United States v. Vega ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-50156
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFREDO VEGA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Western District of Texas
USDC No. P-99-CR-195
_________________________________________________________________
April 24, 2001
Before JOLLY, MAGILL,* and BENAVIDES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:**
Alfredo Vega appeals the denial of his motion to suppress
evidence found in his vehicle after he was stopped by border patrol
agents heading north on Highway 385, about 35 to 40 miles from the
United States/Mexico border. Because we believe the district court
properly found that the border patrol officers based their stop of
Vega’s vehicle on reasonable factors, we affirm.
*
Circuit Judge of the Eighth Circuit, sitting by designation.
**
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this opinion should not be published and is not precedent except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.
I
On June 10, 1999, Vega was indicted for possession of
marijuana with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1). Vega moved to suppress the evidence--bundles of
marijuana discovered during a search of his car--on the grounds
that border patrol agents did not have reasonable suspicion to stop
his vehicle. Following an evidentiary hearing, Vega’s motion was
denied.
Vega entered a conditional guilty plea, reserving the right to
appeal the denial of his motion to suppress. He was sentenced to
42 months’ imprisonment, followed by five years of supervised
release. He has filed a timely notice of appeal.
At Vega’s motion to suppress evidentiary hearing, the only
witness was United States Border Patrol Agent Sam Pat Ferguson.
Agent Ferguson had worked for the border patrol for thirteen years.
According to his testimony, he and his supervisor, Nell Hernandez,
were on Highway 385 on the morning of February 21, 1999. At this
location, ten to fifteen miles north of the intersection with
Highway 2627, they were in a desolate area approximately thirty
five to forty miles north of the United States/Mexico border at La
Linda. Because Highway 2627 to La Linda is the only junction off
of Highway 385 before the entry to Big Bend National Park, any cars
traveling north must have come either from Big Bend National Park
or from La Linda. La Linda is not an official point of entry into
the United States from Mexico; the La Linda bridge, which crosses
2
the Rio Grande, is privately owned and is blockaded from vehicular
traffic with concrete barriers.
Ferguson and Hernandez parked on the west side of Highway 385,
facing south, and set out on foot looking for bike tracks and other
signs of illegal aliens. Sensor devices in La Linda had detected
bicycle traffic that morning, which the Border Patrol suspected was
a group of aliens coming north up Highway 385. Agent Ferguson
testified that groups ride bicycles on the highway north from La
Linda, and lay up during the day off the highway. Highway 385 is
a well known corridor for drug and alien trafficking.
The agents were returning to their car when they saw a clean,
green Hyundai coming around a curve heading north. Agent Ferguson
testified that the driver of the vehicle, who turned out to be
Vega, appeared startled upon seeing the officers and slowed his
vehicle drastically. Vega made eye contact with the agents, but
did not wave or otherwise acknowledge them in any way before
proceeding, and regaining normal speed. Agents Ferguson and
Hernandez decided to follow the vehicle, thinking that the
circumstances and driver’s behavior were somewhat suspicious.
The agents caught up with the Hyundai, at which time Vega, who
appeared to be traveling at a normal rate of speed, slowed to about
40 miles an hour, 30 to 40 miles below the speed limit of 70 miles
an hour. The agents followed four car lengths behind Vega while
they ran a registration check on the vehicle.
3
While awaiting the registration information, the agents
observed Vega to be preoccupied with the agents, constantly
checking his rearview mirror and swerving the vehicle slightly each
time he looked back. Agent Ferguson noted that Vega did not appear
to be a tourist from Big Bend National Park because he was alone
and had no visible camping gear. In addition, Agent Ferguson, who
was familiar with local traffic, did not recognize Vega as a local.
The registration information revealed that the vehicle
belonged to a Troy Croft from Midland, Texas. The suspicion of the
agents was heightened because Vega’s Hispanic appearance did not
match the non-Hispanic name on the car registration. Agent
Ferguson testified that, based on his experience, the name of the
apprehended driver in narcotics incidents “fairly often” does not
match the person to whom the vehicle is registered.*** Agent
Ferguson also testified that the Midland address alerted him, since
the Midland/Odessa area is known as a pipeline for aliens and
drugs. Vega was headed in the direction of Midland/Odessa.
At this time, Agent Ferguson testified that they knew “based
on everything that we had seen that we needed to stop [Vega] and it
was possible he was carrying contraband.” When the agents
activated their emergency lights, Vega threw on his brakes and
jerked his vehicle to a stop very quickly, almost causing a
***
Agent Ferguson had been involved in approximately 50 to 100
smuggling stops in his career, and he testified that many of those
stops involved drivers who had a Hispanic appearance in a vehicle
with an Anglo name on the registration.
4
collision with the agents’ vehicle. Agent Ferguson approached
Vega’s car and noticed the strong smell of fabric softener in
addition to seeing a bag of potpourri on the seat. He asked Vega
where he was from, and Vega replied that he was from Mexico. Agent
Ferguson then asked Vega if he could search the truck, and Vega
consented. Vega was arrested after Agent Ferguson found bundles of
marijuana in the trunk.
