UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 97-50629
UNITED STATES OF AMERICA,
Plaintiff-Appellee
VERSUS
ALLISON HASKELL JONES,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
July 31, 1998
Before HIGGINBOTHAM, PARKER and DENNIS, Circuit Judges.
PARKER, Circuit Judge:
I.
FACTS & PROCEDURAL HISTORY
Allison Haskell Jones appeals his conviction for possession
with intent to distribute marijuana in violation of 21 U.S.C. § 841
(a)(1). Appellant was stopped by a border patrol agent on
suspicion of smuggling aliens, while driving northbound on Texas
state Highway 118 some eighty (80) miles north of the Texas-Mexico
border. In the district court, Jones made a motion to suppress the
evidence from the search, which was denied, whereupon Jones pleaded
guilty, reserving his right to appeal.
1
The facts relevant to Jones’s motion to suppress are these.
On March 8, 1997, a little after 7:00 a.m., Jones was driving
northbound on Highway 118 in a blue Toyota 4 Runner,1 about five
miles south of Alpine, Texas, approximately four miles north of a
fixed border checkpoint, and some eighty (80) miles north of the
Texas-Mexico border. His lights were on, though it was after
sunrise. United States Border Patrol Agent Luis Barrera was
proceeding southbound on Highway 118 when he noticed Jones’s
oncoming vehicle. Barrera pulled onto the shoulder to observe
Jones as he passed. Barrera noticed that the 4 Runner was covered
in mud, which Barrera thought was fresh (not dry), even though
Barrera was aware of no rainfall in the area in the previous
several weeks. Barrera thought Jones looked like a tourist and did
not recognize him from the area. Barrera also saw a blue tarpaulin
draped over something in the rear cargo area of the 4 Runner.
Barrera decided to follow Jones. Barrera pulled in behind
Jones at between fifty-five (55) and sixty-five (65) miles an hour.
Barrera kept his cruiser within three car lengths of Jones and at
one point got close enough to read the license plate, i.e., he was
tail-gating Jones.2 A license check revealed that the vehicle was
registered to one Allison Jones of Garland, Texas. Jones was
1
The Toyota 4 Runner is a sport-utility vehicle with a removable rear
seat and a totally enclosed cargo area.
2
At the suppression hearing, Barrera testified that a safe following
distance at those speeds would be five to six car lengths.
2
continually glancing back at Barrera in the rear view mirror, and
a couple of times let the 4 Runner slip off the pavement. Barrera
noticed that the 4 Runner’s right rear tail light was inoperative.
Barrera finally pulled Jones over and called his partner,
Agent Scott Roddy, for back-up. When Agent Roddy arrived, Barrera
approached the 4 Runner with a dog, which alerted to the vehicle
immediately. Barrera asked Jones what his citizenship was and for
him to produce his driver’s license. Jones told Barrera that he
was a United States citizen and handed Barrera his driver’s
license. Barrera could smell the odor of marijuana and deodorizer.
Jones was visibly nervous. Agent Roddy asked Jones to exit the 4
Runner. Barrera put the dog inside the 4 Runner, where he alerted
to contraband in the rear cargo area. Barrera looked through the
rear side glass of the 4 Runner and saw flour or seed sacks.
Barrera then raised the tarp and discovered 222.46 pounds of
marijuana.
II.
LAW & ANALYSIS
A.
Standard of Review
“A district court’s purely factual findings are reviewed under
the clearly erroneous standard. The evidence presented at a pre-
trial hearing on a motion to suppress is viewed in the light most
favorable to the prevailing party. The conclusions of law derived
3
from a district court’s findings of fact, such as whether a
reasonable suspicion existed to stop a vehicle, are reviewed de
novo.” United States v. Inocencio, 40 F.3d 716, 721 (5th Cir.
1994), citing United States v. Cardona, 955 F.2d 976, 977 (5th Cir.
1992).
The question for this Court is whether, viewing the evidence
in the light most favorable to the government, the district court
erred by holding that Agent Barrera properly formed a reasonable
suspicion of illegal activity upon observing a Toyota 4 Runner with
its lights on at 7 a.m., covered in fresh mud, with an inoperative
tail light and a blue tarp draped over something in the rear cargo
area traveling northbound on Highway 118 (which comes from Big Bend
National Park just on this side of the border), five miles south of
Alpine, Texas, and approximately eighty (80) miles north of the
Texas-Mexico border, driven by a middle-aged, tourist-looking,
Caucasian male who had probably just come through the border
checkpoint around shift change and who continually glanced back in
his rear-view mirror when Agent Barrera decided to follow him? We
conclude that the district court did err and therefore reverse
Jones’s conviction.
B.
