Revised February 5, 1999
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50641
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFREDO MORENO-CHAPARRO,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
September 30, 1998
Before POLITZ, Chief Judge, WISDOM and DUHÉ, Circuit Judges.
POLITZ, Chief Judge:
Alfredo Moreno-Chaparro appeals the district court’s denial of his motion to
suppress evidence allegedly obtained as the result of an unconstitutional stop by a
United States Border Patrol agent. For the reasons assigned we conclude and hold
that the stop at issue violated fourth amendment guarantees.
BACKGROUND
On March 5, 1997 at approximately 2:00 p.m., United States Border Patrol
Agent Alfred Hollenbeck was observing activity on Highway 67 from a temporarily
closed immigration checkpoint. The checkpoint involved is located about five
miles south of Marfa, Texas and approximately 60 miles north of Presidio, Texas
and the Mexican border. Traffic included a black Chevrolet pickup truck traveling
northbound.1 As the truck passed through the checkpoint the male driver, later
identified as Moreno, slowed and appeared surprised to see the patrol car alongside
the checkpoint. Hollenbeck testified that when a checkpoint is closed, drivers
typically “just go about their business and they don’t think twice about stopping or
looking or staring.” Upon cross examination, however, Agent Hollenbeck
candidly conceded that it was not unusual for a driver to decelerate and glance at
the checkpoint when closed.
When Moreno passed though the checkpoint Hollenbeck could not determine
that he was Hispanic. Although a Mexican, Moreno has light skin, blonde to light
brown hair, and green eyes. Hollenbeck decided to conduct an immigration check
because, he says, he suspected that Moreno was an illegal alien and possibly was
1
Agent Hollenbeck testified that he believed that the highway was particularly
vulnerable to smugglers during shift changes because of reduced manpower. A shift
change usually occurs at 2:00 p.m.
2
harboring other illegal aliens in the truck. Prior to stopping Moreno, Hollenbeck
ran a license check on the vehicle and learned that it was registered to Isma Moreno
of El Paso, Texas.
After the stop, Moreno gave Hollenbeck his resident alien card and explained
that he did not speak English. In their Spanish exchange, Hollenbeck asked
Moreno about the origin of his trip, his destination, and whether the truck belonged
to him. Moreno said that the truck belonged to his sister and explained that he was
returning from Mexico where he had been visiting relatives for the past two weeks.
Hollenbeck indicated that he was puzzled by this answer because Moreno did not
appear to have luggage.
Hollenbeck asked for consent to search the vehicle. He then noticed that the
truck was clean except for the undercarriage which was caked with mud. He
testified that mud is often used to mask new bolts and changes made to hide drugs.
Although a canine search did not result in an alert for the presence of drugs,
Hollenbeck directed Moreno to return the vehicle to the checkpoint for closer
inspection. After the mud was removed, Hollenbeck noticed new bolts supporting
the gas tank. The agent then secured permission to search the inside of the gas tank
and discovered therein a hidden compartment containing 185 pounds of marihuana.
3
ANALYSIS
In United States v. Brignoni-Ponce, the Supreme Court directed that
“officers on roving patrol may stop vehicles only if they are aware of specific
articulable facts, together with rational inferences from those facts, that reasonably
warrant suspicion that the vehicles contain aliens who may be illegally in the
country.”2 Several factors weigh into the determination whether a stop is justified. 3
No single factor is determinative; the totality of the particular circumstances must
govern the reasonableness of any stop by roving border patrol officers.
In the case at bar, the district court found that the following facts supplied
reasonable suspicion: (1) the agent’s experience; (2) the time of day; (3) the
particular type of vehicle; (4) the driver slowed down to look at the checkpoint and
seemed surprised to see an officer there; (5) the agent found that the driver
appeared extremely nervous; (6) the clean appearance of the vehicle’s exterior
coupled with the muddy appearance of the underside of the vehicle; and (7) the
driver did not appear to have luggage despite a two week visit with relatives in
2
422 U.S. 873, 884 (1975).
3
Factors to be considered include: (1) characteristics of the area in which the
vehicle is encountered; (2) unusual patterns of traffic on the particular road; (3) proximity
to the border; (4) information about recent illegal crossings in the area; (5) appearance of
the vehicle; (6) number and appearance of the passengers; (7) behavior of the driver; and
(8) behavior of the passengers. Brignoni-Ponce, 422 U.S. at 884-85.
