United States v. Chavez-Chavez

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 99-40072
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United States of America,
Plaintiff-Appellee,

v.

Jose de Jesus Chavez-Chavez,
Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
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February 22, 2000

Before REYNALDO G. GARZA, JONES, and EMILIO M. GARZA, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

FACTUAL AND PROCEDURAL HISTORY

On July 29, 1998, at approximately 8:00 in the morning, Border Patrol Agents Ron

Torralba, an agent with six years experience, and Neil Heideman, an agent with three and a half

years experience, stopped a van traveling on Highway 286 because they suspected that it

contained illegal aliens. In fact, the van contained eight undocumented immigrants from

Guatemala. Five were sitting in the van’s front and rear seats, and three were not visible to

anyone outside of the van. Chavez-Chavez (Chavez) was the driver of the van.

Highway 77 is a major highway leading from Brownsville, Texas to Corpus Christi, Texas.
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Highway 286 is an alternate highway leading to Corpus Christi from the south. Alien smugglers

are known to use Highway 286 to circumvent the more heavily patrolled Highway 77. The local

Nueces County Sheriff1 occasionally requests the Border Patrol’s assistance with traffic stops on

Highway 286 involving suspected illegal aliens.

After following the van in question for a mile or two, the agents stopped it on Highway

286 roughly 150 to 160 miles from the Texas-Mexico border and about 50 miles north from the

Sarita Border Patrol checkpoint, which is on Highway 77. Agent Heideman testified that it is

common for illegal aliens to get out of their vehicles before the Sarita checkpoint, walk around it

through the surrounding brush country, and meet their ride on the other side. The agents also

testified, however, that they had received no specific information that the van was carrying

undocumented immigrants or that it had recently come from the border.

Agent Heideman testified that 8:00 a.m. is a common time for vehicles transporting illegal

aliens to pass through that particular area of Highway 286. He testified that as the van drove past

the parked Border Patrol automobile, the driver of the van glanced back at the agents, and

continued to look back at the agents several times as they followed the van. Agent Heideman

testified that the passengers appeared “very rigid” and that they looked straight forward and

“appeared to be making an effort not to look anywhere else.” Agent Torralba testified that the

passengers sat straight and that the four adults on the rear bench seemed uncomfortable, which

the agents considered typical of smuggled illegal aliens. However, the van was not speeding, and

the passengers did not attempt to hide when the van passed the patrol car.

The agents testified that the van’s suspension appeared rigid, which indicated that it had

1
Corpus Christi is located in Nueces County Texas.
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been modified so that it would not appear low or weighted down. They testified that such a

modified suspension was common in vehicles used to transport illegal aliens. The agents further

testified that the passengers’ clothes and the passengers themselves appeared very dirty and

unkept.2

On October 1, 1998, after conducting a suppression hearing, the district court denied

Chavez’s motion to suppress evidence on the grounds that the initial stop had been supported by

reasonable suspicion and did not violate the Fourth Amendment. The next day Chavez pled guilty

to transporting illegal aliens in violation of 8 U.S.C. § 1324 (a)(1)(A)(ii) and (v)(II), but reserved

the right to appeal the denial of his motion to suppress. The district court sentenced Chavez to

fifteen months’ imprisonment and a three-year supervised release term. This appeal followed.

DISCUSSION

Appellate courts review a district court’s ruling that a stop was reasonable de novo. See

United States v. Morales, 191 F.3d 602, 603 (5th Cir. 1999). Suppression hearing evidence is

viewed in the light most favorable to the prevailing party. See id.

