UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-1809
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE HIPOLITO CHAVEZ-VILLARREAL,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(September 21, 1993)
Before POLITZ, Chief Judge, REYNALDO G. GARZA and JOLLY, Circuit
Judges.
POLITZ, Chief Judge:
Convicted of possession with intent to distribute marihuana
and an associated firearms offense, Jose Hipolito Chavez-Villarreal
appeals denial of his motion to suppress. Finding that the
inculpatory evidence was the fruit of an illegal stop, we vacate
and remand.
Background
Shortly before 9:00 a.m., Border Patrol Agent Gerald R. Vonn
was monitoring eastbound traffic on Interstate 40 twelve miles west
of Amarillo, Texas and 350 miles north of the Mexican border. The
Border Patrol outpost in the Amarillo-Lubbock area, which Vonn
supervised, annually apprehended over 1,000 undocumented aliens on
this stretch of interstate highway. A major artery spanning the
country, Interstate 40 also carried heavy volumes of legitimate
traffic; Vonn, an experienced agent familiar with the area,
characterized it as "one of the most heavily used routes in the
United States."
On this particular day Vonn was called out to assist agents
who had apprehended a group of persons smuggled across the border.
While the agents completed paperwork Vonn observed traffic. All of
the agents' vehicles were parked under an overpass; Vonn had an
unmarked car and the other agents were in two patrol cars with
insignia and overhead lights. There was a low spot in the highway
100 yards west of the overpass; eastbound vehicles could not see
the officers' vehicles until driving through the low spot.
An older model Suburban with dark tinted windows drew Vonn's
attention. Vonn recognized the Suburban as the type of vehicle
used to carry undocumented persons but he also knew that Suburbans
are a very popular vehicle in West Texas. Using his binoculars
Vonn saw the occupants of the Suburban were a driver and a
passenger. As the Suburban passed, however, Vonn could see only
the driver, who had a rigid demeanor and looked straight ahead.
The vehicle displayed Arizona license plates, a state considered to
be one of the states of origin of smuggling expeditions. Vonn
decided to follow the Suburban.
2
The Suburban began to change lanes and speeds, slowing down,
then speeding up. It did not, however, exceed the speed limit. As
Vonn pulled alongside the passenger sat up. The driver, an
Hispanic male, continued to look straight ahead. Vonn decided to
stop the vehicle.
Upon request for proof of citizenship the two occupants
presented Vonn with their alien registration cards. The driver was
Chavez-Villarreal; the passenger was a 15-year old boy. Vonn
noticed a lumpy sleeping bag in the back of the Suburban which
could have hidden another occupant. Retaining the alien
registration cards, Vonn asked and received permission from Chavez-
Villarreal to look inside. As he inspected the sleeping bag he
felt a soft-sided suitcase, saw a rifle and ammunition, and smelled
chili powder, sometimes used to mask the odor of marihuana.
Suspecting that he had found controlled substances Vonn called for
back-up.
When help arrived Vonn informed Chavez-Villarreal of his
suspicions, gave him Miranda1 warnings and asked permission to
search the Suburban. Chavez-Villarreal again consented, this time
signing a written consent form. Over 88 pounds of marihuana were
discovered. Chavez-Villarreal was arrested. During processing he
told Vonn that he had agreed to drive the marihuana from Phoenix to
a rest area near Amarillo for $1,500 to $2,000. The 15-year old
passenger was released when Chavez-Villarreal insisted that the boy
1
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d
694 (1966).
3
was along only to keep him awake during the overnight drive and
knew nothing about the contraband.
The grand jury handed up an indictment charging Chavez-
Villarreal with violating 21 U.S.C. § 841(a)(1), possession with
intent to distribute marihuana, and 18 U.S.C. § 924(c)(1), use of
a firearm in connection with a drug trafficking offense. He moved
to suppress the evidence seized in the search, including the
marihuana, and the statements that he had made after his arrest.
That motion was denied and Chavez-Villarreal entered a conditional
plea of guilty, reserving his right to appeal the denial of his
motion to suppress. After sentencing he timely appealed.