Roving Border Patrol Stops Under the Fourth Amendment
Warrantless investigatory stops by border patrol agents which
are not conducted at the border or its functional equivalent are
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unconstitutional unless supported by a reasonable suspicion of
illegal activity. Inocencio, supra at 722. “Any number of factors
may be taken into account in deciding whether there is reasonable
suspicion to stop a car in the border area.” United States v.
Brignoni-Ponce, 422 U.S. 873, 884, 95 S. Ct. 2574, 2582, 45 L. Ed.
2d 607 (1975). Those factors include: (1) the characteristics of
the area in which a vehicle is encountered; (2) proximity to the
border; (3) the usual patterns of traffic on the particular road;
(4) previous experience with alien traffic; (5) information about
recent illegal border crossings in the area; (6) the driver’s
behavior, e.g., erratic driving or obvious attempts to evade
officers; (7) aspects of the vehicle itself, e.g., suitability of
the design for concealment and transport of aliens; (8) appearance
of the vehicle, e.g., appears heavily loaded; (9) vehicle has an
extraordinary number of passengers; (10) persons in the vehicle are
observed attempting to hide; (11) appearance of the driver or
passengers, e.g., certain aspects of dress and haircut, may
indicate that the driver or passenger is from Mexico. Brignoni-
Ponce, 422 U.S. at 884-885, 95 S. Ct. at 2582 (citing cases).
Also, “[t]his Court considers the fact that a vehicle may have
recently crossed the border as a vital element in making an
investigatory stop.” Inocencio, 40 F.3d at 722, n. 6, citing
United States v. Melendez-Gonzalez, 727 F.2d 407, 411 (5th Cir.
1984). “Reasonable suspicion, however, is not limited to an
5
analysis of any one factor.” Id. at 722. Rather, a finding of
reasonable suspicion must be based on the “totality of the
circumstances known to the agent and the agent’s experience in
evaluating such circumstances”, United States v. Castenada, 951
F.2d 44, 47 (5th Cir. 1992), and “[i]n all situations the [agent]
is entitled to assess the facts in light of his experience in
detecting illegal entry and smuggling.” Brignoni-Ponce, 422 U.S. at
885, 95 S. Ct. at 2582, citing Terry v. Ohio, 392 U.S. 1, 27, 88 S.
Ct. 1868, 1883, 20 L. Ed. 2d 889 (1968).
C.
Proximity to the Border
In cases of investigatory stops based on suspicion of illegal
alien smuggling, “we have at times focused our inquiry initially on
the question of whether the arresting agents could reasonably
conclude a particular vehicle originated its journey at the
border.” Cardona, 955 F.2d at 980. The further the stop is
conducted from the border, the less likely it is that the vehicle
originated its journey at the border. United States v. Melendez-
Gonzalez, 727 F.2d 407, 411 (5th Cir. 1984)(“When the stop occurs
a substantial distance from the border, we have found this element
missing”). Our cases reveal no bright line, yet a car traveling
more than fifty (50) miles from the border is usually viewed as
being too far from the border to support an inference that it
originated its journey there. See Inocencio, 40 F.3d at 722 n. 6.
6
Perhaps of more importance to this case, is the combination of
distance from the border and the presence of several towns and a
heavily traveled national park between the point where Jones was
stopped and the border. See Melendez-Gonzalez, 727 F.2d at 411
(noting that, once a vehicle is a substantial distance from the
border and there are towns between the location of the stop and the
border, some independent reason must exist for the border patrol
agent to conclude that the vehicle originated its journey at the
border rather than at one of those towns).
This factor is totally missing from this case. Jones was too
far from the border to support an inference that his journey
originated at the border. Furthermore, on Highway 118, between the
point where Barrera first observed Jones and the border, lies Big
Bend National Park and the settlements of Study Butte and
Terlingua. It was just as likely that Jones left before sunrise
(hence the driving with his lights on) from one of those other
locations on Highway 118 as it is that he started from the border.
The only independent evidence which might arguably indicate that
Jones was more likely to have started at the border is the presence
of “fresh” mud on Jones’ 4 Runner.
Viewing the evidence in the light most favorable to the
government (the prevailing party) as we must, we accept the
district court’s finding that Jones’s 4 Runner had a noticeable
quantity of fresh mud on it. Moreover, this Court has no reason to
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doubt that Agent Barrera sincerely suspected that the mud on the
4 Runner came from a possible crossing of the Rio Grande, because
he was aware of no rainfall in Brewster County in the previous two
to three weeks. The question is whether it was reasonable for
Agent Barrera to suspect that. We conclude that it was not.
