REVISED October 27, 2009
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
October 26, 2009
No. 08-40803
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
CIPRIANO RANGEL-PORTILLO,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before KING, DAVIS, and BENAVIDES, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
Defendant-appellant Cipriano Rangel-Portillo appeals his conditional plea
of guilty on the grounds that the district court erred in denying his motion to
suppress evidence obtained as the result of an unconstitutional stop by a United
States Border Patrol agent. We find the district court erred in denying the
defendant-appellant’s motion to suppress, and accordingly, we vacate and
remand.
No. 08-40803
I.
This case concerns the constitutionality of a Border Patrol stop near the
Rio Grande City Wal-Mart store, just 500 yards from the Texas/Mexico border
in Starr County, Texas. Based on his experience working along the border,1
U.S. Border Patrol Agent Victor Soliz testified at the evidentiary hearing that
the area around the Rio Grande City Wal-Mart store in Starr County is well-
known for drug smuggling due to its close proximity to the border. Soliz also
testified that the Wal-Mart parking lot was well-known as an area where
illegal aliens were often smuggled into the United States from the Rio Grande
River.
At approximately 10 a.m. on the morning of November 9, 2007, Soliz
passed the Wal-Mart parking lot and observed two vehicles exiting the
parking lot onto Highway 83. Because Soliz felt the passengers looked
suspicious, he made a U-turn to get a better look at the two vehicles. Soliz
recalled that one vehicle was a white pickup, and the other vehicle, a Ford
Explorer, followed behind the pickup.
As the Explorer passed Soliz’s patrol unit, Soliz made several
observations about the driver and the three passengers. Soliz first noticed
that the driver initially looked straight ahead, but when Soliz’s patrol unit
approached the Explorer, Soliz noticed that the driver looked at him and
made eye contact. In contrast to the driver, Soliz observed that the three
backseat passengers avoided eye contact, were “stone-faced,” and looked
straight forward. According to Soliz, “the passengers didn’t look at [him]
1
Soliz, at the time that he offered this testimony, was a six-year veteran of the United
States Border Patrol in Starr County, Texas. In his six years with the Border Patrol, he has
arrested over thirty individuals charged with illegally transporting undocumented workers.
2
No. 08-40803
enough and the driver looked at [him] too much.” He further testified that
the three backseat passengers were all wearing their shoulder seatbelts.
Soliz followed the Explorer for a couple more miles, noting that the
backseat passengers never once conversed with each other and were sweating
“pretty bad.” Soliz also observed that the windows were rolled up and the
passengers appeared “very stiff.” Because the windows of the Explorer were
not tinted, and because Soliz’s border patrol unit rides higher than normal
street vehicles, Soliz and his partner could see clearly into the backseat of the
Explorer. Soliz noted that the floorboards of the Explorer were devoid of any
Wal-Mart shopping bags.
Based on the aforementioned reasons, Soliz decided to stop the Explorer
and conduct an immigration check. The driver of the vehicle, Rangel-Portillo,
acceded to the stop without incident. Upon stopping the vehicle, Soliz
discovered that all three passengers in the backseat were illegally in the
United States.
As a result of the stop conducted on November 9, 2007, Rangel-Portillo
was charged with one count for conspiracy to unlawfully transport
undocumented aliens and two counts for unlawfully transporting
undocumented aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii),
(a)(1)(A)(v)(I), (a)(1)(A)(v)(II), and (a)(1)(B)(i). He subsequently filed a pretrial
motion to suppress the evidence that the agents obtained as a consequence of
his detention. He argued that the agents lacked reasonable suspicion to stop
his vehicle and that the evidence that they recovered as a result of the stop
therefore was inadmissible. The Government filed a response, and the
district court held an evidentiary hearing on the motion to suppress.
The district court denied Rangel-Portillo’s motion on its merits. In so
ruling, the court relied on the following factors to determine that Soliz had
reasonable suspicion to stop the defendant’s vehicle: (1) the proximity of the
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No. 08-40803
stop to the border; (2) the fact that Wal-Mart is frequently used as a staging
area for alien smuggling and there had been numerous apprehensions of
aliens in the area over previous months; (3) the fact that Soliz observed two
vehicles driving in tandem; (4) the fact that the passengers of the Explorer
failed to converse with one another and sat rigidly; (5) the absence of
shopping bags in the Explorer; (6) the fact that the passengers were sweaty;
(7) the fact that the rear passengers wore seat belts; and (8) the fact that the
backseat passengers made no eye contact with Soliz, while the driver made
repeated eye contact. The district court also denied the defendant’s motion
for reconsideration.
