United States v. Walter , 102 F. App'x 873 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 16, 2004
Charles R. Fulbruge III
Clerk
No. 03-41419
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD JOSEPH WALTER,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1254-1
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Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Donald Walter (“Walter”) was convicted in a stipulated bench
trial of one count of transportation of an undocumented alien
within the United States for private financial gain by means of a
motor vehicle in violation of 8 U.S.C. § 1324(a)(1)(B)(i). Walter
argues that the district court erred in denying his motion to
suppress evidence obtained from a roving border patrol stop.
Walter contends that the border patrol agents lacked reasonable
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 03-41419
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suspicion to conduct the stop and that he did not give voluntary
consent for the agents to search his tractor-trailer.
Reasonable suspicion
When reviewing the district court’s denial of a motion to
suppress, this Court reviews the district court’s factual findings
for clear error and its legal conclusion that reasonable suspicion
existed is reviewed de novo. United States v. Jacquinot, 258 F.3d
423, 427-28 (5th Cir. 2001), cert. denied, 534 U.S. 1116 (2002).
The evidence presented at a suppression hearing must be viewed in
the light most favorable to the prevailing party at the district
court level. Id. at 427 (citing United States v. Inocencio, 40
F.3d 716, 721 (5th Cir. 1992)). In determining whether reasonable
suspicion exists, this Court examines the totality of the
circumstances surrounding the stop. United States v. Galvan-
Torres, 350 F.3d 456, 458 (5th Cir. 2003). Of the eight
nonexclusive factors used to establish reasonable suspicion,
Jacquinot, 258 F.3d at 427-28 (citing United States v. Brignoni-
Ponce, 422 U.S. 873, 884 (1975)), five are relevant to the instant
case: (1) characteristics of the area; (2) the arresting agents’
prior experience with criminal activity; (3) proximity of the area
to the border; (4) information about recent illegal trafficking in
aliens in the area; and (5) appearance of the vehicle.
(1) Characteristics of the area
At the suppression hearing, Agent Alfredo Coronado
(“Coronado”), who ordered the stop, testified that he observed that
No. 03-41419
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Walter’s tractor-trailer was parked with its lights off at a
darkened corner of the Gateway Center parking lot. Coronado noted
that in the past two years, he was personally involved in
approximately six cases concerning the loading of illegal aliens in
this particular parking lot. Coronado testified that most of the
interceptions of vehicles smuggling illegal aliens occurred between
10:00 p.m. and 2:00 a.m. and that the instant incident occurred at
approximately 10:00 p.m. He further testified that, from his
experience in observing trucks unloading merchandise at the
shopping center, the time of night was unusual for Walter’s truck
to be parked in the lot. This factor weighs in favor of reasonable
suspicion.
(2) Arresting agents’ prior experience
Agent Coronado testified that he had worked as a border patrol
agent for seven years prior to the instant incident and had
specialized in the offense of smuggling illegal aliens. Agent
Manuel Morales, who assisted another border patrol agent in
stopping Walter’s tractor-trailer, testified that he had worked as
an agent for six years and in the course of a given month was
likely to conduct anywhere from 10 to 50 arrests. Agent Louis
Collins, who was also involved in Walter’s stop, had worked as a
supervising border patrol agent for over eight years. Accordingly,
this factor supports a finding of reasonable suspicion.
No. 03-41419
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(3) Proximity to the border
When a car is first observed within fifty miles of the border
the proximity test is satisfied. Jacquinot, 258 F.3d at 428. The
parties agree that the Gateway Center is approximately five miles
from the border between the United States and Mexico. Accordingly,
this factor weighs in favor of reasonable suspicion.
(4) Information about recent illegal trafficking in aliens
in the area
As previously noted, Agent Coronado testified that he had been
involved in six different incidents of illegal alien smuggling in
the Gateway Center parking lot. He stated that the confidential
informant who alerted him about Walter’s tractor-trailer assisted
the border patrol a month prior to the instant incident in
apprehending 27 undocumented aliens in the same parking lot. This
factor weighs in favor of reasonable suspicion.
(5) Appearance of the vehicle
Agent Coronado testified that the tractor-trailer was unusual
because it was an Allied moving van, atypical of the types of
trucks that unloaded merchandise at Gateway Center. He further
testified that a vehicle of that type would normally park at the
nearby Santa Maria Truck Stop. He discounted the possibility that
the vehicle could have been unloading merchandise at one of the
stores at night because the shopping center was closed and the
vehicle was parked with its lights off. The fact that a van parked
near the tractor-trailer added to the agents’ reasonable suspicion
of the vehicle, as such a scenario is consistent with the transfer
No. 03-41419
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of individuals or contraband. Accordingly, this factor supports a
finding of reasonable suspicion.
As a result of the foregoing analysis, the district court’s
factual findings were not clearly erroneous and its conclusion that
reasonable suspicion for the stop existed is adequately supported
by the totality of the circumstances.
Voluntary consent
Walter argues both that he did not give consent for his
tractor-trailer to be searched, and that even if he did, it was
involuntary.
This court “will not reverse the district court’s finding that
consent was voluntary unless it is clearly erroneous.” United
States v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993) (citing
United States v. Oliver-Becerril, 861 F.2d 424, 425–426 (5th Cir.
1988)). If a finding is based on oral testimony at a suppression
hearing, the “clearly erroneous standard is particularly strong
since the judge had the opportunity to observe the demeanor of the
witnesses.” Id. (quoting United States v. Sutton, 850 F.2d 1083,
1086 (5th Cir. 1988)).
The record reflects that the district court’s conclusion that
Walter’s consent was voluntary is not clearly erroneous. Although
Walter testified that border patrol agents approached him with
their guns drawn, handcuffed him, and at no time requested the keys
to his vehicle, the district court was entitled to disbelieve
Walter’s account and find the testimony of the agents at the
No. 03-41419
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hearing credible. See United States v. Shabazz, 993 F.2d 431, 438
(5th Cir. 1993). Specifically, Agent Nicholas Bolden (“Bolden”)
testified that when he approached Walter and asked for the keys,
Walter retrieved them from the ignition and handed them to Bolden.
Bolden testified that at no time did he have his gun drawn. Agent
Morales (“Morales”) testified that he heard the dialogue between
Walter and Bolden and that Bolden asked Walter if he could look in
the back of the vehicle. Morales stated that Walter gave the
officers permission to do so and produced his keys. Morales
testified that he and Bolden approached the driver’s side of the
vehicle where Walter was sitting and that neither agent had his gun
drawn. Morales testified that Walter was placed in handcuffs and
arrested only after the undocumented aliens were discovered. Agent
Collins testified that when he arrived on the scene, he observed
agents Bolden and Morales approach Walter at the driver’s side of
the vehicle and that neither agent had his gun drawn. In light of
this testimony, the district court’s ruling that Walter gave
voluntary consent is not clearly erroneous.
Accordingly, the judgment of conviction is AFFIRMED.