Opinion
No. SA-04-CR-345(1)-RF.
March 3, 2005
ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS
Before the Court is Defendant's Motion to Suppress, filed on August 3, 2004 (Docket No. 17), and an additional brief in support, filed on February 11, 2005. (Docket No. 36). The Court also has before it the Government's Response in Opposition to Defendant's Motion, filed on August 13, 2004 and the Government's Response to Defendant's additional brief, filed on February 23, 2005. The Court held a hearing on January 5, 2005, at which time it heard arguments and testimony regarding the motion to suppress.
Defendant seeks to suppress the evidence seized by the Government at the time of arrest. Defendant also seeks to strike the Government's response to his additional brief in support of suppression. After reviewing the arguments of the parties and having held a hearing on the matter, the Court is of the opinion that the Motion to Suppress (Docket No. 17) and the Motion to Strike (Docket No. 38) should both be DENIED.
BACKGROUND
The Defendant, Michael Forest Hays, is charged with two counts of transporting undocumented immigrants from Mexico, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (B)(i). Defendant was pulled over on June 1, 2004, during a traffic stop on the highway initiated by Border Patrol Agents Nathan Sheldon and Juan Cuellar. The Border Patrol is an agency within the Department of Homeland Security. The agents spotted a black, extended-cab pickup truck with tinted windows around 4:45 a.m. on Highway 85 in Dilley, Texas. Defendant moves to suppress the fruits of the stop and search of his vehicle, on the grounds that (1) there was no reasonable suspicion to make an investigatory stop; and (2) any investigatory stop and detention exceeded the permissible limits of such intrusion, thus rendering it illegal.
FINDINGS OF FACT
Border Patrol Agent Nathan Sheldon testified that Texas State Highway 85 is a known alien smuggling route used to bring aliens into the interior of the United States. On June 2, 2004, Agent Sheldon and his partner, Agent Juan Cuellar were parked perpendicular to the highway when they spotted Defendant's black pickup truck, which appeared to be laden with heavy cargo and was "riding heavy" in the rear suspension. Agent Sheldon testified that the windows in their Border Patrol vehicle were down and that both agents noted that the passing truck's engine sounded louder than normal for trucks of this kind. Agent Sheldon stated that they took this observation as another indication that the truck was potentially carrying excess weight. The agents noted that the truck bore heavy, dark tinting on the windows, which in the agents' experience is often used by smugglers to conceal their illegal cargo.
When he took the stand, Agent Cuellar, who was also in the vehicle with Agent Sheldon, testified that the windows in their vehicle were up and that the air conditioning was running.
After noting these suspicious factors, the Border Patrol agents pulled out of their fixed location and began to follow Hays down the highway. The agents observed the Defendant's vehicle swerve from the right side to the left side of the road, unable to maintain a straight line of travel. They also noticed that the truck bounced more than usual upon passing over normal road bumps. These facts both suggested to the agents that the vehicle was carrying more than a normal weight load and the driver was unused to carrying this weight.
On cross examination, Agent Sheldon admitted that he only noticed the swerving when he was closely following the Defendant's truck in his patrol vehicle.
On cross examination, Agent Sheldon admitted that Highway 85 had been paved recently and he was aware of any specific bumps in the road.
The agents decided to run a computer vehicle registration check, which came back with a result that matched the truck to an address in Jourdanton, Texas, the location of a known smuggling operation. That operation was also known to the agents to operate on Highway 85 and pass smuggling loads using pickup trucks. Based on the results of the registration check, the route of travel, appearance and behavior of the truck as it drove down the highway, the knowledge that Highway 85 was a known smuggling corridor, and their combined experience, the agents decided to pull over the truck and perform an immigration inspection of the vehicle. Upon approaching the vehicle, agents glancing into the bed of the pickup observed human feet sticking out from under piles of carpet. The agents then approached the driver's door and shined flashlights into the truck, revealing several more bodies attempting to hide under the folded rear seat of the extended cab truck. The agents then arrested the driver, Defendant Hays, and read him his Miranda rights.
