United States v. Francisco Rico-Soto , 690 F.3d 376 ( 2012 )

Case: 09-30648 Document: 00511943510 Page: 1 Date Filed: 08/02/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 2, 2012
No. 09-30648
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO RICO-SOTO,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
Before SMITH, GARZA, and SOUTHWICK, Circuit Judges
JERRY E. SMITH, Circuit Judge:
Francisco Rico-Soto was convicted, after being arrested at a traffic stop,
of harboring illegal aliens. He appeals the admission of evidence obtained from
the warrantless stop, claiming lack of reasonable suspicion. We affirm.
Case: 09-30648 Document: 00511943510 Page: 2 Date Filed: 08/02/2012
No. 09-30648
I.
U.S. Border Patrol Agent Harold Gill was patrolling Interstate 10 near
Lake Charles, Louisiana, waiting at a spot where he could look into passing
vehicles as they slowed at a curve. That morning, he watched a fifteen-
passenger van with “Paisanos” on it drive by, and he remembered that the Pai-
sanos company had recently started transporting illegal aliens. That “intel”
came from reports in his and other Border Patrol sectors, where Paisanos vans
were stopped at least three times in the past five months. At least one of those
times, sixteen aliens were found in the van, and on at least one other occasion,
there was evidence consistent with alien smuggling.
Gill had worked for the Border Patrol for 19½ years, ten of which were in
Lake Charles. Interstate 10 is a major travel route for smuggling illegal aliens
to the Eastern Seaboard. From his experience, Gill knew that smugglers often
used fifteen-passenger vans. He also was aware that vans that had already
dropped off illegal aliens on the East Coast were usually passing westbound
through his area of Interstate 10 between 9:00 a.m. and 12:00 p.m. on a return
trip to the Mexican border. He knew that such vans usually carried a driver, a
co-driver, and one or two illegal aliens who had to return to the point of origin
for some reason.
Gill had several concerns with the van. First, he saw the passengers
seated spaced out among the four rows instead of being grouped together. He
followed the van for three miles, during which time he checked the license plates
and found that the van was registered not to the transportation company but to
a woman named “Daisy Cruz” with a Houston address. In Gill’s experience,
most vans used to transport illegal aliens are registered to unaffiliated women
rather than to the company itself. Still, during the entire time he followed the
van, Gill did not see Rico-Soto, the driver, commit any traffic violation.
Determining that the van was likely returning from dropping off illegal
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aliens, Gill signaled for it to pull over, and Rico-Soto immediately complied. Gill
asked for the passengers’ immigration documents, but they admitted that they
had none. Rico-Soto produced a log of the passengers along with $7070 that he
said was to be given to the transportation company after he deducted his pay.
II.
Rico-Soto was charged with harboring aliens in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii) and (B)(i). He moved to suppress the evidence seized during
the stop, arguing it violated the Fourth Amendment. The district court held an
evidentiary hearing and denied the motion. After a jury trial, Rico-Soto was
found guilty. On appeal, he challenges only the denial of his motion to suppress.
III.
A law enforcement officer must have reasonable suspicion to justify war-
rantless investigatory stops of vehicles. United States v. Banuelos-Romero, 597
F.3d 763, 766 (5th Cir. 2010). Several Supreme Court opinions guide our inquiry
into whether a vehicle’s seizure is “reasonable” under the Fourth Amendment:
(1) “[T]he officer must be able to point to specific and articulable facts which,
when taken together with rational inferences from those facts, reasonably war-
rant that intrusion,” Terry v. Ohio, 392 U.S. 1, 21 (1968); and (2) “[a]ny number
of factors may be taken into account in deciding whether there is reasonable
suspicion to stop a car in the border area. Officers may consider [the Brignoni-
Ponce factors].”1 We review a district court’s determinations of reasonable suspi
1
The Brignoni-Ponce factors, see United States v. Brignoni-Ponce, 422 U.S. 873, 884-87
(1075), include (1) the proximity to the border; (2) the characteristics of the area in which the
agents encounter the vehicle; (3) the usual patterns of traffic on that road; (4) the arresting
agent’s previous experience with criminal activity; (5) information about recent border cross-
ings in the area; (6) the vehicle’s appearance; (7) the driver’s behavior; and (8) and the number,
appearance, and behavior of the passengers, United States v. Rodriguez, 564 F.3d 735, 741 (5th
(continued...)
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cion de novo. United States v. Zavala, 541 F.3d 562, 574 (5th Cir. 2008).
The government presented several different elements that, when com-
bined, led Gill reasonably to suspect criminal activity. First, he was positioned
on Interstate 10, a major corridor for alien-smuggling between hub cities such
as Houston and the East Coast. In particular, smugglers are often traveling
westbound through Gill’s region in the mid-morning, returning from eastbound
trips. Gill has pulled over vans transporting illegal aliens on this route multiple
times. A road’s reputation as a smuggling route helps support an agent’s reason-
able suspicion. See United States v. Aldaco, 168 F.3d 148, 151-52 (5th Cir. 1999).