There are far too many places between Alpine, Texas, and the
Texas-Mexico border for a vehicle to pick up fresh mud virtually
any time of the year. The testimony at the suppression hearing
demonstrates that there are numerous ranch roads in the area that
cross spring-fed creeks that flow year-round. Bruce Bourbon, a
park ranger at Big Bend, who was qualified to the court as an
expert on local geology, testified that in March of 1997 there were
many springs flowing in Big Bend, and that he knew of several park
roads that had been muddy. Mike Baskette, who kept the rainfall
records for Terlingua, testified that many of the local roads cross
Terlingua Creek, which always has some water in it. He also keeps
a store at Study Butte and sees much of the traffic that departs
from Big Bend. He testified that most of the people down there
have mud on their cars. Don Parkinson operates a ranch, rock shop,
and tourist center in Brewster County about 18 miles south of
Alpine, and as a camping guide is very familiar with the state of
the roads in Brewster County. He testified that there are many
tourists in Brewster County and most of them have muddy cars.
Indeed, the very road Parkinson lives on, which intersects with
Highway 118 just south of the border checkpoint, is crossed by a
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spring fed creek. Finally, rainfall records indicate that it had
rained .10 inches on February 25 and .03 inches on March 1 at
Alpine, Texas. In addition, rainfall had been heavy throughout the
county during the month of February, 1997, with Alpine receiving
1.98 inches and Study Butte/Terlingua receiving .89 inches.
This court is unwilling to accept the notion that Agent
Barrera was unaware of all the other places where Jones’s 4 Runner
might have picked up fresh mud between Alpine, Texas, and the
border. In short, there is simply nothing suspicious about a muddy
4 Runner traveling in an area where one should expect most vehicles
to have some mud on them.3 Therefore, it was not reasonable to
suspect that Jones’s 4 Runner originated its journey at the border.
This lack of origination at the border does not end the reasonable
suspicion inquiry, but without it “the facts offered by the
government to support a reasonable suspicion will be examined
charily.” Inocencio, 40 F.3d at 723, citing United States v.
Salazar-Martinez, 710 F.2d 1087, 1088 (5th Cir. 1983).
D.
Totality of the Circumstances
There are several factual conditions which caused Agent
3
We are naturally concerned that every distinguishing characteristic
and its exact opposite will both be considered indicators of suspicious
activity, creating a damned if you do, damned if you don’t situation for
citizens traveling near the border. A holding that too much dirt or mud
is suspicious, combined with this Court’s recent holding that not enough
dirt or mud is suspicious would illustrate the point perfectly. See United
States v. Nichols, No. 97-40843, slip op., 3524, 3539.
9
Barrera to suspect Jones was smuggling illegal aliens. First,
Jones was driving at 7:00 a.m., after sunrise, with his lights on.
The fact that Jones was driving with his lights on may indicate
that he crossed the border or picked up illegal aliens on this side
of the border before dawn. However, the fact that Jones was
driving northbound on Highway 118 with his lights on at 7:00 a.m.
five miles south of Alpine, Texas, is just as consistent with him
being a tourist who left Big Bend National Park before dawn.
Indeed, the latter possibility is far more likely, since, as noted
by Agent Barrera, Jones looked like a tourist, and a license check
revealed that he was from Garland, Texas. Second, Jones’s vehicle
was covered in fresh mud. Once again, as previously noted, it is
far more likely that the mud came from one of the numerous other
sources of fresh mud between Alpine, Texas, and the Texas-Mexico
border, as opposed to the Rio Grande.
Third, Jones looked like a tourist, and Barrera had it on good
authority that smugglers had recently engaged in the practice of
using tourists or tourist-looking persons to bootleg illegal
aliens, because they looked less suspicious. In other words, what
was suspicious about Jones is that he looked like an unsuspicious
tourist. A factual condition which is consistent with the
smuggling of illegal aliens in a particular area, will not
predicate reasonable suspicion, if that factual condition occurs
even more frequently among the law abiding public in the area. For
example, the fact that one is of Mexican national origin does not
10
create reasonable suspicion that one is an illegal alien, since, in
border areas, there are far more legal citizens than illegal aliens
of Mexican national origin. Brignoni-Ponce, 422 U.S. at 886-887,
95 S. Ct. at 2583. Something more must exist to set one person of
Mexican national origin apart from all others of Mexican national
origin which indicates that one is in the country illegally.
Likewise, the fact that Jones looked like a tourist does not give
rise to an inference of illegal activity, especially when the area
is heavily traveled by tourists and is near a popular tourist
destination, unless we are willing to say that tourists are
involved in illegal activity often enough that just looking like a
tourist is cause for suspicion. We are not so inclined.
Fourth, Jones had a blue tarp draped over something, which
Agent Barrera suspected Jones might be using to conceal illegal
aliens. One does wonder what the purpose of the blue tarp would be
inside a fully enclosed sport-utility vehicle. Indeed, it would be
a useful accessory when attempting to hide illegal aliens.