ANALYSIS AND CONCLUSIONS OF LAW
I. Motion to StrikeDefendant moves to strike the Government's Response (Docket No. 37) to his motion, arguing that it was filed out of time. However, Defendant makes no showing of prejudice due to the Government's failure to timely file its two-page response or that this failure worked some injustice that the Court must remedy by striking the pleading. Further, the Government raises only two minor points in its response, neither of which goes to the ultimate issues here, which were exhaustively discussed in its response to Defendant's initial motion to suppress (Docket No. 20). Under these circumstances, the Court finds no reason to strike the response, despite its untimely filing, and will deny Defendant's motion to strike.
See e.g., Valdespino v. Alamo Heights Ind. School Dist., 168 F.3d 848, 851-52 (5th Cir. 1999).
II. Motion to Suppress Evidence
Defendant seeks to suppress evidence discovered by the border agents, arguing that the stop was illegal and that his detention exceeded the permissible scope. Specifically, Defendant seeks to suppress (1) any evidence acquired as a result of the stop; (2) any fruits of any observation or search of the interior of his vehicle; (3) any post-detention statements that Defendant or any passenger of the vehicle made; (4) any identification of the Defendant by any witness as a result of the stop; and (5) any other evidence obtained directly or indirectly by exploitation of the evidence directly acquired.
Defendant argues that in cases involving "roving border patrols," the Supreme Court employs a standard that is greater than probable cause, citing United States v. Brignoni-Ponce and United States v. Cortez. Defendant also argues that in roving border patrol cases, the Fifth Circuit employs a strict "fifty-mile rule," which creates a presumption that vehicles apprehended within fifty miles of the border between the United States and Mexico have recently crossed that border. Since the point at which Defendant's truck was intercepted by the Agents in this case was close to seventy miles from the border, Defendant argues that the facts do not support a presumption that he had recently crossed the border and thus, the "vital element test" is not met. As a result, Defendant contends that the Court must analyze the other factors charily and that, when it does so, it will find that there was no reasonable suspicion to initiate an immigration stop of his truck. In sum, Defendant claims that there is no particularized and objective basis for the stop and the fruits of the stop and the ensuing arrest must be suppressed by this Court.
United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975); United States v. Cortez, 449 U.S. 411, 417-18 (1981).
See United States v. Inocencio, 40 F.3d 716, 722 esp. n. 7 (5th Cir. 1994) ("Vehicles traveling more than fifty miles from the border are usually a "substantial" distance from the border). See also United States v. Cardona, 955 F.2d 976, 980 (5th Cir.), cert. denied, 506 U.S. 942 (1992) (stop was proper where vehicle was between 40 and 50 miles from Mexican border); United States v. Melendez-Gonzalez, 727 F.2d 407-11 (5th Cir. 1984) (a stop sixty miles from the Mexican border was not sufficient to establish that vehicle originated from the border).
The government responds that the agents had sufficient, articulable information upon which to stop the Defendant, citing several factors that led the Border Patrol agents to initiate the stop. Further, the Government argues that the stop did not exceed the permissible scope or limits of such a stop and that Defendant's arguments that it did are without merit. As a result, the Government moves that the motion to suppress be denied as without merit.
A. Border Patrol Stops Under the Fourth Amendment
The Fourth Amendment protects individuals from unreasonable search and seizure. Traffic stops are considered seizures within the meaning of the Fourth Amendment, but are more like investigative detentions than formal arrests. "Officers on roving patrol may stop vehicles only if they are aware of specific facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country." An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. The determination of whether there is reasonable suspicion is to be made with regard to the whole picture, taking into account the totality of the circumstances surrounding the detention. This does not mean — as Defendant erroneously argues — that courts employ a standard for roving patrol stops more rigorous than probable cause.
Delaware v. Prouse, 440 U.S. 648, 653 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975); United States v. Valadez, 267 F.3d 395, 397 (5th Cir. 2001).
Berkemer v. McCarty, 468 U.S. 420, 439 (1984).
Brignoni-Ponce, 422 U.S. at 884.
United States v. Cortez, 449 U.S. 411, 417 (1981); Prouse, 440 U.S. at 661.
Cortez, 449 U.S. at 417-18.