Though these pieces of information provide only limited support for reasonable
suspicion, the combination does show some factors Gill noticed that raise an
experienced agent’s suspicions in spite of the fact that tremendous amount of
legitimate traffic uses Interstate 10 as well.
1
(...continued)
Cir. 2009).
We recognize that because this stop was conducted by a roving Border Patrol agent for
purposes of preventing illegal immigration, applying the factors in Brignoni-Ponce, 422 U.S.
at 884-87, might be appropriate even though the stop occurred far from any border. See, e.g.,
United States v. Nichols, 142 F.3d 857, 865 (5th Cir. 1998) (“[W]here the agents do not have
reason to believe the vehicle has come from the border, ‘the remaining [Brignoni-Ponce] factors
must be examined charily.’”); United States v. Inocencio, 40 F.3d 716, 722-23 (5th Cir. 1994)
(“[I]f the agents do not base the stop on the vehicle’s proximity to the border, Brignoni-Ponce
may still be satisfied if other articulable facts warrant reasonable suspicion.”). This stop,
however, occurred considerably farther from the border than did the stops in cases in which
the Brignoni-Ponce factors are usually applied, and Brignoni-Ponce specified it was listing
factors for “deciding whether there is reasonable suspicion to stop a car in the border area.”
Brignoni-Ponce, 422 U.S. at 884. No specific distance limit on Brignoni-Ponce has been set,
see United States v. Orozco, 191 F.3d 578 (5th Cir. 1999) (discussing applicability of Brignoni-
Ponce beyond 100 miles from the border), and we have not determined whether to cease using
Brignoni-Ponce at some distance or whether that framework guides our analysis of any roving
Border Patrol stop regardless of location.
We need not determine today whether the Brignoni-Ponce description of reasonable
suspicion has a geographical limit, because applying either that test or the more general
framework for investigative stops from Terry v. Ohio, 392 U.S. 1 (1968), leads to the same
result: Rico-Soto’s conviction is affirmed.
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Various characteristics of the van and its passengers added to Gill’s suspi-
cion. The van was a fifteen-passenger model of the kind often used in transport-
ing illegal immigrants. Moreover, it was registered not to a transportation com-
pany but to a woman with a Houston address. Vans used to transport illegal
aliens are often registered to an individual woman rather than to the transporta-
tion company. The fact that this van was supposedly part of a company fleet, yet
not registered to the company, understandably raised Gill’s suspicions even
further.
The quantity and arrangement of the passengers supported Gill’s sus-
picion, although that factual detail provides little support on its own. First,
when vans return from dropping off illegal aliens on the East Coast, they bring
back a few aliens who could not pay or whom the company told to return. Gill
noticed there were only a few passengers in the carSSabout the right number as
would be expected for a return tripSSand that they were seated in separate rows
rather than clustered as people usually sit. That seating arrangement struck
Gill as unusual, although without the other suspicious factors, it would be con-
sistent with how strangers sit when using a commercial van service.
Finally, the strongest individual pieces of information come from the label-
ing on the van. Gill noticed the name “Paisanos” on the side; his agency’s intel
agent reported that Paisanos was a new player in transporting illegal aliens.
Labeling and other information shown on a vehicle, in conjunction with relevant
intel reports, can help raise reasonable suspicion.2 The information was based
on reports generated in various Border Patrol sectors, although Gill had not
participated in any stops of Paisanos vans, and none had occurred in the Lake
2
See United States v. Puac-Zamora, No. 94-10966, 1995 WL 337783 (5th Cir. 1995)
(unpublished) (deciding that border patrol agents had articulable suspicion when they stopped
a van with “Guatemala” on its front license plate and Florida on its back plate, based in part
on intelligence reports that said that aliens from Guatemala were being moved from Florida
to North Carolina).
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Charles area. Thus, in addition to the previous information he had gathered,
Gill knew this van was operated by an organization that had recently become
active in transporting illegal aliens.
Gill has worked for the Border Patrol for 19½ years, ten of which were in
Lake Charles. He has pulled over vans transporting illegal aliens in that area
multiple times. His extensive experience allows him to recognize suspicious cir-
cumstances that less-familiar outside observers might never realize were note-
worthy.3 With his extensive experience, the combination of factors given above,
many of which would be innocuous on their own, led Gill reasonably to suspect
criminal activity.
Not only does each of these facts allow a reasonable officer to recognize
criminal activity is afoot, but they trigger the various Brignoni-Ponce factors as
well. None of the factors alone is dispositive, and courts must analyze them as
a whole, rather than each in isolation. Rodriguez, 564 F.3d at 741. Because this
stop occurred more than fifty miles from the border, we examine the remaining
factors charily. United States v. Olivares-Pacheco, 633 F.3d 399, 402 (5th Cir.
2011).
