United States v. Hernandez , 193 F. App'x 338 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
In the August 8, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 05-50490
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
EDUARDO HERNANDEZ,
Defendant-Appellant.
***************
_______________
m 05-50493
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JUAN CARLOS DIAZ,
Defendant-Appellant.
***************
_______________
m 05-50494
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JONATHAN SANCHEZ,
Defendant-Appellant.
***************
_______________
m 05-50495
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
GERARDO RESENDIZ,
Defendant-Appellant.
***************
2
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m 05-50496
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CRISTIAN FELIPE QUEVEDO,
Defendant-Appellant.
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Appeals from the United States District Court
for the Western District of Texas
m 2:03-CR-253-2
_____________________________________
Before SMITH, GARZA, and CLEMENT, of illegal smuggling activity. We affirm.
Circuit Judges.
I.
JERRY E. SMITH, Circuit Judge:* On the morning of March 5, 2003, each of
the appellants, as well as two other defendants,
Eduardo Hernandez, Juan Diaz, Jonathan Michael Santoyo and Luis Alvarez, were
Sanchez, Gerardo Resendiz, and Cristian Que- driving on highways in the vicinity of Dryden,
vado appeal the partial denial of their motion Texas. The vehicles operated by the
to suppress, on Fourth Amendment grounds, defendants were pick-up trucks, extended-cab
evidence obtained pursuant to the Border Pa- trucks, and SUV’s.
trol’s roving stop of their vehicles on suspicion
Border Patrol and Bureau of Immigration
and Customs Enforcement (“BICE”) agents
*
Pursuant to 5TH CIR. R. 47.5, the court has stopped each of the vehicles within fifty miles
determined that this opinion should not be pub- of the Mexican border based on suspicious ac-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
3
tivity they had observed.1 Between about 4:20 convinced that the defendants were part of the
and 5:20 a.m. the agents watched the vehicles, Nolasco-Resendiz Organization, an
apparently operating in tandem, drive first to- alien-smuggling operation based in Houston
ward and then away from the border. Because and known for employing tactics similar to
(1) the number of vehicles was highly unusual what the agents had observed.
for the normally-deserted roads in the area, es-
pecially given the time of day, (2) the vehicles Because of this suspicion, the agents, who
followed one another (approximately one mile already had placed Resendiz and Sanchez in
apart), making all of the same turns, (3) each patrol cars, took the keys from the remaining
of the vehicles had a CB radio antenna (a defendants and placed them on the hood of
known characteristic of smuggling convoys), each car while defendants remained in their ve-
(4) some of the drivers appeared to be spying hicles. The agents then decided to take Re-
on or attempting to distract the attention of sendiz and Sanchez to the Sanderson Border
law enforcement, and (5) the roads on which Patrol Station and, returning their keys, told
the vehicles were traveling were notorious the remaining defendants to follow them there.
drug- and alien-smuggling routes, the agents At the station, defendants were handcuffed to
eventually pulled each vehicle over and ques- their steering wheels. The agents led them
tioned each driver regarding his travel plans. inside the station one at a time for further
questioning.
After learning the defendants’ identities, lis-
tening to their imprecise descriptions of their During questioning, Santoyo told the
travel plans, detecting a pungent body odor in agents that he and the others were in the pro-
one of the vehicles, and discovering CB radios, cess of smuggling aliens that morning. San-
multiple cell phones, a tarp, and water jugs in toyo also gave the agents the possible location
two of the vehicles,2 the agents became of illegal aliens that he and the other defen-
dants had dropped off on the side of the high-
way to avoid being caught by law enforce-
1
The officers who observed the relevant activi- ment. A large group of aliens was subsequent-
ties and were involved in stopping the vehicles were ly found in the area Santoyo had specified.
BICE special agent Adam Wilson, BICE criminal
investigator Armando Montes, Jr., and Border Defendants were indicted for transporting
Patrol agents Kelly Helms and Santiago Gonzalez. illegal aliens in violation of 8 U.S.C. § 1324At the time, Wilson had five and one-half years of and aiding and abetting the same in violation
experience as a BICE agent, preceded by three of 18 U.S.C. § 2. Santoyo pleaded guilty of
years of experience as a Border Patrol agent. the first count of the three-count indictment,
Montes had been a criminal investigator with BICE charging him with aiding and abetting the il-
for seven years, and before that was a Border legal transportation of aliens in violation of
Patrol agent for six years. Gonzalez had been
§§ 1324(a)(1)(a)(ii) and(a)(2). The remaining
employed by Border Patrol for fifteen years.
Helms had three years of experience as a Border
Patrol agent.
2
(...continued)
2
The validity of the initial search of the two of whether the stop of each vehicle was supported
relevant vehicles, separate from the larger question by a reasonable suspicion of criminal activity, is
(continued...) not an issue in this case.