To temporarily detain a vehicle for investigatory purposes, a Border Patrol agent on

roving patrol must be aware of “specific articulable facts” together with rational inferences from

those facts, that warrant a reasonable suspicion that the vehicle is involved in illegal activities,

such as transporting undocumented immigrants. See United States v. Inocencio, 40 F.3d 716,

722 (5th Cir. 1984); see also United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975). When

2
The testimony of passengers in the van would later reveal that the illegal aliens’ unclean
appearance was the result of just having spent eight or nine days living in the brush, without
bathing or changing clothes, waiting for their transportation to destinations further north.
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deciding whether to make an investigatory stop, Border Patrol agents may consider several

relevant factors, including: (1) characteristics of the area where the vehicle is encountered; (2)

proximity to the border; (3) the usual traffic pattern on the road; (4) previous experience with

criminal activity; (5) information about recent criminal activity in the area; (6) the driver’s

behavior; (7) the appearance of the vehicle, its type and whether it appears loaded; and (8) the

number, appearance and behavior of the passengers. United States v. Morales, 191 F.3d 602, 604

(5th Cir. 1999); Inocencio, 40 F.3d at 722. No single factor is determinative; rather, this Court

examines each case based on “the totality of the circumstances known to the agent, and the

agent’s experience in evaluating such circumstances.” Inocencio, 40 F.3d at 722 (internal

quotation and citation omitted).

Viewed in the light most favorable to the government, the totality of the circumstances

supports a reasonable suspicion that the van in question was involved in alien smuggling. First,

we consider characteristics of the area where the vehicle was encountered. Border Patrol Agents

Torralba and Heideman, each with several years experience, were well aware that smugglers

frequently use Highway 286 to circumvent the Sarita checkpoint and the more heavily patrolled

Highway 77. Highway 286 is also legitimately used, however, by thousands of people who live

in South Texas and travel to Corpus Christi, and the fact that a road has been used by alien

smugglers is alone insufficient to justify a stop. See United States v. Diaz, 977 F.2d 163, 165 (5th

Cir. 1992). Yet, that smugglers regularly use the road is relevant to the totality of the

circumstances evaluation, especially given that local law enforcement officials have, on numerous

occasions, requested assistance from Border Patrol Agents Torralba and Heideman in this area in

pursuing suspected illegal aliens fleeing into the brush after a traffic stop.
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Second, we examine the stop’s proximity to the border. The stop occurred 150 to 160

miles north of the border, a substantial distance from the border. See Inocencio, 40 F.3d at 722

n.7. Thus, the proximity element is not present in this case. However, the author of Inocencio

and the instant opinion did not contemplate establishing that any stop more than 50 miles from the

border was illegal. In Brignoni-Ponce, 422 U.S. 873, the Supreme Court did not impose any

such requirement. This court has noted that “if the agents do not base the stop on the vehicle’s

proximity to the border, Brignoni-Ponce may still be satisfied if other articulable facts warrant

reasonable suspicion.” Inocencio, 40 F.3d at 722 (internal citations omitted). That the proximity

factor is not satisfied is alone not determinative. See Morales, 191 F.3d at 605 (holding that a

stop by the Border Patrol was reasonable even though it occurred 150 miles from the border

because other factors, when considered in their totality, justified reasonable suspicion to stop).

Third, we turn our attention to the usual traffic patterns on Highway 286. The agents

testified that illegal aliens often travel north on Highway 286 at 8:00 a.m., the approximate time

of the stop at issue. Traveling on Highway 286 at 8:00 in the morning by itself is not unusual,

however, as many law-abiding people do so daily. A factual condition that is consistent with alien

smuggling does not provide reasonable suspicion if that condition also occurs even more

frequently in the law-abiding public. See United States v. Jones, 149 F.3d 364, 369 (5th Cir.

1998). However, in combination with the dirty and unkept appearance of the passengers, the time

of travel takes on greater significance. See United States v. Garcia, 732 F.2d 1221, 1224 (5th Cir.

1984) (“the lateness of the hour substantially reduces the likelihood that those individuals were

returning from outdoor work.”). The Border Patrol agents could have reasonably inferred from

the early morning time of the traffic stop taken with the unclean appearance of the passengers in
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the van, at least their appearance from the mid-chest up, that the passengers may have recently

spent some time in the area’s surrounding wilderness, as illegal aliens in that area often do.

