UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 92-8085
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNESTO RAMIREZ-LUJAN,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the
Western District of Texas
______________________________________________
(October 23, 1992)
Before REYNALDO G. GARZA and GARWOOD, Circuit Judges and WERLEIN,*
District Judge.
GARWOOD, Circuit Judge:
Defendant-appellant, Ernesto Ramirez-Lujan (Ramirez), appeals
his conviction for possession of marihuana with the intent to
distribute. His sole challenge is to the admissibility of evidence
on the grounds that it was seized after an illegal initial stop by
a border patrol agent. Based on the circumstances surrounding the
seizure, we find that the evidence was admissible under the good
faith exception to the exclusionary rule and we affirm.
*
District Judge of the Southern District of Texas, sitting by
designation.
Facts and Proceedings Below
Wesley Coleman (Coleman) worked as an agent for the border
patrol at the Desert Haven checkpoint, which is on Highway 62-180
about thirty-five miles from the Mexican border and twenty-five
miles east of El Paso, Texas. About three blocks west of the
checkpoint is a turnoff for Pinon Road. The checkpoint is well
marked and can be seen from the Pinon Road turnoff. Pinon Road is
a some thirty-five mile long unpaved road stretching from Highway
62-180 to Dell City, Texas.
Pinon Road is generally used as an access road for the few
families that live there or for drug and alien smuggling. For
nonlocals, it is a road to nowhere since only two ranches and a
pipeline are within ten or twenty miles of the turnoff from Highway
62-180. Pinon Road is known for alien and drug smuggling because
it allows people to proceed to Dell City, which has a reputation as
a drug distribution center, from Mexico while avoiding border
patrol checkpoints. It is impractical for a person acting lawfully
to use Pinon Road to get to Dell City since there is a much faster
paved highway via the checkpoint. The people who live or work in
Dell City get there by going through the checkpoint; they do not
use Pinon Road.
Coleman testified that he had some three years experience at
this location, that he was familiar with the families who lived on
Pinon Road within ten or twenty miles of the Highway 62-180 turnoff
and that he recognized their cars and the cars of most of their
employees. He added that Pinon Road is not used much by the Pinon
Road residents or their workers around 6:30 in the morning.
2
Sometimes the local people using Pinon Road would drive past the
Pinon Road turnoff to the checkpoint to check in with the border
patrol before proceeding on Pinon Road. Coleman stated that he has
a policy of stopping every car on Pinon Road that he does not
recognize.
At 6:30 a.m. on October 10, 1991, Coleman observed Ramirez
head east on Highway 62-180 and turn onto Pinon Road in a late
1970's model pickup truck, travelling a little fast on the dirt
road. Coleman did not recognize this vehicle as one used by the
ranchers or their guests. He decided to investigate.
The officer pursued Ramirez for about four miles. Though
trailing closely, Coleman could not identify the license plate
number because of the bumpy terrain. Coleman then turned on his
red flashing lights and Ramirez pulled over. Ramirez presented a
valid permanent resident alien's card. Ramirez appeared nervous
and stated that the truck did not belong to him. Coleman told
Ramirez to follow him to the checkpoint so he could verify
Ramirez's immigration papers since the terrain precluded radio
contact. At the checkpoint, the dog alerted that it smelled
contraband and the truck was searched. The search revealed a false
panel in the truck containing 308 pounds of marihuana.1
Ramirez filed a motion to suppress the fruits of this search,
which was denied following an evidentiary hearing. Ramirez was
convicted of knowingly and intentionally possessing over 100
1
The initial verification of Ramirez's documents suggested
that the truck was stolen and that Ramirez was wanted. This
information later proved false.
3
kilograms of marihuana with the intent to distribute in violation
of 21 U.S.C. § 841 (a)(1). He was sentenced to sixty-three months'
imprisonment and four years' supervised release.
Discussion
Ramirez contends that because the stop of his truck violated
the Fourth Amendment, the fruits of the stop should be suppressed
and his conviction overturned. The United States contends, as it
did below, that Coleman reasonably believed that Ramirez was
attempting to avoid the border patrol checkpoint and that the
evidence is admissible because the search was legal or because the
search was justified by the good faith exception.
Normally the fruits of illegal searches and seizures are not
admissible in the prosecution's case in chief under the
exclusionary rule. However, the "good faith exception" to the
exclusionary rule allows the admission of the fruits of some
illegal stops. Under this doctrine we have held that "evidence is
not to be suppressed . . . where it is discovered by officers in
the course of actions that are taken in good faith and in the
reasonable, though mistaken, belief that they are authorized."
United States v. De Leon-Reyna, 930 F.2d 396, 400 (5th Cir. 1991)
(en banc) (quoting United States v. Williams, 622 F.2d 830, 840
(5th Cir 1980), cert. denied, 101 S.Ct. 946 (1981)). See also id.
at 402 (suppression inappropriate where "it would be objectively
reasonable for an experienced officer, situated as was" the officer
making the stop, "to conclude that there was adequate reasonable
suspicion under the Cortez [United States v. Cortez, 101 S.Ct. 690
(1981)] standard and that it was hence lawful to stop the
4
vehicle.").