4
Mexico. While we would agree that this collage of factors may be sufficient to
supply an officer with reasonable suspicion, we must perforce note that only the
first four were known by Agent Hollenbeck at the time of the stop. Obviously only
those factors known to the officer at the time of the stop can be considered when
determining whether the stop was reasonable.
A vital element of the Brignoni-Ponce test is whether the agent had reason
to believe that the vehicle in question had come from the border.4 It appears
manifest that Agent Hollenbeck did not have reasonable grounds to believe that
Moreno had crossed the border. Moreno was 60 miles north of the Mexican border,
driving a Chevrolet pickup truck with valid Texas license plates, and could have
been coming from nearby communities, including Presidio, which is a town
populated by several thousand residents. This factor alone is not controlling and
other factors must be given appropriate consideration in the determination whether
reasonable suspicion existed.
The government places heavy emphasis on Moreno’s “surprised” appearance
when he saw Agent Hollenbeck parked at the checkpoint. Although Hollenbeck
noted that most drivers do not look to see if an officer is parked at a closed
checkpoint, he testified that it was not unusual for them to do so. We cannot help
4
United States v. Orona-Sanchez, 648 F.2d 1039 (5th Cir. 1981).
5
but note that the government has variously relied on both sides of the factor, on
some occasions contending that it is suspicious for a person to look and on other
occasions insisting that it is suspicious not to look. We are persuaded that 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.5
To conclude otherwise “would put the officers in a classic ‘heads I win, tails you
lose’ position. The driver, of course, can only lose.”6 The government maintains
that in addition to looking over at the parked Border Patrol car, Moreno looked
surprised at seeing an agent parked at the checkpoint. We perceive little
significance in a driver looking surprised to see a Border Patrol agent parked at a
closed immigration checkpoint. More is needed to articulate the mandated
reasonable suspicion required for a stop by the Supreme Court’s teachings.
Prior to stopping Moreno, Agent Hollenbeck ran a license plate check and
discovered that the truck Moreno was driving was registered to a female resident
of Texas. The government insists that this was a factor contributing to reasonable
suspicion. Hollenbeck, however, testified to the obvious, i.e., that it is not unusual
5
United States v. Nichols, 142 F.3d 857 (5th Cir 1998); United States v.
Chavez-Villarreal, 3 F.3d 124 (5th Cir. 1993); United States v. Escamilla, 560 F.2d
1229 (5th Cir. 1977).
6
Escamilla, 560 F.2d at 1233.
6
for a man to drive a vehicle registered to a woman. Further, the type of vehicle was
not suspect. Although Agent Hollenbeck testified that the Border Patrol carefully
watches “Chevys in general,” it would be manifestly unreasonable to target every
Chevrolet pickup truck driven on Texas highways. The agent could not point to
anything suspicious about the truck. It contained no visible passengers, it had not
been modified in an obvious way, and it was not riding low to the ground as if it
were loaded down with people or contraband; it was neither particularly clean nor
particularly dirty. It was just an average pickup truck on a highway in Texas.
The government stresses that the time of day that Moreno passed though the
checkpoint added to the suspicion. Moreno drove past the checkpoint at
approximately two o’clock in the afternoon. The government contends that this
serendipitous time contributes to reasonable suspicion because it is the time of the
Border Patrol shift change. During the shift change, we are told, the roads are left
virtually unchecked and there accordingly is a particular vulnerability to smugglers
who are aware of the timing of the shift change. While we may empathize with the
Border Patrol’s concerns regarding increased exposure during times of reduced
manpower, we are not willing to sacrifice the constitutional protections of drivers
to lessen the perceived adverse impact resulting from the decision of the Border
Patrol to change shifts at the same time everyday.
7
In summary, we find, conclude, and hold that each factor presented by the
government is non-remarkable and unsuspicious. Taken together, and considered
in the context of the agent’s experience, the factors known to the agent at the time
of the stop of Moreno’s vehicle fall far short of providing the required reasonable
suspicion. “In the context of border area stops, the reasonableness requirement of
the Fourth Amendment demands something more than the broad and unlimited
discretion sought by the Government.”7
Moreno’s motion to suppress should have been sustained. We therefore
REVERSE the order of the district court denying the motion to suppress, grant said
motion, and REMAND for further proceedings consistent herewith.
7
Brignoni-Ponce, 422 U.S. at 882.
8