United States v. Ceniceros

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-50793

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOSE EFRAIN CENICEROS,

Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Texas

February 16, 2000

Before HIGGINBOTHAM and SMITH, FALLON, District Judge:
Circuit Judges, and FALLON, District
Judge.* This appeal follows the conviction of
Jose Efrain Ceniceros for possession of
marijuana with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1). The
* issue addressed is whether the seizure of
District Judge of the Eastern District of
evidence by a roving border patrol agent
Louisiana, sitting by designation.

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following a vehicle stop was supported by returned valid and listed Cheryl Ewing of
reasonable suspicion consistent with the Dallas, Texas as the owner of the vehicle.
Fourth Amendment. On appeal, Ceniceros Hampton observed that the vehicle was a
contends that the district court erred in four-door white Chevrolet Lumina. He
denying his motion to suppress. We affirm. backed away from the car for further
observation. Highway 118 serves as an
I. artery for traffic originating from Big Bend
On November 14, 1997, at the beginning National Park. Hampton testified that most
of his shift, United States Border Patrol of the cars departing the park still have the
Agent Jeffrey Hampton and his partner, receipt, or permit sticker, attached to their
Agent Francisco Lopez,1 learned of a "be on windshields. He also testified that park
the lookout" advisory ("BOLO") issued by traffic was considered less likely to be
the Brewster County Sheriff’s Office involved in illegal activity. In this case,
("BCSO"). The BOLO indicated that a "90s Hampton specifically noticed that the
model" white Chevrolet Lumina driven by a Lumina’s windshield did not have a sticker
single Hispanic occupant would be traveling evidencing park visitation. Hampton also
northbound from Lajitas, Texas, on Highway observed that the Lumina’s speed fluctuated
118 that afternoon. The BOLO also between 55 and 70 miles per hour and that it
provided that the vehicle would be carrying drifted back and forth within its lane.
narcotics. The lookout did not provide Hampton believed that such action indicated
license plate information, and Hampton did that the driver was paying closer attention to
not know when or from what source the the marked patrol car following him than to
BCSA received the information. the road. During this time, Hampton also
observed that the Lumina’s shocks recovered
At 3:35 p.m., the agents were heading slowly as it passed over bumps in the road,
southbound on Highway 118, approximately indicating that the vehicle was laden with
25 miles south of Alpine, Texas, when they cargo.
spotted a northbound white Chevrolet sedan.
Hampton observed that the vehicle’s sole After following the Lumina for about ten
occupant was a male of Hispanic origin. He miles, the agent activated his overhead lights
did not recognize the vehicle or its driver as and pulled the vehicle over at a closed border
being local and noted their similarities to the checkpoint station south of Alpine. Before
BOLO. Believing the Chevrolet to be the approaching the driver, Hampton leaned on
subject of the BOLO, Hampton turned his the back of the Lumina to test the shocks,
patrol car around and began following the which were slow to respond. The agent
vehicle. The agent next called in the testified that the slow response was an
vehicle’s license plate number and requested "indication that something was in the trunk."
a registration check. The vehicle registration The agent then approached the driver, later
identified as Ceniceros, and asked about his
citizenship. Ceniceros appeared nervous and
1 slightly hesitant as he answered that he was a
Agent Lopez did not testify at the
suppression hearing, and therefore plays no role in United States citizen. Ceniceros’ nervous
the analysis of this case. All references will be in the and delayed response caused Hampton to
singular (e.g. "the agent," "his vehicle," etc.). doubt its veracity. Hampton asked if

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Ceniceros "had been down south for very II.
long," to which Ceniceros replied "No." The A two-tiered standard of review applies
agent then asked if he could look in the to a district court’s denial of a motion to
Lumina’s trunk, and Ceniceros said "sure." suppress after an evidentiary hearing. See
Ceniceros activated the trunk latch from United States v. Wilson, 36 F.3d 1298, 1303
inside the vehicle, the trunk opened, and (5th Cir. 1994). A district court’s findings of
Hampton immediately smelled marijuana. fact on a motion to suppress are reviewed
Hampton found four flour sacks of marijuana for clear error only, while legal conclusions,
collectively weighing 206 pounds in the including the ultimate conclusion as to
Lumina’s trunk. Ceniceros was placed under whether there was reasonable suspicion for
arrest and advised of his rights. He the stop, are reviewed de novo. See United
subsequently admitted to purchasing the States v. Villalobos, 161 F.3d 285, 288 (5th
marijuana in Mexico and smuggling it into Cir. 1998). The evidence introduced at the
the United States. suppression hearing is viewed in the light
most favorable to the prevailing party, in this
Ceniceros was indicted for possession case the government. See id. at 288.
with intent to distribute marijuana, a
violation of 21 U.S.C. § 841(a)(1). He III.
moved to suppress the fruits of the roving Border Patrol agents on roving patrol
patrol stop, arguing that the agents did not may stop a vehicle when they are aware of
possess the reasonable suspicion required to specific articulable facts, together with
make an investigative detention of his rational inferences from those facts, that
vehicle. After a hearing, the district court reasonably warrant suspicion that the
denied Ceniceros’ motion to suppress. The particular vehicle is involved in illegal
district court concluded that six factors activity. See United States v. Brignoni-
collectively provided the requisite reasonable Ponce, 422 U.S. 873, 884 (1975);
suspicion to stop Ceniceros: (1) the vehicle’s Villalobos, 161 F.3d at 288. Factors that
proximity to the border; (2) the agent did not may be considered include: (1) the
recognize the car as one belonging to a local characteristics of the area in which the
resident; (3) the vehicle and its driver fit the vehicle is encountered; (2) the arresting
description in the BOLO; (4) the vehicle was agent’s previous experience with criminal
registered to a non-Hispanic female in Dallas activity; (3) the area’s proximity to the
but driven by a Hispanic male in the Big border; (4) the usual traffic patterns on the
Bend area; (5) the reaction of the car to road; (5) information about recent illegal
bumps indicated that it was heavily-laden; trafficking in aliens or narcotics in the area;
and, (6) the vehicle’s drifting pattern within (6) the appearance of the vehicle; (7) the
its lane. Ceniceros entered a conditional plea driver’s behavior; and, (8) the passengers’
of guilty, expressly reserving the right to number, appearance and behavior. See
appeal the denial of his motion to suppress. Brignoni-Ponce, 422 U.S. at 884-85.
The court accepted the plea and sentenced Reasonable suspicion requires more than a
Ceniceros to 37 months of imprisonment and mere unparticularized hunch, but
three years of supervised release. This considerably less than proof by a
appeal followed. preponderance of the evidence. See United
States v. Gonzalez, 190 F.3d 668, 671 (5th