Analysis
We employ a two-tier standard in reviewing denial of motions
to suppress, reviewing the district court's factual findings for
clear error and its ultimate conclusion as to the constitutionality
of the law enforcement action de novo.2 Applying this standard, we
conclude that the district court erred in finding the stop of
Chavez-Villarreal's vehicle constitutional. Finding the stop legal
the district court did not address whether the subsequent consent
to search was the fruit of unlawful conduct. Having before us an
adequate record, in the interests of judicial economy we reach this
issue and hold that the consent was tainted by the unconstitutional
stop, poisoning the fruits of the subsequent search.
2
United States v. Diaz, 977 F.2d 163 (5th Cir. 1992).
4
1. Legality of the stop.
The fourth amendment permits a Border Patrol agent to select
a particular vehicle for a stop only upon reasonable suspicion that
the occupants are engaged in or about to engage in criminal
activity.3 We assess the basis for a stop not by isolating any
component factor, each of which may indicate wholly innocent
behavior standing alone, but by examining the entire picture,4
which must yield articulable and objective manifestations of
particularized suspicion.5
The picture presented by the record is that of an Hispanic man
cautiously driving a popular older model vehicle on a major
interstate highway, 350 miles from the Mexican border, at 9:00 a.m.
with a companion who briefly slumped in his seat. After an
unmarked vehicle dropped in behind, he switched lanes, slowed down,
then resumed a speed within the legal limits. We are not persuaded
that these circumstances gave rise to a reasonable suspicion of
criminal activity.
Of "vital" importance,6 Vonn could not infer from the location
of the vehicle that it came from the border. Nor do the prior
numerous incidents of arrests on Interstate 40 avail; the
legitimate traffic on the highway was so heavy that the probability
3
United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66
L.Ed. 2d 621 (1981).
4
United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104
L.Ed. 2d 1 (1989).
5
Cortez.
6
United States v. Garcia, 732 F.2d 1221, 1223 (5th Cir. 1984).
5
that any particular vehicle was smuggling an undocumented person
was exceedingly slight.7 That the passenger slouched in his seat
as the Suburban approached the underpass could suggest that he was
trying to hide, but such an inference is at least partially
dispelled by the fact that he sat erect as Vonn's car drew abreast.
Because passengers commonly slump in their seats to rest, we have
required a more affirmative indication of an attempt to hide.8 We
find nothing suspicious about a driver changing lanes and slowing
down when he realizes a vehicle approaching from the rear; that is
a normal reaction if the driver wishes to let the tailing vehicle
pass.
Further, we accord no weight to Chavez-Villarreal's failure to
look at the patrol cars9 and very little to his Hispanic
appearance; his license plates indicate that he was from a state
with a substantial Hispanic population.10 Nor are we disposed to
recognize an inference of criminal conduct from the Arizona tags;
it cannot be gainsaid that a substantial amount of legitimate
traffic from Arizona travels on Interstate 40 in West Texas.11 The
7
For the same reason, we cannot accept presence on the road at
9 a.m. as grounds for suspicion, even though, as Vonn testified at
the suppression hearing, traffic leaving border areas in Arizona at
midnight would be expected to arrive in Amarillo at mid-morning.
8
Compare Garcia with United States v. Lamas, 608 F.2d 547 (5th
Cir. 1979).
9
United States v. Cardona, 955 F.2d 976 (5th Cir.), cert.
denied, U.S. , 113 S.Ct. 381, 121 L.Ed. 2d 291 (1992).
10
United States v. Orona-Sanchez, 648 F.2d 1039 (5th Cir.
1981).
11
See Lamas.
6
stop herein violated the fourth amendment.12
2. Validity of the Consent.
Chavez-Villarreal consented to both of the searches that
ultimately revealed the marihuana and resulted in his arrest.
Therefore our finding of an illegal stop does not definitively
determine whether the evidence derived from the subsequent searches
must be excluded. Consent to search may, but does not necessarily,
dissipate the taint of a fourth amendment violation.13
The admissibility of the challenged evidence turns on a two-
pronged inquiry: whether the consent was voluntarily given and
whether it was an independent act of free will. The first prong
focuses on coercion, the second on causal connection with the
constitutional violation. Even though voluntarily given, consent
does not remove the taint of an illegal detention if it is the
product of that detention and not an independent act of free will.
