United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 24, 2007
Charles R. Fulbruge III
Clerk
No. 05-41611
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROSA MARIA HERNANDEZ,
Defendant-Appellant.
______________________
Appeal from the United States District Court
for the Southern District of Texas
______________________
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Defendant Rosa Hernandez argues that no reasonable suspicion
supported the stop of her car by a roving patrol approximately
eighteen miles from the Rio Grande. We affirm.
I
The Laredo North Border Patrol Station is located 15 miles
north of Laredo on I-35, south of the intersection of I-35 and US
83.1 US 83, a mostly north-south road, is a notorious alien
smuggling route; aliens follow ranch or county roads or walk about
six hours through the desert from the Rio Grande, approximately
1
US 83 and I-35 merge in Laredo but split about 20 miles north of the
city. “Intersection” refers to this northern split.
eighteen miles away, for pickup by smugglers on US 83, north of any
checkpoint.
Border Patrol Agent Nicholas Lopez spent his 17-year career at
the Laredo North Station doing roving patrols along US 83. Between
3:00 p.m. and 11:00 p.m. on Sunday, January 30, 2005, he and a
partner were on roving patrol. Agent Antonia Parra, with two-
years’ experience on such patrols, was on similar patrol in a
different area with his partner. These roving patrols also lay up
where aliens might join smugglers, track the brush, and respond to
tips.
At about 8:45 p.m., an anonymous tipster called the Laredo
North Checkpoint facility, out of which the roving patrols were
based, and reported that two vehicles, a red Suburban and a red
pickup truck, had just stopped at the Long Branch Saloon on US 83,
picked up a load of illegal aliens, and headed north. The Saloon
was a mile north of the intersection of I-35 and US 83. It was a
well-known rendezvous spot, with a nearby lay-up area often
littered with personal effects and food left by illegal aliens.
The tip was relayed over the radio.2 Lopez, who was driving south
on US 83 and had just passed the Saloon, turned around and headed
north toward the Saloon. When he reached it, he noticed four or
five vehicles in the parking lot, none matching the tipster’s
2
The origins of the tip and the relay to the patrols are unclear. The
significant fact is that the tip was directed to the Laredo North Checkpoint
facility.
2
description. He continued north, turning on his lights, as he
claims to alert other officers to his presence and to avoid being
stopped for speeding.
When Parra heard the call, he drove from a side road to US 83
and headed north himself.3 After about three to five minutes, he
encountered a red Suburban driving north. The Suburban pulled over
and stopped on its own; Parra hadn’t turned on his light or
otherwise pulled the car over. Parra thought the occupant needed
assistance, so he pulled over and approached the car. He talked
with the driver, Esteban Herndandez-Ramirez, who offered no
explanation for pulling over and stopping. At Parra’s request,
Esteban produced his green card, and he told Parra that he was
returning from Laredo after dropping off his wife at a bus station.
He claimed that his wife was traveling by bus into Mexico and that
he was heading home back to Houston. Presumably there was no one
else in the car. Around this time, Parra ran a registration check
on the Suburban. Thinking Esteban’s explanation odd since I-35 was
a better route to Houston, Parra asked Esteban why he was on US 83.
Esteban claimed to have stopped to purchase a bag of chips. After
Parra’s supervisor, Agent Luis Jimenez, arrived on the scene,
Jimenez asked Esteban for his driver’s license. Jimenez checked
the license. When the registration came back clean, Esteban was
allowed to leave and Jimenez set out to join Lopez further north on
3
The relative locations of the stops by Parra and Lopez are unclear, but
they are irrelevant to this appeal.
3
US 83. Parra also drove north.
While traveling north on US 83, Lopez passed two or three
cars, none of which were red or pickups, which moved to the
shoulder to allow Lopez to pass. About five to seven minutes and
ten miles since driving past the Saloon, about the same time that
Parra pulled over Esteban, Lopez encountered a red pickup. It too
pulled over, and Lopez pulled over behind it and approached. The
driver, defendant Rosa Hernandez, gave Lopez her green card. Lopez
found four illegal aliens in the pickup. Hernandez told Lopez that
she stopped at the Saloon parking lot when the four aliens
inexplicably jumped in her pickup. As Lopez was talking with
Hernandez, Jimenez arrived and Parra drove on past.