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Cir. 1999). No single factor is Ceniceros. A BOLO or anonymous tip may
determinative; the totality of the particular provide the reasonable suspicion required to
circumstances known to the agents are justify an investigatory stop. See Gonzalez,
examined when evaluating the 190 F.3d at 672. The white Chevrolet
reasonableness of a roving border patrol Lumina heading north on Highway 118 and
stop. See United States v. Morales, 191 driven solely by Ceniceros matched the
F.3d 602, 604 (5th Cir. 1999), petition for description in the BOLO received by
cert. filed (Jan. 3, 2000) (No. 99-7729); Hampton at the beginning of his shift that
Villalobos, 161 F.3d at 288. day and corroborated the lookout report.
The agent and the district court were correct
The characteristics of the area in which in considering this fact relevant. This court
the vehicle was encountered and the area’s need not consider whether the lookout alone
proximity to the border are important was sufficient, however, because Hampton
considerations in the reasonableness also considered other factors in appraising
determination. See Villalobos, 161 F.3d at whether there was reasonable suspicion.
288-89. Proximity to the border has been
recognized by this court as a factor Hampton testified that the Lumina’s
supporting reasonable suspicion, even when shocks were slow to respond from even
the vehicle is more than the benchmark fifty subtle bumps in the road, and that this
miles from the border. See Gonzalez, 190 indicated that something was in the vehicle’s
F.3d at 672 (citing Villalobos, 161 F.3d at trunk. The agent’s observations served to
289). Close proximity to the border is not further support his suspicion that the
required if other specific articulable facts Lumina, which fit the BOLO’s description,
support a finding of reasonable suspicion. was engaged in drug trafficking. A vehicle’s
See United States v. Aldaco, 168 F.3d 148, heavily-laden appearance may support a
150 (5th Cir. 1999). When encountered by finding of reasonable suspicion and
Agent Hampton, the Lumina was corroborate an informant’s tip. See United
approximately 70-80 miles from the border. States v. Lopez-Gonzalez, 916 F.2d 1011,
The district court found that the Lumina’s 1014 (5th Cir. 1990); see also Morales, 191
physical presence near the border, taken F.3d at 605-06 (agent’s observations that
alone, did not justify a roving stop. vehicle’s "floating" response to bumps
However, the court did note the fact that the indicated a heavy load was a factor
northbound vehicle was traveling from the supporting reasonable suspicion).
direction of the Mexico-United States border Hampton’s consideration of these
was a legitimate factor when viewed in observations was appropriate.
conjunction with the other factors considered
by the agent. We agree. The agent’s previous experience is
another relevant consideration in the
Another Brignoni-Ponce factor weighed reasonableness determination. Hampton had
in favor of particularized suspicion of the been in the Border Patrol for slightly more
vehicle and its driver in this case. The than one year. He testified that he had
district court found that the BOLO received participated in ten drug seizures resulting
by agent Hampton was a legitimate factor to from vehicle stops along Highways 118 and
be considered when deciding whether to stop 385. While this level of experience does not

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make Hampton a seasoned veteran, it does
not diminish his judgment. If anything, his
familiarity with drug activity in the area
bolsters his ability to make inferences from
his other observations.

Likewise, the agent’s observations that
the driver of the vehicle seemed to be
drifting within his lane due to his awareness
of the trailing patrol car and the car’s
registration to a non-Hispanic Female in
Dallas might not, without more, reasonably
warrant suspicion of criminal activity. But
when viewed with the agent’s other, more
particularized suspicions about the vehicle
and its driver, the more subtle observations
add to the reasonableness of the agent’s
suspicion. Viewed in the light most
favorable to the government, the stop was
justified.

The district court correctly concluded
that under the totality of the circumstances,
Agent Hampton had reasonable suspicion to
stop Ceniceros. The Lumina was traveling
from the direction of the border, did not have
a park sticker on its windshield and was not
recognized by Hampton. Most important,
the vehicle, its driver, and the car’s route fit
the description of a BOLO Hampton
received that day. When he followed the car,
he observed that the car drifted within its
lane and appeared heavily-laden in the trunk.
All these factors provided articulable facts
that indicated illegal activity might be afoot.
Under these facts, we cannot say that
reasonable suspicion was lacking.

IV.
For the foregoing reasons, the judgment
of conviction is AFFIRMED.

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