Rangel-Portillo entered a conditional plea of guilty to Count Two
(charging unlawful transportation of undocumented aliens) of the original
three-count indictment, pursuant to the terms of a written plea agreement.
He has now timely appealed the district court’s denial of his motion to
suppress.
II.
Rangel-Portillo argues on appeal that the district court erred when it
denied his motion to suppress. “In reviewing a district court’s denial of a
defendant’s motion to suppress, this court reviews factual findings, including
credibility choices, for clear error, while we review legal conclusions de novo.”
United States v. Santiago, 410 F.3d 193, 197 (5th Cir. 2005); see also United
States v. Rodriguez, 564 F.3d 735, 740 (5th Cir. 2009) (“The district court’s
overall finding that reasonable suspicion existed for the stop is a conclusion of
law that we review de novo.”). Thus, the question before this Court is
whether the district court was correct in determining that Soliz had
reasonable suspicion to stop the defendant-appellant’s vehicle.
“To temporarily detain a vehicle for investigatory purposes, a Border
Patrol agent on roving patrol must be aware of ‘specific articulable facts’
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No. 08-40803
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.” United States v. Chavez-Chavez, 205 F.3d 145,
147 (5th Cir. 2000). In considering whether the agent had reasonable
suspicion to stop Rangel-Portillo’s vehicle, “[n]o single factor is determinative;
the totality of the particular circumstances known to the agents are examined
when evaluating the reasonableness of a roving border patrol stop.” United
States v. Hernandez, 477 F.3d 210, 213 (5th Cir. 2007). “Factors that may be
considered include: (1) the characteristics of the area in which the vehicle is
encountered; (2) the arresting agent’s previous experience with criminal
activity; (3) the area’s proximity to the border; (4) the usual traffic patterns
on the road; (5) information about recent illegal trafficking in aliens or
narcotics in the area; (6) the appearance of the vehicle; (7) the driver’s
behavior; and, (8) the passengers’ number, appearance and behavior.” Id. “No
single factor is dispositive, and each case must be examined based on the
totality of the circumstances known to the agents at the time of the stop and
their experience in evaluating such circumstances.” Rodriguez, 564 F.3d at
741.
We begin our analysis here by noting our appreciation of the difficult
task our U.S. Border Patrol agents face along our nation’s southern border.
Our decision herein and the reasoning to follow does nothing to detract from
the Court’s respect for the challenges our agents face in attempting to secure
our nation’s borders. However, in evaluating the reasonable suspicion behind
an agent’s detention of a specific individual’s vehicle, this Court must ensure
that the basic precepts of the Fourth Amendment have been met. In some
instances, the most efficacious of stops will not pass constitutional muster.
This is one of those instances.
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No. 08-40803
Upon review of the record, we conclude that the detention of Rangel-
Portillo’s vehicle lacked reasonable suspicion. While it is clear that the
proximity of the stop to the border (in this case a mere 500 yards) is afforded
great weight in this Court’s Fourth Amendment analysis, it is equally clear
that this factor alone does not constitute reasonable suspicion to stop and
search an individual’s vehicle. “Were we to rule otherwise, law enforcement
agents would be free to stop any vehicle on virtually any road anywhere near
the Texas-Mexico border.” United States v. Diaz, 977 F.2d 163, 165 (5th Cir.
1992). This Court has consistently found reasonable suspicion concerning
stops conducted near the border where other factors, in addition to the
proximity of the stop to the border, also supported a finding of reasonable
suspicion.2 In the present case, however, there are no such additional
factors.3
2
See, e.g., Hernandez, 477 F.3d at 214 (finding reasonable suspicion where stop was
conducted in close proximity to the border and the officer was acting off an anonymous tip);
United States v. Jaquinot, 258 F.3d 423, 427-429 (5th Cir. 2001) (finding reasonable suspicion
where “the precipitate events clearly indicated that the [defendant’s] truck had traveled
through an area very close to the border” and where the defendant, after noticing the officer,
exhibited very unusual driving patterns); United States v. Zapata-Ibarra, 212 F.3d 877, 882
(5th Cir. 2000) (finding reasonable suspicion where stop was conducted in close proximity to
the border and, in response to the officer’s approach, the defendant “decelerated considerably
and began “having a hard time keeping the vehicle within the lane itself.”) (internal quotations
omitted)); United States v. Villalobos, 161 F.3d 285, 288-290 (5th Cir. 1998) (finding reasonable
suspicion where stop was conducted in close proximity to border, officer observed “unusual
traffic patterns,” and where officer concluded the “truck was suspicious because it displayed
only temporary fifteen-day tags rather than a permanent license plate.”); United States v.