The issue on appeal is whether Coleman's initial stop of
Ramirez meets either the constitutional test of reasonableness or
the good faith exception so that the fruits of the search are
admissible. The nature of the stop determines the level of
justification required.
Border officers on roving patrol may stop a vehicle only if
they are aware of specific articulable facts that create a
reasonable suspicion that the vehicle contains illegal aliens or
drugs. United States v. Brignoni-Ponce, 95 S.Ct. 2574, 2582 (1975)
(aliens); United States v. Cortez, 101 S.Ct. 690, 697 (1981) (drugs
and other criminal activity); United States v. Lopez, 911 F.2d
1006, 1009 (5th Cir. 1990). Factors weighed in a reasonable
suspicion test include: 1) characteristics of the area; 2)
proximity to the border; 3) usual patterns of traffic and time of
day; 4) previous experience with alien or drug smuggling in the
area; 5) behavior of driver, including "obvious attempts to evade
officers"; 6) appearance or behavior of passengers; 7) appearance
of the vehicle; and 8) officer experience. See Brignoni-Ponce, 95
S.Ct. at 2582.
Border patrol officers may stop vehicles at checkpoints
without reasonable suspicion. United States v. Hasette, 898 F.2d
994, 995 (5th Cir. 1990). Temporary stops without reasonable
suspicion are also permitted in "u-turn" type situations where
people are seen making u-turns or similar maneuvers that avoid
their passing through visible border patrol checkpoints, because
the maneuver is treated as tantamount to a stop at the checkpoint
5
itself. Id. While these cases do not require reasonable suspicion
of criminal activity as such, they appear to be inferentially
grounded on the assumption that a u-turn type maneuver within sight
of the checkpoint being approached gives rise to the reasonable
suspicion that it is taken to avoid going through the checkpoint.2
In United States v. Casteneda, 951 F.2d 44 (5th Cir. 1992),
this Court upheld a stop on Welhausen Road, a gravel road
notoriously used to avoid two border patrol checkpoints. In
Casteneda, the officer smelled a faint odor of marihuana coming
from the truck in front of him through the open window of his car.
The panel said that but for the smell of drugs, the stop was not
legal. Id. at 47 n.4.3 The opinion notes that "[w]ithout the
smell, nothing was unusual about Casteneda being on Welhausen
Road." Id. at 47. So far as the opinion reflects, the officer did
not testify that he was familiar with the vehicles that regularly
used the road or that it was unusual for vehicles to be using the
road at 8:00 p.m. While used to avoid checkpoints, the turnoff
onto Welhausen Road could not be seen from the checkpoint and was
not so close to the checkpoint that turning onto the road could be
regarded as analogous to a u-turn. See id.
Although here there was no marihuana odor as in Casteneda,
other circumstances in this case justify application of the DeLeon-
2
In Hasette the defendant, driving toward the checkpoint,
turned off the road into the entrance of an oil field, left his
truck, discovered the entrance gate was locked, returned to his
vehicle, and drove back in the direction from which he had come.
3
Casteneda did not address the good faith exception of
DeLeon-Reyna, presumably because it ultimately held the stop to
have been legal.
6
Reyna good faith exception. Unlike the situation in Casteneda,
Coleman could reasonably conclude that it was unusual for Ramirez's
truck to be on Pinon Road at that time. Coleman testified that he
knew the truck did not belong to a Pinon Road resident or to one of
their employees and that it was unusual for this truck to be on
Pinon Road at this time. Also, the Pinon Road turnoff was so close
to the checkpoint that an agent could reasonably believe that a
truck, on seeing the checkpoint, turned off the road with the
intent to avoid the checkpoint. The close proximity of Pinon Road
to the border and the checkpoint, the notoriety of the road's use
for illegal activity and to avoid the checkpoint, Coleman's
knowledge of the normal traffic on Pinon Road, especially at 6:30
a.m., and the fact that Pinon Road is basically a road to nowhere,
all generated Coleman's good faith belief that Ramirez was
attempting to avoid the checkpoint and that the stop was legally
based on the requisite reasonable suspicion. Under the Brignoni-
Ponce criteria, and given the similarity to the turn-around cases,
it was objectively reasonable for an experienced officer, situated
as was Coleman, to reach this conclusion.
We hold that, under all the circumstances, agent Coleman acted
with an objectively reasonable good faith belief that he had a
reasonable articulable suspicion that legally justified stopping
Ramirez on Pinon Road.4 The evidence seized at the checkpoint was
4
We do not address whether the stop was constitutional, only
that, considering together all the particular circumstances of
this case, the stop was sufficiently justified under the good
faith exception to allow the fruits of the stop to be admitted in
evidence.
7
hence admissible and Ramirez's conviction and sentence are
affirmed.
AFFIRMED
8