II
Vega asserts on appeal that the district court erred in
denying his motion to suppress. He argues the agents violated the
Fourth Amendment because they lacked reasonable suspicion to stop
him.
A
In reviewing the denial of a motion to suppress, the district
court’s factual findings are reviewed for clear error, and its
legal conclusions, including whether reasonable suspicion existed
for a stop, are reviewed de novo. United States v. Inocencio, 40
F.3d 716, 721 (5th Cir. 1994). In addition, the evidence presented
during the suppression hearing is to be viewed in the light most
favorable to the prevailing party--in this case, the government.
Id.
A border patrol agent conducting a roving patrol has the
reasonable suspicion necessary to make a temporary investigative
stop of a vehicle if the agent is aware of specific articulable
facts, together with rational inferences, that reasonably warrant
5
suspicion that the vehicle or its occupant is engaged in criminal
activity. See United States v. Brignoni-Ponce, 422 U.S. 873, 884
(1975). Reasonable suspicion is to be determined by considering
the totality of the circumstances. See United States v. Cortez,
449 U.S. 411, 421-22 (1981). This is a fact-intensive inquiry, and
“each case must be examined from the totality of the circumstances
known to the agent, and the agent’s experience in evaluating such
circumstances.” United States v. Villalobos, 161 F.3d 285, 288
(5th Cir. 1998). Factors to be considered in a reasonable
suspicion analysis include: (1) proximity to the border;
(2)information about recent illegal trafficking in aliens or
narcotics in the area; (3) characteristics of the area; (4) usual
traffic patterns; (5) the agent’s previous experience in detecting
illegal activity; (6) the behavior of the driver; and (7)
particular aspects or characteristics of the vehicle. United
States v. Brignoni-Ponce, 422 U.S. at 884-85. See also Inocencio,
40 F.3d at 722. Although the satisfaction of one single factor
alone may be insufficient, the absence of a particular factor
should not control a court’s conclusion regarding reasonable
suspicion. United States v. Cardona, 955 F.2d 976, 980 (5th Cir.
1992).
B
Based on the totality of the circumstances, we agree with the
district court’s finding that Agents Ferguson and Hernandez
possessed reasonable suspicion that Vega and his vehicle were
6
engaged in possible criminal activity. In particular, we believe
a weighing of the Brignoni-Ponce factors validates the agents’ stop
of Vega.
We have characterized the first factor, proximity to the
border, as the “paramount factor” to consider in determining
reasonable suspicion. United States v. Aldaco, 168 F.3d 148, 150
(5th Cir. 1999). Proximity to the border gives the agents a reason
to believe that the vehicle came from the border. Generally, a
vehicle must be within 50 miles of the border for this factor to be
met. Inocencio, 40 F.3d at 722 n.6.
Vega has conceded that his vehicle was only 35 to 40 miles
from the border at the time he was stopped. Furthermore, Vega was
driving north, away from the border, when he encountered the
agents. We have held that these two considerations support the
reasonableness of an agent’s suspicion in stopping a vehicle. See
United States v. Zapata-Ibarra, 212 F.3d 877, 881 (5th Cir. 2000),
cert. denied, 2000 WL 1468443 (U.S. Oct. 30, 2000) (No. 00-6258).
Vega argues that the agents had no reason to believe that he had
recently crossed the border, as he could have come from Big Bend
National Park on Highway 385, rather than from La Linda on Highway
2627. Furthermore, Vega notes that he could not have crossed the
barricaded bridge at La Linda in his car. He also asserts that his
vehicle was clean, showing no signs that it had crossed the border
at a low-water crossing.
7
This court has found the proximity element satisfied even when
the agents had no evidence suggesting that the vehicle had actually
crossed the border. Inocencio, 40 F.3d at 722 (formulating the
inquiry as “whether an arresting agent could reasonably conclude
that a particular vehicle originated its journey at the border.”).
Agent Ferguson testified that, in his experience, individuals often
transport illegal contraband across the border and deliver it to a
waiting vehicle in the United States. Because these vehicles often
park on a paved road to await the deliveries, the lack of dust on
the vehicle is not inimical to the belief that it could be carrying
contraband. Vega was within fifty miles of the border, on a road
that could have come only from either a private, barricaded border
or a national park, also located on the border. The district court
correctly found that a reasonable agent could conclude that Vega’s
journey originated at the closest border. We thus agree that the
first, and paramount, Brignoni-Ponce factor is satisfied in this
case.
The fact that the agents were at that spot on Highway 385
because there had been recent “hits” on sensor intrusion devices
indicating bicycle traffic near the border south of their location
also supports the agents’ suspicion that Vega might have come from
the border at La Linda. Vega argues that the sensors indicated
bicycle traffic, not automobile traffic, and thus, this information
could not have affected the officer’s suspicion of his vehicle.