See, e.g., United States v. Arvizu, 122 S.Ct. 744, 750-51 (2002) ("Although an officer's reliance on a mere `hunch' is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause . . .") (citations omitted).
In determining whether a Border Patrol agent acted with reasonable suspicion in initiating an immigration or investigatory stop, district courts may consider the following factors:
(1) known characteristics of a particular area, (2) previous experience of the arresting agents with criminal activity, (3) proximity of the area to the border, (4) usual traffic patterns of that road, (5) information about recent illegal trafficking in aliens or narcotics in the area, (6) the behavior of the vehicle's driver, (7) the appearance of the vehicle, and (8) the number, appearance and behavior of the passengers.
United States v. Inocencio, 40 F.3d 716, 722.
While no one factor is controlling, Fifth Circuit decisions in this area have emphasized the importance of reason to believe that the vehicle came from the border as a factor in justifying the patrol's stop. These decisions make clear that the nearer the stop is to the border, the more likely it is that the vehicle crossed the border recently. However, "belief that the vehicle has crossed the border is not necessary if other factors constitute reasonable suspicion to stop the vehicle."
See Inocencio, 40 F.3d at 722 n. 6 ("This Court considers the fact that a vehicle may have recently crossed the border as a vital element in making an investigatory stop. United States v. Melendez-Gonzalez, 727 F.2d 407-11 (5th Cir. 1984). This stems from the fact that we are reluctant to allow governmental interference with people traveling within our country, even if the vehicle is traveling close to the border. Id. That situation, however, is completely different from the instance where someone has "definitely and positively entered this country from abroad." Id. (quoting United States v. Lopez, 564 F.2d 710, 712 (5th Cir. 1977)). In the latter case, a stop at the border or its "functional equivalent" is automatically justified without a showing of probable cause or even reasonable suspicion. Id. (citing Almeida-Sanchez v. United States, 413 U.S. 266, 272-73 (1973)). At times, this issue is resolved by an analysis of the road the vehicle was traveling on, the number of towns along the road, the number of intersecting roads and, finally, the number of miles the vehicle was actually from the border at the point of the stop. United States v. Cardona, 955 F.2d 976, 980 (5th Cir.), cert. denied, 506 U.S. 942 (1992)"). See also United States v. Pena-Cantu, 639 F.2d 1228, 1229 (5th Cir. 1981); United States v. Pacheco, 617 F.2d 84 (5th Cir. 1980); United States v. Lamas, 608 F.2d 547 (5th Cir. 1979); United States v. Ballard, 600 F.2d 1115 (5th Cir. 1979); United States v. Escamilla, 560 F.2d 1229 (5th Cir. 1977).
Id. Vehicles traveling more than fifty miles from the border are usually a "substantial" distance from the border. See United States v. Cardona, 955 F.2d 976, 980 (5th Cir.), cert. denied, 506 U.S. 942 (1992) (stop was proper where vehicle was between 40 and 50 miles from Mexican border); United States v. Melendez-Gonzalez, 727 F.2d 407-11 (5th Cir. 1984) (a stop 60 miles from the Mexican border was not sufficient to establish that vehicle originated from the border).
United States v. Pallares-Pallares, 784 F.2d 1231, 1233 (5th Cir. 1986); United States v. Henke, 775 F.2d 641, 645 (5th Cir. 1985).
B. Initial Stop of Defendant Hays
Defendant Hays claims that the Border Patrol agents stopped him on June 2, 2004, without a particularized and objective basis for the stop. He also claims that he was more than sixty miles from the Mexican border and more than eighty highway miles from the nearest border crossing. Since he was not within the fifty miles that would create a presumption that he had recently crossed the border, Defendant argues that the Court must not consider his proximity to the border in its analysis of the Brignoni-Ponce factors. Further, Defendant argues that, in the absence of this "vital element" the Court must weigh the remaining factors charily.