4
defendants, Hernandez, Diaz, Sanchez, Resen- press: Factual findings are accepted unless
diz, Quevado, and Alvarez, filed a motion to clearly erroneous, and the district court’s ulti-
suppress all evidence against them, arguing mate conclusion as to the constitutionality of
that the initial investigatory stops of their ve- law enforcement action is reviewed de novo.”
hicles were not supported by a reasonable sus- United States v. Jackson, 390 F.3d 393, 396
picion of criminal activity and that their con- (5th Cir. 2004), vacated, 544 U.S. 917 (vacat-
tinued detention constituted unlawful arrests ing judgment in light of Booker), judgment
without probable cause. The motion sought to reinstated, 138 F. App’x 632 (5th Cir.), cert.
suppress even the statements of Santoyo, who denied, 126 S. Ct. 317 (2005).
neither joined the motion nor otherwise chal-
lenged his stop or arrest. “The Fourth Amendment prohibits ‘unrea-
sonable searches and seizures’ by the Govern-
The district court granted in part and de- ment, and its protections extend to brief inves-
nied in part the motion to suppress. The court tigatory stops of persons or vehicles that fall
ruled that each initial stop was supported by short of traditional arrest.” United States v.
reasonable suspicion and that all information Arvizu, 534 U.S. 266, 273 (2002). “A United
discovered during those stops was therefore States Border Patrol agent’s temporary deten-
admissible. The court also held that the sub- tion of an occupant of a vehicle for investiga-
sequent detentions of the defendants, starting tory purposes while on roving patrol is consti-
when Resendiz and Sanchez were placed in tutional if, at a minimum, the agent reasonably
patrol cars and the agents confiscated the car suspects that an occupant of the vehicles is in-
keys of the remaining defendants, were unlaw- volved in illegal activity.” United States v.
ful arrests unsupported by probable cause. Guerrero-Barajas, 240 F.3d 428, 432 (5th
The court ruled, however, that the movants Cir. 2001).
did not have standing to contest the admissi-
bility of Santoyo’s post-arrest statements be- We agree with the district court that the ini-
cause his arrest did not violate their Fourth tial stop of each defendant was supported by a
Amendment rights. reasonable suspicion of criminal activity. In
United States v. Brignoni-Ponce, 422 U.S.
Hernandez, Diaz, Sanchez, Resendiz, and 873, 884-85 (1975), the Court explained that
Quevado subsequently entered conditional
guilty pleas, pending the outcome of their ap- [a]ny number of factors may be taken into
peal of any suppression issues. These defen- account in deciding whether there is rea-
dants now appeal the court’s ruling on the val- sonable suspicion to stop a car in the bor-
idity of the initial investigatory stops and on der area. Officers may consider the charac-
their standing to challenge the admissibility of teristics of the area in which they encounter
Santoyo’s statements. The government does a vehicle. Its proximity to the border, the
not appeal the court’s ruling regarding the un- usual patterns of traffic on the particular
lawfulness of the continued detentions. road, and previous experience with alien
traffic are all relevant. They also may con-
II. sider information about recent illegal border
“We use a two-tiered standard of review crossings in the area. The driver’s behavior
for appeals from the denial of a motion to sup- may be relevant, as erratic driving or
5
obvious attempts to evade officers can added).
support a reasonable suspicion. Aspects of
the vehicle itself may justify suspicion . . . . Accordingly, we adopt the reasoning and
In all situations the officer is entitled to as- conclusions of the district court’s thorough
sess the facts in light of his experience in order of June 4, 2004, and we AFFIRM the
detecting illegal entry and smuggling. partial denial of the motion to suppress.
(Internal citations and quotations omitted.)
Given the wealth of factors that Border Pa-
trol and BICE agents are allowed to consider,
we would be hard-pressed to determine that
the actions of the agents in this case were un-
reasonable. The number, behavior, and char-
acteristics of the defendants’ vehicles, particu-
larly considering that the area in which they
were traveling was a notorious alien-smugg-
ling route, led the experienced agents to sus-
pect foul play. The agents in fact spent an
hour observing the defendants’ actions before
pulling the vehicles over, gathering enough in-
formation to allow what initially may have
been a mere hunch to grow into reasonable
suspicion.
We likewise agree with the district court
that the appellants lack standing to challenge
the admissibility of Santoyo’s statements on
Fourth Amendment grounds. As the district
court held, appellants cannot establish that
Santoyo’s statements were the fruits of their
own illegal arrests; rather, they were the fruits
of Santoyo’s separate arrest, which he has not
challenged. “Fourth Amendment rights are
personal rights,” and “suppression of the prod-
uct of a Fourth Amendment violation can be
successfully urged only by those whose rights
were violated by the search itself, not by those
who are aggrieved solely by the introduction
of damaging evidence. Coconspirators and
codefendants have been accorded no special
standing.” Alderman v. United States, 394
U.S. 165, 171-72, 174 (1969) (emphasis
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