Fourth, we evaluate the agents’ previous knowledge and experience in dealing with

criminal activity. “In all situations the officer is entitled to assess the facts in light of his

experience in detecting illegal entry [,] . . . smuggling, or other criminal activity.” Morales, 191

F.3d at 604 (quoting Brignoni-Ponce, 422 U.S. at 885). Mr. Torralba had been a Border Patrol

Agent for six years, all of which had been spent patrolling this area of Highway 286. Mr.

Heideman had been a Border Patrol Agent for three and a half years, fourteen months of which

had been spent patrolling this area of Highway 286. During their time as agents, they had

developed substantial experience in detaining illegal aliens on this stretch of highway. Such

experience is of considerable importance in evaluating the totality of the circumstances in the

instant case.

Fifth, we discuss relevant information about recent criminal activity in the area. The

record does not reflect that the agents had any specific information connecting the van in question

to recent criminal activity in this area. However, local law enforcement officials have, on a

regular basis, requested assistance from Border Patrol Agents Torralba and Heideman in this area

in pursuing suspected illegal aliens fleeing into the brush after a traffic stop.

Sixth, we consider the driver’s behavior. The agents testified that Chavez, the driver,

glanced back at them as the van drove past the parked Border Patrol vehicle. They testified that

as they followed the van, the driver looked back at them in his side-view mirror and that Chavez

appeared nervous, frequently looking back at them. Yet, the agents did not testify that Chavez

was speeding, driving erratically, trying to evade the officers or violating any state traffic laws.
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Whether a driver looks at an officer or not should not be accorded much weight. See United

States v. Moreno-Chapparro, 180 F.3d 629, 632 (“we are persuaded in the ordinary case,

whether a driver looks at an officer or fails to look at an officer, taken alone or in combination

with other factors, should be accorded little weight.”).

Seventh, we assess the appearance of the vehicle. It is the agents’ experience that

smugglers often carry illegal aliens in vans like the one stopped. See Morales, 191 F.3d at 604

(noting that Border Patrol agents usually found illegal aliens hidden in the back of a van or pickup

truck). The agents testified that the van appeared to have a modified suspension to prevent it

from sagging, which is common in vehicles used to transport illegal aliens. The rigid suspension

would prevent the van from appearing weighted down even if it were carrying a heavy load of

people or contraband. See id. (finding reasonable suspicion where a pickup truck appeared to be

carrying a heavy load).

Finally, we examine the number, appearance and behavior of the passengers. Most

suspiciously, the five adult passengers visible to the agents appeared dirty and disheveled, which

has been considered reasonably suspicious in prior cases. See Garcia, 732 F.2d at 1224 (“[t]his

Court . . . has relied upon an agent’s observation . . . that the occupants of the vehicle were

unwashed and unkept.”). As discussed previously, the suspicion raised by the dirty appearance of

the passengers is heightened given that the stop occurred at 8:00, decreasing the likelihood that

they were returning from a day of outdoor labor. The agents also testified that the four

passengers on the rear bench appeared rigid and uncomfortable, which the agents considered

typical of smuggled aliens. However, this behavior might also be typical of any adults crowded

on the rear bench, and does not carry as much weight as the dirty appearance of the occupants of
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the van in combination with the morning hour of the stop.

The agents identified specific articulable facts to support their reasonable suspicion for the

stop, most significantly the characteristics of the area of the stop, including the proximity to the

Sarita checkpoint, the rigid suspension of the vehicle, the type of vehicle, the dirty appearance of

the passengers, and the time of the stop. When viewed in the light most favorable to the

government and in the context of the agents’ previous knowledge and experience with alien

smuggling cases in the area, these particular facts and inferences rationally drawn from them

reasonably led the agents to suspect Chavez was transporting illegal aliens in his van.

CONCLUSION

Accordingly, this Court AFFIRMS the district court’s denial of Chavez’s motion to

suppress evidence on the grounds that the initial stop had been supported by reasonable suspicion

and did not violate the Fourth Amendment.