, we
conclude that the agents had reasonable suspicion to make an
investigatory stop of appellant's vehicle and that doing so did
not violate appellant's Fourth Amendment rights. In so
concluding, we reaffirm the notion that "the Fourth Amendment
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seeks to prevent arbitrary police action, not to require absolute
certainty before law enforcement officers may investigate."
Villalobos, 161 F.3d at 292.
IV. CONCLUSION
The district court's denial of appellant's motion to
suppress is in all respects affirmed.
AFFIRMED.
*District Judge of the Eastern District of Louisiana, sitting by designation.
**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.
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United States v. Arjona-Martinez
Combined Opinion