United States v. Gomez-Espinoza ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 20 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 97-2302 & 97-2321
(D. Ct. Nos. CR-96-610-BB)
REFUGIO GOMEZ-ESPINOZA; (D. N. Mex.)
MAX MENDOZA,
Defendants - Appellants.
ORDER AND JUDGMENT *
Before TACHA, BALDOCK, and KELLY, Circuit Judges.
Following their indictments for conspiracy and possession with intent to
distribute more than 100 kilograms of marijuana, in violation of 18 U.S.C. § 2 and
21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, the defendants separately moved
to suppress the marijuana that United States Border Patrol agents discovered in
the gas tanks of four pickups the defendants and others were driving near the New
Mexico-Mexico border. The district court denied their motions. The defendants
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
subsequently pleaded guilty while reserving their right to appeal the denial of
their motions to suppress. They pursue that appeal here. We exercise jurisdiction
under 28 U.S.C. § 1291 and affirm.
The sole question presented by this appeal is whether the district court
properly held that Border Patrol agents had reasonable suspicion to stop a convoy
of four nearly identical pick-up trucks near the New Mexico-Mexico border.
On September 28, 1996, Border Patrol Agent Jose Alvarado was traveling
northwest along I-10 from El Paso, Texas to Las Cruces, New Mexico. Agent
Alvarado had been stationed in Las Cruces for about six years. During that time,
he made at least 80 drug arrests. Just south of Las Cruces, I-10 turns due west
towards Arizona and California. At that point, I-25 begins and continues the
northbound path that I-10 follows from El Paso toward Las Cruces. There are
permanent Border Patrol checkpoints on both I-25 north of Las Cruces and I-10
west of Las Cruces that lie in the territory that Agent Alvarado patrols. Because
the I-10 checkpoint is often unmanned, I-10 is commonly used by drug smugglers
to circumvent the more frequently manned checkpoint along I-25.
At about 1:00 p.m., approximately five miles south of Vado, New Mexico,
Agent Alvarado spotted two pick-up trucks traveling northwest along I-10 toward
Vado. Vado is about fifteen miles north of the border and about ten miles south
of Las Cruces. The first truck was a tan Chevrolet pick-up truck with California
-2-
license plates. In front of the tan truck was a similar white Chevy pick-up also
with California plates. According to Agent Alvarado’s testimony, Chevy pick-up
trucks are commonly used to smuggle drugs through checkpoints. He suspected
that the two trucks were traveling in tandem. He also suspected that the first
truck was acting as a “scout” for the second one. According to Agent Alvarado,
drug smugglers often use “scout cars” to determine whether checkpoints are
manned or if a drug-sniffing dog is present. The scout then advises the driver of
the cars loaded with contraband (i.e., the load cars) to proceed into the
checkpoint, sit and wait, or turn around.
The two trucks stayed together, keeping a constant distance of five to seven
car lengths between them. According to Agent Alvarado, drug smugglers often
keep such distances from each other so as not to draw attention to themselves. At
the point where I-10 and 1-25 meet, both trucks headed westbound on I-10.
Agent Alvarado continued to follow the trucks, “suspect[ing] that if the vehicles
indeed were carrying contraband, that they would exit at the Love’s exit, a truck
stop.” Tr. at 41. The Love’s truck stop is located in a remote desert area outside
of Las Cruces, approximately twelve miles east of the I-10 checkpoint, and about
thirty miles west of Vado. According to Agent Alvarado’s testimony, Love’s is a
common staging area used by smugglers to leave vehicles loaded with drugs while
a scout car goes to the checkpoint to see whether it is manned. At the truck stop,
-3-
both vehicles gassed up. Agent Alvarado noted that drug smugglers commonly
hide drugs in gas tanks, thus limiting the amount of gas their tanks can hold and
requiring them to refuel frequently. After refueling and parking their cars, the
drivers of the two trucks walked over to a third Chevy pick-up truck. The drivers
of the three trucks talked to one another. Soon thereafter, a fourth Chevy pick-up
pulled into the parking lot. This truck was white and had Chihuahua, Mexico
license plates. According to Agent Alvarado, the driver “squealed his tires as he
came to a halt.” Tr. at 46, 102, 107. He then walked over to where the other
drivers were talking and he gestured to them to follow him. Agent Alvarado
testified that he thought the fourth truck could have just completed a scouting run
to the I-10 checkpoint.
Agent Alvarado radioed for backup and followed behind two of the trucks.
The other two pick-up trucks drove behind him. Approximately 40 miles west of
the Love’s truck stop, at mile marker 93, Agent Alvarado stopped the two trucks
that he was following. He was soon joined by back-up units, one of which then
left in pursuit of the remaining two Chevys. Defendant Gomez-Espinoza was the
driver of one of the two vehicles that Agent Alvarado had stopped.
Five miles down the road, at mile marker 88, New Mexico State Police
Officer Robert Santana stopped the other two trucks, one of which Defendant
Max Mendoza was driving. Officer Santana had with him a drug-sniffing dog.
