United States v. Delgado , 99 F. App'x 493 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 7, 2004
_____________________
Charles R. Fulbruge III
No. 03-40495 Clerk
Summary Calendar
_____________________
United States of America,
Plaintiff - Appellee,
versus
Ivan Delgado,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas, Laredo
District Court No. L-02-1569
_________________________________________________________________
Before DAVIS, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
Appellant Ivan Delgado was convicted on March 31, 2002, of
possessing with intent to distribute more than 100 kilograms of
marijuana, in violation of 21 U.S.C. § 841 (a)(1), (b)(1)(B).
Delgado appeals his conviction, arguing that the district court
erred by denying his motion to suppress evidence. For the
reasons set forth below, we AFFIRM Mr. Delgado’s conviction.
Factual Background
*
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this opinion should not be published and is not precedent except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.
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At approximately 4:39 a.m. on October 31, 2002, agents at
the United States Border Patrol Stations in Hebbronville and
Freer, Texas were alerted that vehicular sensors had been
activated on a lightly traveled ranch road between the two
stations.2 The sensors indicated that the vehicle was traveling
east toward the “T” junction of the ranch road and Farm to Market
Road 2050 (FM 2050). Border Patrol Agent Ruben Reyes from the
Hebbronville station responded to the alert by driving north on
FM 2050 and stopping south of where a vehicle traveling on the
ranch road would exit, while Border Patrol Agent Julio Reyes from
the Freer station responded by driving south on FM 2050 and
stopping north of where a vehicle traveling on the ranch road
would exit.
After stopping his car, Agent Julio Reyes noticed a white
pickup truck traveling north on FM 2050. When Agent Julio Reyes
turned to follow the vehicle, the driver pulled over and asked
for directions. Agent Julio Reyes questioned the driver and
searched the vehicle, but found nothing. Agent Julio Reyes
notified Agent Ruben Reyes about the white pickup, told him he
had inspected it and had found no violations.
At approximately 5:15 a.m., Agent Ruben Reyes saw a brown
pickup truck traveling south on FM 2050 and contacted Agent Julio
2
FM 2050 connects U.S. Highway 59 with State Highway 359.
U.S. Highway 59 connects Laredo, Texas, with Freer, Texas. State
Highway 359 connects Laredo, Texas with Hebbronville, Texas.
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Reyes to ask if he had seen it as well. Agent Julio Reyes said
he had not seen any vehicle pass him except the brown pickup.
Because the brown pickup had not passed Agent Julio Reyes, and
there was no other road accessible to FM 2050, Agent Ruben Reyes
concluded that it must have exited from the ranch road.
Agent Ruben Reyes also testified that there was no visible
load in the brown pickup, but that the bed of the truck appeared
to be riding lower than would be expected of an unloaded truck of
that type. Agent Ruben Reyes testified that, because he did not
recognize the brown pickup he checked the vehicle’s registration
and learned that it was not registered locally, but in Skidmore,
Texas. Agent Ruben Reyes then stopped the driver, Mr. Delgado,
and questioned him. While speaking with Mr. Delgado, Agent Ruben
Reyes noticed an odor of marijuana in the pickup. He then
searched the vehicle and found 1,194 pounds of marijuana and
$4,980.
Both Agent Ruben Reyes and Agent Julio Reyes had worked for
the Border Patrol agency for two years.
Discussion
Delgado argues the district court erred by denying his
motion to suppress evidence seized in violation of the Fourth
Amendment. He contends that Agent Ruben Reyes did not have
reasonable suspicion of criminal activity sufficient to warrant
the investigatory stop of his vehicle.
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In reviewing the denial of a motion to suppress, this court
examines a district court’s factual findings for clear error, and
its legal conclusions, including whether there was reasonable
suspicion for a stop, de novo. United States v. Jacquinot, 258
F.3d 423, 427 (5th Cir. 2001). A factual finding is not clearly
erroneous if it is plausible in light of the record as a whole.
Id. The evidence presented at a suppression hearing must be
viewed in the light most favorable to the prevailing party, which
in this case is the government. See id.A Border Patrol agent on a roving patrol may conduct a
temporary investigatory stop of a vehicle if that agent is aware
of specific articulable facts, together with rational inferences
from those facts, that reasonably warrant suspicion that the
vehicle’s occupant is engaged in criminal activity. United
States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975). This court
examines the totality of circumstances surrounding the stop in
evaluating whether reasonable suspicion exists. United States v.
Galvan-Torres, 350 F.3d 456, 457 (5th Cir. 2003).
Relevant factors that may be used in assessing reasonable
suspicion include: 1) the known characteristics of a particular
area; 2) the proximity to the border; 3) usual patterns of
traffic on the road; 4) previous experience with alien traffic;
5) information about recent illegal trafficking in aliens or
drugs in the area; 6) the behavior of the driver; 7) the
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appearance of the vehicle; and 8) the number, appearance, and
behavior of the passengers. Unites States v. Jacquinot, 258 F.3d
423, 427-28 (5th Cir. 2001) (citing Brignoni-Ponce, 422 U.S. at
884). When evaluating the characteristics of an area to
determine reasonable suspicion, this court may consider whether a
road is known for smuggling activity. Jacquinot, 258 F.3d at
428-29. A belief that two vehicles are traveling in tandem in a
lead car and load car arrangement may also contribute to a
finding of reasonable suspicion. See United States v. Inocencio,
40 F.3d 716, 720,723 (5th Cir. 1994)(two vehicles traveling
closely together in a private ranch area with the first making
frequent U-turns contributed to reasonable suspicion). An
agent’s inability to recognize a vehicle on a road that is
generally only used by local residents may also indicate
reasonable suspicion, as can the fact that the vehicle is
traveling at an unusual time of day. United States v.