The government responds that the facts surrounding the stop meet the Brignoni-Ponce test for reasonable cause to pull over Defendant Hays. The government cites the results of the registration check; the route of travel; appearance and behavior of the truck as it drove down the highway; the sound of the truck's engine; the knowledge that Highway 85 was a known smuggling corridor; and the agents' training and experience as support for its argument that the agents' stop meets the standard in Brignoni-Ponce. The government argues that since the stop satisfies at least five of the Brignoni-Ponce factors, the roving border patrol agents had reasonable suspicion to make a temporary investigatory stop of the Defendant's vehicle.
The Court notes at the outset that the "vital element" emphasized in the Fifth Circuit decisions on point — reason to believe the vehicle had recently crossed the border — is not present on these facts, since the border agents apprehended the truck more than sixty miles from the border and had no other information upon which to base a determination that the vehicle had come from the border. Since the proximity to the border factor applied to this case does not allow for an inference that Defendant's truck recently crossed the border, the Court must analyze the other factors carefully.
For example, the agents testified that they had no reason to believe that Defendant's vehicle had recently crossed the border, since it had not triggered any detection sensors and there was no other evidence that the truck had been driving on dirt roads, such as mud on the truck. Def.'s Br. (Docket No. 36), Ex.1.
E.g., Pena-Cantu, 639 F.2d at 1229. See also United States v. Lopez-Valdez, 178 F.3d 282, 286-88 (5th Cir. 1999).
Throughout its analysis, the Court looks always to the totality of the circumstances that surrounded the stop in order to determine if the initial stop was warranted. The Court turns its attention to the Government's assertions as to the Brignoni-Ponce factors and will examine them to determine whether, taken together, they add up to reasonable suspicion of illegal behavior.
United States v. Cortez, 449 U.S. at 418.
1. Known Characteristics of the Area
The government claims that the part of Highway 85 on which Defendant was apprehended is a "notorious alien smuggling route used to smuggle aliens into the United States." Defendant admits to traveling on Highway 85, albeit at a distance of greater than eighty miles from the border. It is true that Texas courts have recognized the principle that the mere fact that aliens have been smuggled over a highway in the past is not alone sufficient evidence to support a finding of reasonable suspicion. However, the agents testified that they had undergone significant training in border patrol operations and knew from this training and personal experience that Highway 85 is a notorious smuggling route. Without evidence to the contrary, the Court accepts the agents' representation that Highway 85 is a known smuggling corridor and find that this factor weighed in favor of the reasonableness of stopping Defendant's truck.
See Saenz v. Texas, 842 S.W.2d 286 (Tex.Crim.App. 1992).
2. Previous Experience with Alien Traffic
While the government does not spend much time arguing this factor, it is uncontested that the individuals who arrested Hays were Border Patrol agents whose job duties include patrolling the highways and apprehending smugglers. As part of this job, the agents routinely stake out and observe highway traffic. Given their professional training as well as personal experience in this line of work, the agents were able to deduce various facts augmenting the other factors noticed. For example, the agents were able to determine, from the appearance and operation of the pickup, that it was likely carrying a significant load.
Defendant addresses the experience of the agents, arguing that their experience is insufficient to rely upon as a basis for stopping Defendant's truck. Counsel for Defendant questioned the agents at the hearing, ascertaining that they had a "success rate" (of traffic stops resulting in finding criminal activity) of around 20 percent. Defendant argues that this relatively low success rate prevents the agents from being able to rely on their experience as a basis to support the stop and indeed they did not rely on this basis in their testimony before the Court.
See United States v. Ortega-Serrano, 788 F.2d 299, 302 (5th Cir. 1986) (finding INS agent's 18 years of experience insufficient ground to base finding of reasonable suspicion on when nothing in record indicated that the experience was used to justify the stop).
The Court notes that, in analyzing the Brignoni-Ponce factors, the Fifth Circuit has found that an approximately 15 percent success rate can support reasonable suspicion, because it shows that the route was favored by smugglers. Thus, while not determinative on the question of whether the agents' experience alone would justify their determination that reasonable suspicion existed to pull over Defendant, the agents' success rate in apprehending contraband — though not necessarily singularly related to the Highway 85 corridor itself — lends support to the "known characteristics of the area" and "information about alien smuggling" factors and ultimately weighs in favor of the reasonableness of the agents' determinations.