-4-
Mendoza and the driver of the other truck consented to have Officer Santana
inspect their trucks with the dog. The dog alerted to the gas tanks of both trucks.
Soon thereafter, Agent Alvarado arrived at mile marker 88 with the first two
trucks that had been stopped and their occupants. Defendant Gomez-Espinoza
consented to have his truck inspected by the dog, which alerted to the gas tank.
The agents placed the defendants under arrest and searched the trucks.
They discovered a total of 546 pounds of marijuana hidden within the gas tanks of
the four trucks.
The defendants separately moved to suppress the marijuana on the ground
that the agents lacked reasonable suspicion to stop them. The district court
denied their motions, ruling from the bench. In reviewing a decision on a motion
to suppress, we review the district court’s ultimate determination about
reasonable suspicion de novo, though we review the court’s factual findings for
clear error, giving due weight to the inferences drawn therefrom by the district
court. See United States v. Barron-Cabrera, 119 F.3d 1454, 1457 (10 th Cir. 1997).
We view the evidence in the light most favorable to the district court’s findings.
See id.
It is well established law that border patrol agents on roving patrol may
stop vehicles only if they are aware of specific articulable facts, together with the
rational inferences therefrom, that reasonably warrant suspicion that the vehicles
-5-
are involved in criminal activity. See United States v. Brignoni-Ponce, 422 U.S.
873, 884 (1975); United States v. Martinez-Cigarroa, 44 F.3d 908, 910 (10 th Cir.
1995). To determine whether a stop was based on reasonable suspicion, we
employ a totality-of-the-circumstances approach. See United States v. Sokolow,
490 U.S. 1, 8 (1989). Under that approach, we consider whether the articulated
facts in the aggregate support the stop. See id. at 9. Even if each fact alone is
not proof of illegal activity, when considered together, the facts may nonetheless
amount to reasonable suspicion. See id. The issue here, then, is whether Agent
Alvarado’s rational inferences from all the facts he had before him justified his
decision to pull over the trucks.
Border patrol agents may properly consider the following factors in
determining whether there exist facts that reasonably warrant suspicion of
criminal activity: (1) the physical characteristics of the geographic area in which
the vehicle is stopped, (2) traffic patterns on the road, (3) proximity to the border,
(4) previous experience with illegal activity in the area, (5) information about
recent border crossings, (6) attempts to evade detection, (7) appearance of the
vehicle, (8) appearance and behavior of the driver and passengers, and (9) other
relevant information. See United States v. Pollack, 895 F.2d 686, 690 (10 th Cir.
1990) (quoting United States v. Lebya, 627 F.2d 1059, 1062-63 (10th Cir. 1980)).
Given these factors and this circuit’s caselaw, and considering the facts with
-6-
which Agent Alvarado was faced and his many years experience in the field, we
agree with the district court that under the totality of the circumstances, the stop
of the Chevy trucks was based upon reasonable suspicion. The facts here are not
appreciably less suspicious than those presented in United States v. Pollack,
United States v. Cantu, 87 F.3d 1118 (10 th Cir. 1996), or United States v. Leos-
Quijada, 107 F.3d 786 (10 th Cir. 1997).
For example, in Pollack, we held that border patrol agents had reasonable
suspicion to stop the driver of a suspected load car. There, the driver of a pick-up
truck came through a border patrol checkpoint along I-25 early in the morning and
asked for directions to the nearest filling station. Forty-five minutes later, agents
detected the pick-up on another highway traveling close to a Buick sedan that
seemed to be riding low in the rear. The highway was seldom traveled and it
circumvented the border patrol checkpoint on I-25. After agents stopped both
vehicles, they searched and found marijuana in the trunk of the Buick. See
Pollack, 895 F.2d at 692.
In this case, each fact taken alone seems relatively innocent. Taken
together, however, the conduct of the four pick-up trucks breeds suspicion. Most
suspicious was the fact that four, nearly identical, out-of-state Chevy pick-up
trucks rendez-voused at a desert truck-stop only ten miles east of a border patrol
checkpoint. When the fourth pick-up arrived at Love’s truck-stop, the driver
-7-
rounded up the other drivers and they quickly headed west on I-10 towards the
checkpoint. Agent Alvarado recognized this rendez-vous as characteristic of
scouting activity used in smuggling contraband. Furthermore, pick-up trucks are
often used, because of their size, to smuggle drugs. The truck stop where all the
trucks stopped is reportedly known to be a frequent meeting place for drug and
alien smugglers, and the entire geographic area just north of the Mexican border
is known for extensive alien and drug smuggling. Agent Alvarado had observed
the first two pickups during his drive from El Paso, along the Mexican border.
Agent Alvarado testified that most of the drugs smuggled into southern New
Mexico come from Juarez, a Mexican city just across the border from El Paso.
Indeed, one of the four trucks had Mexican license plates. All of the pickups
drove a stretch of highway known for its limited traffic and known as an avenue
to bypass the more frequently manned checkpoint on I-25. These factors, when
considered in the aggregate, gave rise to a reasonable suspicion justifying
stopping the four trucks.
AFFIRMED.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
-8-