Villalobos, 161 F.3d 285, 289 (5th Cir. 1998). A vehicle which
appears to be heavily loaded may also contribute to a finding of
reasonable suspicion. United States v. Orozco, 191 F.3d 578, 582
(5th Cir. 1999).
The district court concluded that the Border Patrol had
reasonable suspicion to stop Mr. Delgado’s vehicle. The order
noted that the sensor triggered by the car was “put there
precisely because [the ranch] road is known as a detour around
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the checkpoints.” The district court also noted that the agents
had strong reason to believe Mr. Delgado’s vehicle had triggered
the sensors, the agents had experience with criminal activity,
they knew his vehicle was not a local vehicle, and it was unusual
for a vehicle to be traveling that early in the morning on that
isolated road.
The transcript of the suppression hearing reveals no clear
error by the district court in its findings of fact. Similarly,
this court finds no error in the district court’s legal
conclusion that Agent Ruben Reyes had reasonable suspicion to
warrant a stop of Mr. Delgado’s vehicle.
Mr. Delgado asserts that the totality of the circumstances
surrounding the stop was insufficient to warrant reasonable
suspicion. Although there was nothing in Mr. Delgado’s behavior
that would have created suspicion, and the record did not
establish Mr. Delgado’s proximity to the border when he was
stopped, the balance of the Brignoni-Ponce factors weighs in
favor of a finding that there was reasonable suspicion to warrant
a stop.
First, the known characteristics of the area in which Mr.
Delgado was stopped contributed to a reasonable suspicion of
criminal activity. Agent Ruben Reyes’s knowledge of local roads,
the location of the sensors, and Mr. Delgado’s location gave
Agent Ruben Reyes strong reason to believe Mr. Delgado had taken
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the ranch road. Both agents testified that the Border Patrol had
installed sensors on the ranch road because it was often used for
smuggling illegal aliens and narcotics. The agents further
testified that the ranch road was popular with smugglers because
it allowed drivers to travel to northern Texas while avoiding
Border Patrol checkpoints on Highway 59 and Highway 359. From
this information Agent Ruben Reyes could have suspected criminal
activity.
Second, the arresting officer, Agent Ruben Reyes, had
experience with criminal activity, having worked for the Border
Patrol for two years. Third, Agent Ruben Reyes could have
suspected illegal activity when he heard Agent Julio Reyes report
that he had just seen another pickup truck traveling in the same
isolated area at that unusually early time. Agent Ruben Reyes’s
familiarity with criminal activity in the border area could have
reasonably led him to infer that the white pickup truck was
acting as a scout vehicle by driving ahead of the brown pickup
truck to look for police officers.
Fourth, the ranch road was rarely used by any non-ranch
vehicles and Mr. Delgado’s truck was registered in Skidmore,
Texas. Agent Ruben Reyes testified that he knew the vehicles
connected with the local ranches by sight. Therefore, he could
have found it suspicious that a vehicle from another part of
Texas, with no connection to the local ranches, was using that
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particular road.
Fifth, Mr. Delgado’s truck appeared to be riding lower than
would be expected of a truck without a visible load, suggesting a
heavy hidden load. Agent Ruben Reyes testified that the
appearance of the vehicle, in light of his past law enforcement
experience with heavily loaded vehicles, led him to suspect that
the vehicle might be transporting illegal aliens. Agent Ruben
Reyes knew that Mr. Delgado’s vehicle had most likely taken the
isolated ranch road, that the ranch road was often used for
smuggling illegal aliens, that the vehicle was not registered
locally, that the vehicle appeared to be carrying a hidden load,
and that it had been preceded by a possible scout vehicle.
Considering Agent Ruben Reyes’s background working for the Border
Patrol, and the early hour of the stop, he could have reasonably
suspected criminal activity.
This case is somewhat similar to, but distinguishable from,
United States v. Melendez-Gonzalez,3 in which this Court found no
reasonable suspicion to warrant a stop. In Melendez-Gonzalez,
Border Patrol agents in Marfa, Texas, were alerted that traffic
had passed over a sensor located about 25 miles to the south at
4:57 a.m. Approximately 25 minutes later the agents saw two
pickup trucks, driving within 50 yards of each other, enter
Marfa. The first truck stopped in a parking lot while the second
3
727 F.2d 407 (5th Cir. 1987).
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continued on. The agents stopped the second vehicle, which they
testified appeared to be riding low. In Melendez-Gonzales this
court concluded that it could not consider the evidence that the
vehicle appeared to be riding low. However, more recently this
court has explained that this factor may indeed be considered.
See United States v. Lopez-Gonzalez, 916 F.2d 1011, 1015 (5th
Cir. 1990)(noting error in this court’s cases giving little
weight or no weight to the fact that a vehicle was riding low or
appeared to be heavily loaded); see also United States v.
Guerrero-Barajas, 240 F.3d 428, 433 (5th Cir. 2001).
Furthermore, there was no indication in Melendez-Gonzales, as
there was in the present case, that the road was especially
isolated or that it was generally only used to access private
land. Finally, in Melendez-Gonzales, the Border Patrol agents
did not know that the defendant’s vehicle was not a local
vehicle, as the agents did in the present case.
Conclusion
This court finds that Agent Ruben Reyes had reasonable
suspicion of criminal activity to warrant a stop of Mr. Delgado’s
vehicle. The district court properly denied Mr. Delgado’s motion
to suppress, and we AFFIRM Mr. Delgado’s conviction.
AFFIRMED.
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