Despite the lack of proximity to the border, examining the facts from the
above analysis under the remaining Brignoni-Ponce factors demonstrates that
Gill’s stop was justified. First, he made the stop on Interstate 10, a major alien-
smuggling corridor. Second, the van was traveling westbound through his loca-
tion in the mid-morning, the main time, route, and direction Gill’s past experi-
ence has shown smugglers pass by through the area. Third, Gill’s extensive
experience in the Lake Charles area and with the Border Patrol generally leaves
him keenly able to aggregate subtle clues the rest of us miss. Fourth, intel
3
See United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001) (per curiam) (“Fac-
tors that ordinarily constitute innocent behavior may provide a composite picture sufficient
to raise reasonable suspicion in the minds of experienced officers.”).
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reports showed “Paisanos” vans had recently become active in transporting ille-
gal aliens and, though not yet apprehended in the Lake Charles region, they had
been caught transporting illegal aliens in other places. Fifth, the vehicle was a
fifteen-passenger van, often used in smuggling aliens, and was registered to an
individual woman in Houston rather than the company to whose fleet it was
labeled as belonging. Finally, although the driver committed no traffic violation,
the passengers were the expected number and orientation for an alien smuggling
operation’s return trip.
Rico-Soto highlights a couple of decisions, attempting to show the evidence
is insufficient to demonstrate reasonable suspicion, but the evidence here is
stronger than in those cases. In United States v. Melendez-Gonzales, 727 F.2d
407, 410-11 (5th Cir. 1984) agents stationed sixty miles north of the Mexican
border saw a pickup truck followed by a heavily loaded automobile. They
believed the cars were traveling in a lead car-load car pattern on a known smug-
gling route. The court found that insufficient for reasonable suspicion: “Riding
low” is not given determinative weight; there was no evidence besides just seeing
the cars close together to support that they were traveling as “lead car-load car”;
there was no erratic driving or suspicious behavior from the passengers or tips
from informants or features on the vehicle that made it a likely transport for ille-
gal aliens. Id. at 412.
In United States v. Moreno-Chaparro, 180 F.3d 629, 631 (5th Cir. 1999),
border patrol agents were also stationed sixty miles north of the Mexican border
when a truck passed by their checkpoint and slowed, and the driver looked sur-
prised to see the patrol car. The truck was registered to a woman, but the court
found nothing strange about a man’s driving a car registered to a woman. Id. at
632. The agent testified that Chevrolets in general were suspect, although he
could find no reason to suspect that car in particular: no passengers, not modi-
fied in any obvious way, not riding low, and not overly clean or dirty. Id.7
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at 632-33.
The present case features stronger evidence pointing to reasonable suspi-
cion than does either of those addressed above. First, the vehicles in those cases
had no features that made them more likely than other similar vehicles to be
transporting illegal aliens. Both decisions expressly state this fact. Here, Gill
had learned from intel reports that vans labeled “Paisanos” were involved in
transporting illegal aliens; that information had been gleaned from other per-
sons making stops of such vans and finding illegal aliens.4 That feature made
this van even more suspicious than fifteen-passenger vans normally are, setting
this case apart from the others.
Additionally, although it is not unusual for a man to be driving a car regis-
tered to a woman, or for a car to be headed toward the city in which it is regis-
tered, that does not make it common for a transportation company to be register-
ing its vans in an individual woman’s name rather than its own. Thus, Gill’s tes-
timony that vans used to transport illegal aliens are often registered to women
rather than to the transportation company has more weight here than does the
fact that a man was driving a Chevrolet registered to a woman did in Moreno-
Chaparro. The fact that Rico-Soto was driving on Interstate 10 alone would not
be too helpful, because it is the most direct route back to Houston, where the van
is registered. It is more meaningful, however, when we add that the highway is
a known alien-smuggling corridor and that the van was driving through at the
proper time, with the expected number of peopleSSwho were sitting in the right
4
The government cites numerous cases to show that Gill was entitled to rely on the
intel reports, either under the collective-knowledge doctrine or otherwise. There is no need
to address that, because Rico-Soto never argues that Gill should have been prohibited from
relying on that information. The closest Rico-Soto gets to that contention is one sentence that
states that Gill did not have personal knowledge that Paisano vans were transporting illegal
aliens, but because Rico-Soto never argues that that makes the reliance impermissible, the
statement is an attempt to reduce the weight this court gives to Gill’s intel. Nonetheless, per-
mitting Gill to use his knowledge from the intelligence report comports with previous decisions
of this circuit. See, e.g., Puac-Zamora, 1995 WL 337783, at *1-2.
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configurationSSfor a vehicle returning from dropping off illegal aliens on the
Eastern Seaboard.
The identifying mark of “Paisanos” on the van, along with the intel reports
explaining that such vans were transporting immigrants, plus multiple pieces
of supporting evidence, distinguish this case from those where no reasonable
suspicion was found. Here we had intel reports explaining “Paisanos” vans were
transporting aliens, and a “Paisanos” van with suspicious registration driving
a known immigrant-trafficking route at the time persons transporting illegal
aliens would be expected to pass through that area. This confluence of facts,
along with numerous small pieces of confirmatory evidence, justifies an agent
with Gill’s extensive experience in stopping Rico-Soto.
The judgment is AFFIRMED.
9