To determine whether the causal chain was broken, we consider: (1)
the temporal proximity of the illegal conduct and the consent; (2)
the presence of intervening circumstances; and (3) the purpose and
12
We are aware of our decision in United States v. Ramirez-
Lujan, 976 F.2d 930 (5th Cir. 1992), cert. denied, U.S. ,
113 S.Ct. 1587, 123 L.Ed. 2d 153 (1993), to admit evidence obtained
in a contested stop under the good faith exception to the
exclusionary rule. The government does not argue the good faith
exception here; it does not apply. Unlike Ramirez-Lujan, the stop
in the instant case did not take place on a border road whose usual
travelers were known on an individual basis by the Border Patrol
agent.
13
Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed. 2d
416 (1975).
7
flagrancy of the initial misconduct. The burden of showing
admissibility rests on the government.14
At the threshold we note elements of coercion in connection
with both consents.15 After he had ascertained the legal
immigration status of Chavez-Villarreal and his passenger, Agent
Vonn retained possession of their alien registration cards. He
still held the cards when he asked for permission to search. The
card was vital to Chavez-Villarreal's legal presence in this
country; without it, his disposition, if indeed not ability, to
decline Vonn's request expectedly was significantly impaired.16
We pretermit, however, our inquiry into voluntariness because
we are convinced that the foregoing circumstances and others
require a finding that the taint of the illegal detention had not
been dissipated at the time agent Vonn obtained the defendant's
14
Brown; United States v. Richard, 994 F.2d 244 (5th Cir.
1993); United States v. Pierre, 932 F.2d 377 (5th Cir. 1991),
reversed on other grounds, 958 F.2d 1304 (5th Cir.) (en banc),
cert. denied, U.S. , 113 S.Ct. 280, 121 L.Ed. 2d 207 (1992).
15
Six factors bear on the voluntariness of consent: (1) the
voluntariness of the defendant's custodial status; (2) the presence
of coercive police procedures; (3) the extent and level of the
defendant's cooperation; (4) the defendant's awareness of his right
to refuse to consent; (5) the defendant's education and
intelligence; and (6) the defendant's belief that no incriminating
evidence will be found. Richard.
16
See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.
2d 229 (1983) (retention of the defendant's airplane ticket and
driver's license is a show of official authority indicative of a
seizure rather than a consensual encounter); United States v.
Berry, 670 F.2d 583 (5th Cir. 1982) (en banc) (same); United States
v. Jordan, 958 F.2d 1085, 1087 (D.C.Cir. 1992) ("Without his ticket
and license, the defendant was not able to 'decline the officer's
request' for an interview"); United States v. Gaviria, 775 F. Supp.
495 (D.R.I. 1991) (officer's retention of the defendant's green
card is evidence that his consent to search was not voluntary).
8
consent. Less than 15 minutes elapsed between the stop and the
second search. There were no intervening occurrences that might
have attenuated the taint before the verbal consent to the first
search. To the contrary, Vonn's retention of the green cards
reinforced his authority. Vonn told Chavez-Villarreal that he
could refuse to consent to the second search but by then refusal
seemed pointless; Vonn had made known his suspicions about
narcotics. Although we recently held such an advisory sufficiently
attenuating in United States v. Kelley,17 that case did not involve
circumstances such that the consenting party would have thought
that discovery of the incriminating evidence was inevitable.
Finally, we are persuaded that the required indicia of
individualized suspicion were so utterly lacking herein that only
suppression will serve the deterrence function of the exclusionary
rule.18
The motion to suppress should have been granted. The evidence
found in the searches of the Suburban, including the marihuana and
the firearm, is inadmissible. So too are the incriminating
statements that Chavez-Villarreal made during processing. The
government has advanced no persuasive argument for attenuation with
respect to these statements and we find none in the record.
17
981 F.2d 1464 (5th Cir.), cert. denied, U.S. , 113
S.Ct. 2427, 124 L.Ed. 2d 647 (1993). In Pierre, we discussed the
divergent lines of authority on this issue in this circuit.
18
Cf. United States v. Sheppard, 901 F.2d 1230 (5th Cir. 1990)
(where alleged misconduct was at worst a minor and technical fourth
amendment violation, suppression would not promote the deterrence
function of the exclusionary rule).
9
The convictions are VACATED and the matter is REMANDED for
further proceedings consistent herewith.
10