See United States v. Zapata-Ibarra, 212 F.3d 877, 881-82 (5th Cir. 2000).
Fundamentally, the analysis the Court undertakes is based on the "totality of the circumstances"; the Court's role is to find whether on the basis of all factors there was reasonable suspicion. The Supreme Court also holds that border patrol agents are entitled to rely on their experience and training when considering other facts and evidence and making judgments about whether reasonable suspicion exists in a particular case. Thus, while the agents' experience is not necessarily sufficient to support a finding of reasonable suspicion on its own, it does allow the agents to make reasonable inferences based on that experience. As a result, the Court determines that this factor weighs in favor of the reasonableness of the stop.
See, e.g., Cortez, 449 U.S. at 418; Brignoni-Ponce, 422 U.S. at 884-85; Terry, 392 U.S. at 27.
E.g., Brignoni-Ponce, 422 U.S. at 485 ("In all situations, the officer is entitled to assess the facts in light of his experience in detecting illegal entry and smuggling.").
3. Information about Illegal Alien Trafficking in that Area
Agents Sheldon and Cuellar testified that they had received intelligence reports of alien smuggling activity along the Highway 85 route, including alien transport by pickup trucks along that road. The agents were able to use this information, in conjunction with the results of the computer vehicle registration check, to connect the truck's registration to the location of a known smuggling enterprise. They also visually confirmed that the vehicle matched the description of the type of vehicles thought to be used in that smuggling operation. Thus, the agents had evidence that there was a smuggling ring operating along Highway 85, particularly between the towns of Charlotte, Jourdanton, and Pleasanton, Texas and they were following a truck that matched the description of vehicles used in the operation and was registered in Jourdanton.
Suppression Hearing Transcript ("Tr."), at 12.
Defendant argues that Highway 85 is a major road in Texas and the mere fact that it has been used in the past for smuggling is not sufficient to justify the stop. Defendant also points out that the agents admitted on the stand that the mere fact that his truck was registered in Jourdanton was an insufficient ground upon which to consider the vehicle suspicious. Agent Cuellar also admitted that the fact that the truck was registered in Jourdanton was not a factor in the agents' decision to stop the vehicle and that they would have stopped the truck if it were registered in another city.
United States v. Diaz, 977 F.2d 163, 165 (5th Cir. 1992).
Tr. at 83.
While perhaps insufficient on its own to support reasonable suspicion of criminal activity, the agents' knowledge and information regarding alien trafficking in the area was appropriately considered in their decision to pull over Defendant's truck. When taken with the other factors, including the observations about Defendant's truck, the time of travel, and other factors, the information regarding known alien smuggling along Highway 85 was an appropriate consideration in deciding whether reasonable suspicion existed. The Court finds that this factor also weighs in favor of the reasonableness of the stop.
Brignoni-Ponce, 422 U.S. at 884.
4. Operating Behavior of the Vehicle
Once they began following the truck, the agents noted that it swerved from side to side and seemed unable to maintain a straight path of travel. The agents testified that this factor could support a finding of reasonable suspicion in any of several ways. For example, based upon their experience, the agents knew that a truck that is heavily loaded driven by a driver unused to such a load would likely swerve when driven at highway speeds. Further, the sudden appearance of the marked Border Patrol vehicle could also cause a person driving with contraband to become nervous and swerve or drive erratically. Upon either of these bases, the agents reasonably determined that the operating behavior of the truck supported a decision to perform a stop and immigration inspection of the vehicle. Indeed, characteristics regarding the vehicle itself make up an important subset of the Brignoni-Ponce factors, and agents are entitled to consider such things when deciding whether reasonable suspicion exists or not.
See United States v. Nichols, 142 F.3d 857, 868 (5th Cir. 1998); Brignoni-Ponce, 422 U.S. at 885.
Brignoni-Ponce, 422 U.S. at 885.
5. General Appearance of the Vehicle
Considered in a vacuum, there was nothing necessarily criminal about the appearance of the Defendant's truck. However, when the agents took into consideration the information that the known smuggling operation utilized pickup trucks and operated along the Highway 85 corridor, the appearance of the truck could support their decision to initiate a stop. Further, the dark tinted windows were an additional, if not singularly persuasive, factor that weighed toward a decision to stop the truck.
