Case: 23-40121 Document: 00516929755 Page: 1 Date Filed: 10/12/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 12, 2023
No. 23-40121
Summary Calendar Lyle W. Cayce
Clerk
____________
United States of America,
Plaintiff—Appellee,
versus
Andres Salas, Jr.,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:22-CR-1367-1
______________________________
Before Smith, Higginson, and Engelhardt, Circuit Judges.
Stephen A. Higginson, Circuit Judge:*
Andres Salas, Jr., entered a conditional guilty plea to one count of
transporting an alien within the United States, reserving the right to appeal
the denial of his motion to suppress evidence discovered during the stop of
his vehicle along Highway 281 near San Manuel, Texas, by a U.S. Border
Patrol agent. He contends there was no reasonable suspicion to justify the
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-40121 Document: 00516929755 Page: 2 Date Filed: 10/12/2023
No. 23-40121
stop. We disagree and affirm the district court’s denial of the motion to
suppress.
When reviewing the denial of a motion to suppress, we review legal
conclusions de novo, including the district court’s conclusion that reasonable
suspicion existed for the stop, and we review factual findings for clear error.
United States v. Cervantes, 797 F.3d 326, 328 (5th Cir. 2015). “Reasonable
suspicion requires more than merely an unparticularized hunch, but
considerably less than proof of wrongdoing by a preponderance of the
evidence.” United States v. Garza, 727 F.3d 436, 440 (5th Cir. 2013) (internal
quotation marks and citation omitted). “Factors that ordinarily constitute
innocent behavior may provide a composite picture sufficient to raise
reasonable suspicion in the minds of experienced officers.” Cervantes, 797
F.3d at 329 (internal quotation marks and citation omitted).
To determine whether reasonable suspicion exists in this context, this
court examines the totality of the circumstances and weighs the factors set
forth in United States v. Brignoni-Ponce, 422 U.S. 873 (1975). They are not
exclusive, United States v. Garcia, 732 F.2d 1221, 1223 (5th Cir. 1984), and
include:
(1) the area’s proximity to the border; (2) characteristics of the
area; (3) usual traffic patterns; (4) the agents’ experience in
detecting illegal activity; (5) behavior of the driver; (6)
particular aspects or characteristics of the vehicle; (7)
information about recent illegal trafficking of aliens or narcotics
in the area; and (8) the number of passengers and their
appearance and behavior.
Cervantes, 797 F.3d at 329.
The district court concluded that “there [was] reasonable suspicion
based on [the] totality of circumstances.” Suppression Hr’g Tr. at 60:18-19,
United States v. Salas, No. 22-01367 (S.D. Tex. Apr. 11, 2023), ECF No. 63
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No. 23-40121
(“Hr’g Tr.”).1 The district court pointed to the presence of the “previously
identified known scout vehicle” driving ahead of Salas. Id. at 60:22-25. Salas
argued that the scout vehicle’s presence could not go to reasonable suspicion
because it drove approximately six minutes ahead of the vehicle Salas was
driving, but the district court rejected this argument on the grounds that it
was likely that a scout vehicle would travel some distance ahead of a “load”
vehicle. Id. at 61:1-11. Indeed, our court has recognized that “some
distance . . . must be maintained if the lead car is to be of any use in alerting
the load car of checkpoints and patrols,” United States v. Barnard, 553 F.2d
389, 392 n.6 (5th Cir. 1977), though “[r]easonable suspicion cannot result
from the simple fact that two cars are traveling on a roadway . . . ,one in front
of the other,” without more, United States v. Rangel-Portillo, 586 F.3d 376,
382 (5th Cir. 2009) (citation omitted). The district court then turned to two
of the agent’s observations about Salas’s vehicle: the vehicle was “pitched in
a manner reflecting a heavy load in the rear trunk area, that’s indicative
of . . . people being secreted in the cargo compartment,” Hr’g Tr. at 61:15-
18, and “the odd behavior of the passenger, who attempt[ed] to secrete
himself from view, and also [the] odd behavior of all the passengers who s[a]t
rigidly facing forward,” id. at 61:22-25. The district court did not err in
concluding that that these factors support the presence of reasonable
suspicion. See Garcia, 732 F.2d at 1224-25; United States v. Lopez-Gonzalez,
916 F.2d 1011, 1014-16 (5th Cir. 1990).
The district court also looked to testimony that the vehicle slowed
down to ten-to-fifteen miles below the speed limit and continued at that slower
speed, Hr’g Tr. at 62:17-20, which can support a finding of reasonable
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1
Contrary to Salas’s contention on appeal, the district court expressly “put no
weight” on the agent’s observation that the vehicle driven by Salas swerved. Hr’g Tr. at
62:8-9.
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No. 23-40121
suspicion, United States v. Samaguey, 180 F.3d 195, 199 (5th Cir. 1999); see
also United States v. Hernandez-Mandujano, 721 F.3d 345, 350 (5th Cir. 2013)
(recognizing that continuing to drive below speed limit may contribute to
reasonable suspicion depending on circumstances). Finally, the district court
noted that the Border Patrol agent who conducted the stop “kn[ew] what to
look for” because of his experience patrolling the area, Hr’g Tr. at 63:8-11,
which also goes to the presence of reasonable suspicion, Garza, 727 F.3d at
441.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
4