When Jimenez learned of Hernandez’s identity, he immediately
radioed to Parra, suspecting that Rosa and Esteban were married.
The two men discussed the issue. Jimenez told Parra to stop
Esteban. He did so, asking Esteban if Rosa was his wife and if
they were smuggling aliens. He admitted both.
Esteban and Rosa were eventually charged with aiding and
abetting the transportation of two illegal aliens for financial
gain. The district court denied their motions to suppress, noting
especially that there was no evidence of other red trucks in the
area. After a bench trial, the district court found defendants
4
guilty.4 The PSR recommended six to twelve months’ imprisonment
for both defendants, but Judge Alvarez sentenced them to only three
years’ probation with six months home detention. Rosa appeals.5
II
Where, as here, the facts are undisputed, we review de novo
the lower court’s legal conclusion that reasonable suspicion
supported the stop.6
Border Patrol agents on roving patrol may stop a vehicle
when they are aware of specific articulable facts,
together with rational inferences from those facts, that
reasonably warrant suspicion that the particular vehicle
is involved in illegal activity. See United States v.
Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574[]
(1975); [United States v. ]Villalobos, 161 F.3d [285,]
288 [(5th Cir. 1998)]. Factors that may be considered
include: (1) the characteristics of the area in which the
vehicle is encountered; (2) the arresting agent's
previous experience with criminal activity; (3) the
area's proximity to the border; (4) the usual traffic
patterns on the road; (5) information about recent
illegal trafficking in aliens or narcotics in the area;
(6) the appearance of the vehicle; (7) the driver's
behavior; and, (8) the passengers' number, appearance and
behavior. See Brignoni-Ponce, 422 U.S. at 884-85, 95
S.Ct. 2574. Reasonable suspicion requires more than a
mere unparticularized hunch, but considerably less than
proof by a preponderance of the evidence. See United
States v. Gonzalez, 190 F.3d 668, 671 (5th Cir. 1999). No
4
In her motion to suppress, Hernandez stated that the tipster said the
truck was maroon while her truck was red. In orally arguing that motion,
however, everyone, including Hernandez, said the tip identified a red truck.
Then just before trial, the parties stipulated that the tipster said the truck
was maroon. Neither party mentioned the discrepancy in its brief or at oral
argument, both referring the tip as about a red truck. Accordingly, we give the
discrepancy no significance.
5
We dismissed Esteban’s appeal after he failed to pay for the appeal or
seek in forma pauperis status.
6
See United States v. Portillo-Aguirre, 311 F.3d 647, 651-52 & n.6 (5th
Cir. 2002).
5
single factor is determinative; the totality of the
particular circumstances known to the agents are examined
when evaluating the reasonableness of a roving border
patrol stop. See United States v. Morales, 191 F.3d 602,
604 (5th Cir. 1999)[]; Villalobos, 161 F.3d at 288.
The characteristics of the area in which the vehicle was
encountered and the area's proximity to the border are
important considerations in the reasonableness
determination. See Villalobos, 161 F.3d at 288-89.
Proximity to the border has been recognized by this court
as a factor supporting reasonable suspicion, even when
the vehicle is more than the benchmark fifty miles from
the border. See Gonzalez, 190 F.3d at 672 (citing
Villalobos, 161 F.3d at 289). Close proximity to the
border is not required if other specific articulable
facts support a finding of reasonable suspicion. See
United States v. Aldaco, 168 F.3d 148, 150 (5th Cir.
1999).7
An anonymous tip may provide the reasonable suspicion.8
Factors to be considered are: “(1) the credibility and reliability
of the informant; (2) the specificity of the information contained
in the tip or BOLO report; (3) the ability of the officers in the
field to verify the information in the field; and (4) whether the
tip deals with active or recent activity.”9 “[A]n informant’s
‘veracity,’ ‘reliability,’ and ‘basis of knowledge’...[are] ‘highly
relevant in determining the value of his report.’”10
Hernandez notes that Lopez conceded that US 83 is a major
highway and that he noticed nothing suspicious about the vehicle
7
United States v. Ceniceros, 204 F.3d 581, 584 (5th Cir. 2000).