However, it would also be useful to hide valuables from would-be
auto-burglars. More importantly, such a tarp is a common camping
accessory which can be found very often among the gear carried by
tourists at Big Bend.4 Given that Jones was not from the area, he
looked like a tourist and was headed away from Big Bend on the
4
Barnes, Baskette, Bourbon and Parkinson all testified that it was
not at all uncommon to see tarps of varying colors among the gear carried
by tourists at Big Bend.
11
highway most often used to access the park, the presence of the
tarp would seem more indicative of a tourist coming from Big Bend
than of an illegal alien smuggler. Indeed, nothing in Agent
Barrera’s own experience points to the contrary.5 Therefore, the
presence of the tarp in the back of Jones’s 4 Runner was not cause
to suspect that he was engaged in illegal activity.
Fifth, Agent Barrera noticed that Jones’s right-rear brake
light was inoperative, which indicated to him that the wiring might
have been damaged by someone hidden in the cargo area or by someone
hiding contraband within the side wall of the 4 Runner. Although
Agent Barrera himself has never apprehended a drug smuggler or
alien smuggler where the wiring harness to the tail lights was
damaged by the smuggler’s attempt to conceal his cargo, it is at
least possible that such damage might occur as Agent Barrera
suspected. Nevertheless, an inoperative tail light alone will not
support reasonable suspicion. In combination with other suspicious
circumstances, an inoperative tail light may provide corroborative
evidence of illegal activity. However, it remains to be seen
whether there are any other suspicious circumstances in this case,
in combination with which the inoperative tail light may have some
significance.
Sixth, Jones came through the checkpoint just before 7:00 a.m.
5
Agent Barrera testified that only once had he stopped someone using
a tarp to conceal contraband. In that case the tarp was over the bed of
a pickup, where the cargo area is not otherwise enclosed.
12
Barrera testified that he had been informed by the DEA that
smugglers had been engaging in the practice of coming through the
border checkpoint south of Alpine at around the time of shift
change, 7:00 a.m. This coincidence caused Barrera to think that
Jones might be a smuggler who came through the checkpoint during
shift change so as to avoid detection. The time frame in which a
person passes a particular point in the road may indicate possible
illegal activity, if other objective facts support a conclusion
that persons passing a particular point at a particular time may be
involved in illegal activity. United States v. Cortez, 449 U.S.
411, 420-21, 101 S. Ct. 690, 696, 66 L. Ed. 2d 621 (1981). Barrera
testified that the DEA had informed the Border Patrol that
smugglers were coming through the checkpoint at shift change to
avoid detection. This factor does weigh in favor of reasonable
suspicion. However, this Court has never held that the time of day
when a vehicle comes through a border checkpoint alone is a basis
for reasonable suspicion, nor will we go so far today.
Nevertheless, the fact that Jones came through the border
checkpoint south of Alpine, Texas around the time of shift change
should be viewed as part of the totality of the circumstances in
this case that may add up to reasonable suspicion.
Finally, as previously noted, the behavior of a driver may
support a reasonable suspicion. Brignoni-Ponce, 422 U.S. at 884-
885, 95 S. Ct. at 2582 (citing cases). Therefore, if the driver of
13
a vehicle appears nervous at being followed or is so preoccupied by
the presence of law enforcement as to allow his vehicle to drift
off the road or across the center line, his behavior may reinforce
the law enforcement officer’s suspicion. However, when the
officer’s actions are such that any driver, whether innocent or
guilty, would be preoccupied with his presence, then any inference
that might be drawn from the driver’s behavior is destroyed. In
this case, the fact that Jones continually glanced back at Agent
Barrera in his rear-view mirror and subsequently drifted off the
road-way does not give rise to reasonable suspicion. It was far
more likely that Jones kept looking at Agent Barrera in his rear-
view mirror because Agent Barrera was tailgating Jones, and Jones
drifted off the pavement because he was looking in his rear-view
mirror instead of where he was going. It should have occurred to
Agent Barrera that Jones’s behavior was the natural, innocent-man’s
response to being tailgated and not so much the apprehension of the
guilty at being caught.
The totality of the circumstances does not support a
reasonable suspicion of illegal activity. The fact that Jones, who
was from Garland, Texas, and who Agent Barrera described as looking
like a tourist, was driving northbound on Highway 118 approximately
eighty (80) miles north of the Texas-Mexico border at 7:00 a.m.,
after sunrise, with his lights on in a Toyota 4 Runner with fresh
mud on it with a blue tarp over something in the rear cargo area is
far more consistent with Jones being a tourist coming from Big Bend
14
National Park than an alien smuggler or drug smuggler who crossed
the Rio Grande before dawn that morning. The inoperative tail
light and time period when Jones came through the checkpoint south
of Alpine do not alter the inescapable conclusion that Agent
Barrera lacked reasonable suspicion to make an investigatory
immigration stop. Therefore, we must reverse Jones’s conviction.
REVERSED and REMANDED for further proceedings consistent with this
opinion.
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