Case: 14-51299 Document: 00513326314 Page: 1 Date Filed: 12/31/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-51299 FILED
Summary Calendar December 31, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
SAMMY SALAZAR, also known as Samuel Salazar, also known as Sammuel
Salazar,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:13-CR-1359
Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Sammy Salazar was convicted by a jury of conspiracy to transport illegal
aliens and conspiracy to harbor them, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii), (a)(1)(A)(v)(I), (a)(1)(B)(i) & (a)(1)(B)(ii). In challenging the
district court’s denying, after a hearing, his motion to suppress evidence
obtained in the traffic stop that led to his arrest, Salazar asserts Border Patrol
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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No. 14-51299
Agents lacked reasonable suspicion, based on the factors set forth in United
States v. Brignoni-Ponce, 422 U.S. 873, 884–86 (1975), to stop the Lexus
automobile in which he was a passenger.
For considering a challenge to the denial of a motion to suppress, factual
findings are reviewed for clear error; legal conclusions, de novo. United States
v. Rangel-Portillo, 586 F.3d 376, 379 (5th Cir. 2009). The constitutionality of
the stop, including whether there was reasonable suspicion, is also reviewed
de novo. United States v. Neufeld-Neufeld, 338 F.3d 374, 378 (5th Cir. 2003).
Moreover, suppression-hearing testimony is viewed in the light most favorable
to the prevailing party. See United States v. Garcia, 604 F.3d 186, 189–90 (5th
Cir. 2010).
Reasonable suspicion requires law enforcement on roving patrol to be
“aware of specific articulable facts, together with rational inferences from those
facts, that reasonably warrant suspicion that the vehicle[] contain[s] aliens
who may be illegally in the country”. Brignoni-Ponce, 422 U.S. at 884. To
determine whether reasonable suspicion existed, we examine the totality of the
circumstances, weighing the factors set forth in Brignoni-Ponce. United States
v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). Those factors include: (1)
proximity to the border; (2) characteristics of the area in which the Agents
encounter the vehicle; (3) usual patterns of traffic in that area; (4) Agents’
previous experience with illegal activity; (5) any information about recent
border crossings and trafficking in the area; (6) appearance and characteristics
of the vehicle stopped; (7) behavior of the driver; and (8) the number,
appearance, and behavior of the vehicle’s passengers. Brignoni-Ponce, 422
U.S. at 884–85. Viewing the facts in the light of the Brignoni-Ponce factors,
and for the following reasons, reasonable suspicion existed.
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“The first factor, [the vehicle’s] proximity to the border, is a paramount
factor in determining reasonable suspicion.” United States v. Zapata-Ibarra,
212 F.3d 877, 881 (5th Cir. 2000) (internal quotation marks omitted). The
tactical checkpoint through which Salazar’s vehicle passed was approximately
20 miles from the border, and the vehicle was stopped approximately six miles
beyond the checkpoint. Stopping the vehicle as it moved away from the border,
within 50 miles of it, creates a “stand-alone inference that the vehicle’s journey
originated at the border”. United States v. Soto, 649 F.3d 406, 409 (5th Cir.
2011).
Additionally, the Border Patrol Agents were aware that Highway 131
was a known smuggling route that circumvented permanent immigration
checkpoints. Although that alone is insufficient to justify a stop, see United
States v. Diaz, 977 F.2d 163, 165 (5th Cir. 1992), the “road’s reputation as a
smuggling route adds to the reasonableness of the agents’ suspicion”.
Jacquinot, 258 F.3d at 429 (emphasis in original). Moreover, the Agents knew
Highway 131 is not a common route from Eagle Pass, Texas, where the
vehicle’s journey purportedly began, to its supposed destination, Uvalde,
Texas. According to the Agents, that route takes twice as long as other routes
to travel from Eagle Pass to Uvalde.
Furthermore, the two Agents had a combined 15 years of experience as
Border Patrol Agents, ten of which were in the area where the stop occurred.
Both were familiar with the area’s traffic, routes to travel from town to town,
and checkpoint locations, which contributed to their reasonable suspicion the
vehicle was involved in illegal activity. See United States v. Cervantes, 797
F.3d 326, 328–29, 336 (5th Cir. 2015).
Moreover, immediately after Salazar’s vehicle left the checkpoint, the
Agents seized a truck carrying illegal aliens in its bed, and it was traveling to
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No. 14-51299
Uvalde on the same indirect route. “Although a convoy of two . . . cars
travelling together does not itself justify [a] stop, it may understandably raise
the officer[s’] suspicions”. United States v. George, 567 F.2d 643, 645 (5th Cir.
1978) (internal quotation marks omitted).
The Agents’ reasonable suspicion was supported by other factors as well,
such as: the vehicle’s low rate of speed past the checkpoint; the “rare” presence
of a Lexus on a ranch road typically traversed by work vehicles, see, e.g., United
States v. Nichols, 142 F.3d 857, 871 (5th Cir. 1998); the appearance of the
occupants of the vehicle; and the Lexus’ being registered to an individual from
outside of San Antonio, Texas (not near Eagle Pass or Uvalde), see United
States v. Delgado, 99 F. App’x 493, 496 (5th Cir. 2004). “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.” Zapata-Ibarra, 212 F.3d at 884.
As stated, based on the totality of the circumstances and the weight of
the Brignoni-Ponce factors, the court did not err in determining there was
reasonable suspicion to stop the vehicle in which Salazar was a passenger. See
Cervantes, 797 F.3d at 328–29; Jacquinot, 258 F.3d at 427–28.
AFFIRMED.
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