Nichols, 142 F.3d 857, 865-866 (5th Cir. 1998) (finding reasonable suspicion where stop
occurred near the border and the defendant “swerved off the road twice while the agents were
behind him.”).
3
The same applies with equal force to this Court’s consideration of whether the stop
was conducted in a “high crime area”— or in this instance, an area known for drug or illegal
alien smuggling. See United States v. Morales, 191 F.3d 602, 604-605 (5th Cir. 1999)
(concluding that while “[n]o single factor is determinative,” reasonable suspicion existed where
stop occurred in an area “notorious for alien smuggling and narcotics” and upon noticing the
officer, the defendant did a “doubletake” and began “weaving back and forth across the line.”).
Absent some other contributing factor, merely driving in an area “notorious for alien
smuggling,” alone, does not constitute reasonable suspicion. Id.
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No. 08-40803
The various supplemental factors the district court did cite to support
its conclusion fail to contribute sufficient reasonable suspicion to satisfy the
constitutional analysis. For instance, the district court noted that all of the
passengers in the vehicle wore seatbelts, sat rigidly, refrained from talking to
one another, and had no shopping bags. This Court, however, cannot infer
reasonable suspicion from these factors since there is no rational reason to
conclude that law-abiding citizens are less likely to wear their seatbelts or
exit a Wal-Mart parking lot sans shopping bags. See United States v.
Chavez-Chavez, 205 F.3d 145, 148 (5th Cir. 2000) (“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.”).
Thus, it is logical to conclude that none of these factors carry any
weight since law-abiding individuals are just as likely, if not more likely, to
wear their seatbelts, sit rigidly, and refrain from conversing with one another
as they exit a Wal-Mart parking lot. The Court also notes that during the
district court’s evidentiary hearing, Soliz testified that in his experience, law-
abiding individuals were just as likely to exit the Wal-Mart parking lot sans
shopping bags as individuals attempting to smuggle undocumented aliens.
Accordingly, none of these factors contribute the reasonable suspicion
necessary to pass constitutional muster.
At oral argument, counsel for the Government asked this Court to defer
to the agent’s expertise in recognizing these factors as reasonably suspicious
behavior. And while this Court certainly recognizes the deference due to an
agent’s expertise in patrolling the border, the Fourth Amendment requires
that this Court draw the line at reasonableness. This Court cannot, in good
conscience, conclude that the aforementioned law-abiding factors constitute
adequate reasonable suspicion to warrant such an intrusion on an
7
No. 08-40803
individual’s Fourth Amendment rights. Individuals do not shed their
constitutional rights with the click of a seatbelt.
Additionally, the district court supported its ruling by citing to the fact
that the driver made eye contact with the officer, but the other passengers did
not. We attach no significance to this factual finding since this Court has
previously held that “[w]hether a driver looks at an officer or not should not
be accorded much weight.” Chavez-Chavez, 205 F.3d at 149 (quoting United
States v. Moreno-Chaparro, 180 F.3d 629, 632 (5th Cir.1998) (“we are
persuaded in the ordinary case, [that] 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.”)). And since the driver’s eye contact with
the officer bears little to no weight on this Court’s reasonable suspicion
determination, it naturally follows that the passengers’ failure to make direct
eye contact with the agent should likewise be afforded little weight.
Furthermore, the fact that the appellant’s vehicle may have exited the
Wal-Mart parking lot at the same time as another vehicle adds no credible
support to the district court’s denial of the defendant’s motion. See United
States v. Melendez-Gonzalez, 727 F.2d 407, 412 (5th Cir. 1984) (holding that
the “observation of two cars in proximity on a sparsely traveled road does not
in itself justify a stop . . . [since a]bsent [such] connecting factors ... the
proximity of the automobiles might seem ambiguous.”) (internal quotations
omitted). Because this Court in Melendez-Gonzalez found that two cars
traveling in tandem on an isolated road was not alone indicative of
reasonable, articulable suspicion, it follows that two cars traveling in tandem
while exiting a Wal-Mart parking lot, a parking lot that thousands of others
cars exit daily, is similarly devoid of any constitutional significance.