Vega’s vehicle, however, could have been the “waiting vehicle” for
8
contraband transported by those individuals who set off the sensor
intrusion devices. Thus, the suspected illegal activity at La
Linda that morning contributed to the reasonableness of the agents’
suspicion.
The third and fourth factors, characteristics of the area and
traffic patterns, also weigh in favor of the agents’ finding of
reasonable suspicion. The district court noted that Highway 385,
where Vega was first observed and stopped, runs from Big Bend
National Park, which is located on the border, to Marathon, Texas.
The court further found that most of the traffic on this road is
local traffic or tourist traffic coming in or out of Big Bend,
although Agent Ferguson testified that the other highway into Big
Bend, Highway 118, is more heavily traveled by tourists. Agent
Ferguson testified that he did not recognize Vega as a local, and
that Vega did not appear to be a tourist from Big Bend because he
was alone and had no visible camping gear. Although Vega noted
that there are hotels located in Big Bend, the fact that Vega was
traveling alone and was not obviously a tourist added to the
agents’ reasonable suspicion of Vega.
Highway 385 is also known for being a major corridor for alien
and narcotics smuggling. A road’s reputation as a smuggling route
contributes to the reasonableness of an agent’s suspicion. See
United States v. Nichols, 142 F.3d 857, 867 (5th Cir. 1998). In
United States v. Rodriguez-Rivas, 151 F.3d 377, 380 (5th Cir.
1998), this court specifically noted that the record revealed that
9
“U.S. Highway 385 is frequently used by smugglers in an attempt to
avoid the regularly-manned checkpoint on U.S. Highway 67.” The
district court recognized this in Vega’s suppression hearing, and
Agent Ferguson testified that he was aware of the road’s
reputation.
Another factor, the previous experience of the agents, also
supports the reasonableness of the agents’ suspicion in this case.
The district court noted that Agent Ferguson has worked for the
United States Border Patrol for thirteen years, while Agent
Hernandez has been an agent for twelve years. The district court
further noted that Agent Ferguson has been involved in somewhere
between fifty and one hundred smuggling cases in the area. Vega
does not question the experience of these border patrol agents--
thus, this factor is properly considered as support for the agents’
stop of Vega’s vehicle. See Aldaco, 168 F.3d at 151-52.
Vega’s behavior also contributes to the reasonableness of the
agents’ suspicion. Agent Ferguson testified that Vega appeared
startled upon seeing the agents, slowed his car drastically, and
failed to acknowledge them after making eye contact. Furthermore,
while the agents were following him, Vega slowed down from 70 miles
per hour to approximately 35 or 40 miles per hour. In general,
Vega appeared preoccupied with the agents, constantly checking his
rearview mirror, and swerving his vehicle slightly when he would
check his rearview mirror.
10
We recognize that the failure of a driver to make eye contact
with officers cannot support an officer’s reasonable suspicion.
See United States v. Chavez-Villareal, 3 F.3d 124, 127 (5th Cir.
1993). However, we have held that an individual’s “noticeable
deceleration in the presence of a patrol car can contribute to
reasonable suspicion, even though drivers often slow when they see
law enforcement personnel.” Villalobos, 161 F.3d at 291. Here,
Vega slowed drastically when the agents began following him, to a
point thirty to forty miles below the posted speed limit. While
repeatedly looking into a rearview mirror is not suspicious conduct
when it is the result of an officer’s actions, for instance, if the
patrol car is “tailgating” the vehicle, see United States v. Jones,
149 F.3d 364, 370-71 (5th Cir. 1998), Vega repeatedly looked into
the rearview mirror when Agents Ferguson and Hernandez were
following four car lengths behind his vehicle. This, combined with
the drastic reduction in speed, contributes to the agents’
reasonable suspicion.
The district court also considered other factors, including
the fact that Vega’s Hispanic appearance was incongruous with the
non-Hispanic name on the vehicle’s registration. This court has
affirmed the use of this incongruity as a factor supporting the
reasonableness of an agent’s suspicion. United States v. Morales,
191 F.3d 602, 605 (5th Cir. 1999), cert. denied, 120 S. Ct. 1211
(2000). The district court also noted that Agent Ferguson found it
suspicious that Vega’s vehicle was registered in Midland, given his
11
knowledge that Midland often serves as a staging point for illegal
trafficking. These factors, combined with the Brignoni-Ponce
factors discussed above, all support the reasonableness of the
agents’ suspicion in this case.
III
In conclusion, we acknowledge that several of the factors that
contribute to reasonable suspicion are commonplace occurrences and
reactions that might apply to innocent citizens, especially when
considered singularly. But when all of these factors are
considered of one piece, the outline of a picture begins to emerge,
especially to the eyes of trained law enforcement officers, which
create -– not probable cause –- but reasonable suspicion. This is
the case here.
We thus agree with the district court that, based on the
totality of the circumstances and, in particular, the Brignoni-
Ponce factors, Agents Ferguson and Hernandez possessed sufficient
reasonable suspicion to warrant their stop of Vega’s vehicle. The
rulings and the judgment of the district court are therefore
A F F I R M E D.
12