Defendant challenges this aspect of the agents' basis for pulling him over, pointing out inconsistencies in the agents' testimony and arguing that the truck's appearance did not warrant reasonable suspicion of criminal activity. However, despite small differences in the agents' testimony, both testified clearly that they heard the approach of Defendant's truck and it was louder than similar trucks, raising their suspicion that the truck was laboring under a heavier load than normal. Defendant also questions the agents' observations that the vehicle was riding low, arguing that the vehicle was equipped with shock absorbers that allow it to carry up to 3,000 pounds without riding low. Defendant also makes the unassailable point that a pickup truck on a south Texas road cannot be considered an unfamiliar vehicle, citing Fifth Circuit statements in support.
Defendant notes that Agent Sheldon testified that the windows in their patrol vehicle were down and the air conditioning was running, while Agent Cuellar testified that the windows were up and the air conditioning was running. Tr. at 16, 80. The Government notes that Agent Sheldon, who wrote the report and testified first, stated at the hearing that the windows were down, consistent with his written report. The Court notes, and an additional review of the hearing transcript shows, that Agent Sheldon generally seemed to recall the events more successfully, perhaps as a result of having authored the report of the incident himself and having relatively less experience than Agent Cuellar. As a result, the Court credits his account of the events on this point.
Tr. at 22 (Sheldon), 74 (Cuellar). The minor inconsistency revealed by defense counsel's skillful cross-examination of the agents actually lends to their credibility as unrehearsed witnesses and the Court finds no grounds upon which to discredit the general testimony of the agents.
Tr. at 65-66.
See United States v. Jacquinot, 258 F.3d 423 (5th Cir. 2001).
The Court finds that the appearance of the vehicle was properly considered by the agents and supported their reasonable suspicion of smuggling activity. The sound of the engine, accompanied by the apparent low ride of the vehicle and the dark tinted windows — when observed by the agents and considered in light of their years of experience and training — supports their suspicion and stop of Defendant's vehicle.
In light of the foregoing factors, the Court finds that the Border Patrol agents were aware of specific articulable facts, together with rational inferences taken from them, that reasonably warranted suspicion that the truck's occupant was engaged in illegal activity. As a result, given the totality of the circumstances surrounding the stop, the agents were reasonable in their decision to detain Defendant's vehicle. Because the agents' stop was reasonable under the controlling authorities, it was proper under the Fourth Amendment and Defendant's Motion to Suppress based on the propriety of the initial stop must be denied.
See Brignoni-Ponce, 422 U.S. at 885-86.
C. Subsequent Detention/Scope of Stop
Defendant also makes a half-hearted argument that the investigatory stop and detention exceeded the scope of a permissible stop, rendering it illegal. Certainly, a valid stop that extends beyond acceptable limits can violate the Fourth Amendment.
See United States v. Brigham, 343 F.3d 490, 498 (5th Cir. 2003); United States v. Dortch, 199 F.3d 193, 200 (5th Cir. 2003).
In the matter before the Court, the agents approached the truck and immediately observed the presence of human cargo, both in the bed of the truck and in the extended cab. Given their knowledge of the smuggling operations in the area, the agents then had probable cause to believe that Defendant was smuggling illegal aliens into the United States. The agents thus had probable cause to place Defendant under arrest, which they did immediately. As the government notes, Defendant offers no argument that the stop, once initiated, exceeded the permissible scope of an investigatory traffic stop under controlling authorities. Indeed, the Court can think of no way in which the stop exceeded its permissible scope, since the probable cause arose immediately upon the agents' contact with Defendant's truck. Since the arrest was performed directly after the agents observed the illegal human cargo, the Court can find no basis whatsoever on which to base a determination that the stop exceeded its permissible scope. As a result, the Court will deny Defendant's Motion to Suppress on this basis as well.
CONCLUSION
Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that Defendant's Motion to Suppress (Docket No. 17) be DENIED.It is further ORDERED that Defendant's Motion to Strike the Government's Response (Docket No. 38) is DENIED.