United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS November 5, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-50157
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FLORENCIO GALVAN-TORRES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
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Before GARWOOD and JONES, Circuit Judges, and ZAINEY, District
Judge*
ZAINEY, District Judge:
Florencio Galvan-Torres (“Galvan”) appeals the district
court’s denial of his motion to suppress after conditionally
pleading guilty to transporting illegal aliens. Galvan argues
that Agent Upton did not have reasonable suspicion of criminal
activity sufficient to order the stop of his vehicle. Buried in
the midst of his argument in that respect, Galvan also briefly
asserts in passing that the reasonable suspicion standard should
not be used in this case because he was immediately arrested, not
merely stopped by a Border Patrol agent. Galvan, however, does
*
District Judge of the Eastern District of Louisiana,
sitting by designation.
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not cite to any authority indicating that a different standard
should be used, does not indicate what standard should be used,
and spends the rest of his brief arguing that reasonable
suspicion was not present. As this argument is not adequately
briefed, the court will not consider it. See FED. R. APP. P.
28(a)(9); see also United States v. Gourley, 168 F.3d 165, 172-73
(5th Cir. 1999).
“In reviewing the denial of a motion to suppress, the
district court’s factual findings are reviewed for clear
error, and its legal conclusions, including whether there was
a reasonable suspicion for a stop, are reviewed de novo.”
United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001),
cert. denied, 534 U.S. 1116 (2002). A factual finding is not
clearly erroneous if it is plausible in light of the record as a
whole. Id. The evidence presented at a suppression hearing must
be viewed in the light most favorable to the prevailing party.
Id.
The Fourth Amendment permits a Border Patrol agent
conducting a roving patrol to stop a vehicle for purposes of a
temporary investigation “if the officer’s action is supported by
reasonable suspicion to believe that criminal activity may be
afoot.” United States v. Arvizu, 534 U.S. 266, 273 (5th Cir.
2002) (internal quotation marks and citation omitted). Reviewing
courts must look to “the totality of the circumstances of each
case to see whether the detaining officer has a particularized
No. 03-50157
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and objective basis for suspecting legal wrongdoing.” Id. at
273. We have set forth factors that “may be” considered in the
“fact-intensive” reasonable suspicion analysis, which “weigh[s]
not the individual layers, but the laminated total” of all
circumstances. Jacquinot, 258 F.3d at 427. These factors
include:
(1) proximity to the border; (2)
characteristics of the area; (3) usual traffic
patterns; (4) agent’s previous experience in
detecting illegal activity; (5) behavior of
the driver; (6) particular aspects or
characteristics of the vehicle; (7)
information about recent illegal trafficking
in aliens or narcotics in the area; and (8)
the number, appearance, and behavior of the
passengers.
Id. at 427. “No single fact is determinative” of the outcome of
a reasonable suspicion analysis. United States v. Guerrero-
Barajas, 240 F.3d 428, 433 (5th Cir. 2001).
The totality of the circumstances in this case shows that
Agent Upton did have a reasonable suspicion that Galvan’s vehicle
was involved in criminal activity. Agent Upton first encountered
Galvan’s vehicle within 50 miles of the Mexican border. See
Jacquinot, 258 F.3d at 428. Galvan was driving in close
proximity to a pickup on a sparsely traveled road with a
reputation as a smuggling route between midnight and 1:00 a.m.
See id.; United States v. Villalobos, 161 F.3d 285, 290 (5th Cir.
1998). After encountering Galvan’s vehicle, Agent Upton turned
around and found the pickup abandoned on the side of the road
No. 03-50157
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with its occupants fleeing and Galvan’s vehicle nowhere in sight,
leading Agent Upton to surmise that Galvan’s vehicle had sped
away. See Arvizu, 534 U.S. 273-74 (citation omitted) (inferences
and deductions of law enforcement officers should be given
weight); Jacquinot, 258 F.3d at 427.
Galvan’s argument that traveling near the border, traveling
in a high crime area, and traveling in close proximity to another
vehicle on a rarely traveled road are insufficient, by
themselves, to establish reasonable suspicion is a reformulation
of the “factors in isolation” argument which the Supreme Court
rejected and is without merit. See Arvizu, 534 U.S. at 274.
Contrary to Galvan’s assertion, United States v. Rodriguez-Rivas,
151 F.3d 377 (5th Cir. 1998), is easily distinguishable from the
case at bar. In Rodriguez-Rivas, 151 F.3d at 380, unlike the
present case, the vehicle in question was more than 50 miles from
the border, a factor we have considered “vital.” Jacquinot, 258
F.3d at 428. Further, the Rivas court did not mention the time
of day at which the stop occurred. However, the evidence in
Galvan’s case shows that it was very unusual to see a car–-much
less two apparently traveling together–-on this road at 1:00 a.m.
The court will not consider Galvan’s argument that the pickup
could not have been following his vehicle as closely as Agent
Upton testified because that contention is based upon facts not
found in the record. See United States v. Valdes, 545 F.2d 957,
959 (5th Cir. 1977).
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In sum, the totality of the circumstances show that Agent
Upton had a reasonable suspicion of criminal activity sufficient
to order the stop of Galvan’s vehicle. See Villalobos, 161 F.3d
at 291-92. Accordingly, the district court did not err in
denying Galvan’s motion to suppress.
AFFIRMED.