Reasonable suspicion cannot result from the simple fact that two cars are
traveling on a roadway or exiting a parking lot, one in front of the other,
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No. 08-40803
unless there are other “connecting factors” to establish that their
simultaneous travel could rationally be considered suspicious. Id.
The final factual finding the district court cited in denying Rangel-
Portillo’s motion to suppress was the fact that the passengers in the backseat
were sweating. This factor, if considered in conjunction with other factors
that contribute to a reasonable suspicion finding–such as an anonymous tip,
erratic driving, or unlawful driving–could reasonably lead an officer to believe
there is sufficient suspicion to conduct a stop. In the present case, however,
the only other factor cited by the district court that contributes to reasonable
suspicion is the proximity to the border. And while driving unlawfully or
erratically while sweating might warrant reasonable suspicion, simply
sweating while driving near the Texas-Mexico border does not. This Court
cannot conclude that an agent has reasonable suspicion to conduct a stop
anytime an individual is sweating while riding in a vehicle in close proximity
to this nation’s southern border.
What is more indicative of a stop lacking in reasonable suspicion is not
what is found in the record, but rather in this case, it is what is missing from
the record. In the current case, there is no evidence that the officer observed
the defendant driving erratically in response to observing his presence; the
vehicle itself did not display any of the usual characteristics of a vehicle
transporting illegal aliens4; the time of the stop was not suspicious5; and there
4
See, e.g., United States v. Chavez-Chavez, 205 F.3d 145, 149 (5th Cir. 2000) (finding
reasonable suspicion where “[t]he 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.”); United States v. Morales, 191 F.3d 602, 607 (5th Cir. 1999) (finding reasonable
suspicion where, among many factors, the vehicle defendant was driving “appeared to be
heavily loaded.”).
5
See, e.g., Chavez-Chavez, 205 F.3d at 149 (finding the time of the stop contributed to
a finding of reasonable suspicion since “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.”).
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No. 08-40803
is no evidence to indicate that the officer received a tip from an anonymous
informant.6 The overwhelming absence of any of these additional factors–
factors that this Court has consistently held are rationally related to a finding
of reasonable suspicion– undermines the district court’s conclusion that the
officer had reasonable suspicion to stop Rangel-Portillo’s vehicle. See
Melendez-Gonzalez, 727 F.2d at 412 (noting the significance of “the absence in
this case of certain factors which have been considered persuasive in the past
in judging the validity of a stop by a roving patrol.”) (internal citations
omitted). In cases that “presen[t] no evidence of erratic driving . . . no
features on the defendant’s vehicle that would make it a likely mode of
transportation for illegal aliens . . . [and] no tips by informants,” this Court
has been quite reluctant to conclude a stop was based on reasonable
suspicion. Id. “The absence of these factors as well as the unpersuasive
nature of the factors that were offered by the Government leads us to
conclude that the stop in this case was illegal.”7 Id.
For the aforementioned reasons, we conclude that the agent’s stop of
the defendant-appellant’s vehicle was without reasonable suspicion, and
therefore, illegal. Accordingly, we find the district court’s denial of the
defendant-appellant’s motion to suppress to be in error. We vacate and
remand to the district court for further proceedings in accordance with this
decision.
6
See, e.g., United States v. Hernandez, 477 F.3d 210, 215 (5th Cir. 2007) (finding
reasonable suspicion where, in a notorious smuggling route, the agent received a tip that
“provided the color, number, and type of the vehicles” the agent stopped.).
7
We note that the factors contained in this paragraph are not intended to constitute
an exhaustive list of all factors that contribute to a reasonable suspicion finding. Likewise, it
is not our intention to imply that these individually listed factors are necessary prerequisites
to a court’s finding of reasonable suspicion. Instead, these factors are merely offered as
examples of the sorts of factors contained in cases that have previously survived constitutional
scrutiny. It is in comparison to these more comprehensive records that the inadequacies of the
instant record become readily apparent.
10