8
Id.
9
United States v. Perkins, 352 F.3d 198, 200 (5th Cir. 2003).
10
Alabama v. White, 496 U.S. 325, 327-29 (1990) (internal citations
omitted).
6
itself or its passengers; she acknowledges that proximity to the
border is a factor, but she reminds that proximity isn’t
dispositive and argues it is less important where the defendant is
stopped in a populated area. Consequently, she argues, whatever
suspicion Lopez had came almost exclusively from the anonymous tip.
And that tip, she continues, was insufficient because it was too
vague. The argument continues that Lopez admitted that red cars
and trucks wouldn’t be unusual on US 83 or at the Saloon around
9:00 p.m., that nothing validated the tip: Lopez saw nothing
unusual at the Saloon, there was no prediction of future behavior,11
and there was no other corroboration. In short, she argues, Lopez
had only a bare tip about a red pickup and stopped the first red
pickup he encountered.12
11
See United States v. Roch, 5 F.3d 894, 896 (5 Cir. 1993) (holding that
such a prediction shows reliability).
12
She compares her case to several others, arguing that her case presents
less suspicion than all of them. See White, 496 U.S. at 329 (holding that a tip
that White would be leaving a particular location in a particular car traveling
to a particular location was sufficient, although presenting a “close case”);
United States v. Jaquez,421 F.3d 338, 340 (5th Cir. 2005) (holding that a radio
dispatch about a “red vehicle” being involved in a shooting incident in a certain
area was insufficient to support the stop of a red car in that area fifteen
minutes later); United States v. Lopez-Gonzalez, 916 F.2d 1011 (5th Cir. 1990)
(finding reasonable suspicion based on a tip that two vehicles would begin at a
certain location near the river and travel a certain route, and agents saw that
occur after people loaded bales and sacks into the car before leaving);
Ceniceros, 204 F.3d at 585 (finding reasonable suspicion based on a tip that a
white 90s model Chevy Lumina would be traveling on Highway 118 from Lajitas,
Texas, driven by a lone hispanic male, and the agent, after seeing such a car,
ran the license plate and discovered that it was registered to a white woman in
Dallas, noticed no Big Bend National Park permit sticker, as many cars in that
area had, observed speed fluctuations and drift, suggesting concern about the
agent, and noticed that the car appeared to be heavily loaded in the back);
United States v. Roch,5 F.3d 894, 898 (5th Cir. 1993) (finding no reasonable
suspicion based on a tip from an informant reliable in the past that a white male
named Frank was driving an orange and white truck and staying at a certain hotel
with his girlfriend, and the police saw a white male leave the hotel with a white
7
We conclude that reasonable suspicion supported the stop.
These events played out in an area close to the border and a
notorious alien smuggling route. Moreover, the tip itself was not
bare. The tipster call was a rifle-shot to the nearest checkpoint
facility, out of which the roving patrols were based, as opposed to
any other office in the Laredo Sector, suggesting familiarity with
the Border Patrol and knowledge and experience with reporting
illegal activity.13 The tipster claimed to have seen the smuggling
firsthand just moments before the call, and the Long Branch Saloon,
it will be recalled, was next to a well-known lay-up area for
illegal aliens, facts which point to a knowledgeable tipster.
There was more. The tip provided the color, number, and type of
the vehicles - a red truck and a red Suburban - and that
description was validated when Lopez encountered Hernandez. The
totality of the circumstances provided reasonable suspicion to stop
Maria Hernandez.
AFFIRMED.
woman in an orange and white truck).
13
At oral argument, Hernandez contended that we could not rely on any
reliability stemming from this fact because Agent Lopez didn’t know what number
the tipster called. However, in assessing whether an agent had reasonable
suspicion, we look to the “collective knowledge” of all agents and officers. See
United States v. Ervin, 907 F.2d 1534, 1539 (5th Cir. 1990).
8