United States v. Ismael Salazar-Martinez , 710 F.2d 1087 ( 1983 )

CLARK, Chief Judge:

The government appeals from the suppression of evidence acquired in a warrant-less arrest of Ismael Salazar-Martinez. The district court held that the Immigration and Naturalization Service (INS) agent who arrested Salazar did not have the reasonable suspicion required to justify the stop of his vehicle. Finding the ruling to be erroneous, we reverse.

On October 5, 1982, Salvador Molina, an agent assigned to the INS anti-smuggling unit, received a tip from a confidential informant that two vehicles would be transporting undocumented aliens to Houston via Interstate Highway 10 sometime that morning. Molina stationed his unmarked car on an embankment overlooking 1-10, at a point 15 miles east of San Antonio, Texas, and approximately 165 miles from the United States-Mexico border.

1-10 is a major interstate highway, traversing the southern United States from Florida to California. The interconnection of 1-10 and 1-35 at San Antonio makes this the direct interstate freeway from Nuevo Laredo, Mexico to Houston. Molina was aware that 1-10 is a frequently used route for the smuggling of people and contraband from Mexico to Houston and points beyond.

After maintaining surveillance for a brief period, Molina decided that he had missed the two vehicles. As he started to drive down the embankment, he noticed a 1973 Lincoln Continental, one of the largest stock passenger vehicles manufactured, with Texas license plates, heading east at a rate in excess of the speed limit. When the ■driver saw Molina’s vehicle on the embankment, he decelerated. As he passed Molina’s auto, he glanced over quickly and then looked forward. The passenger in the front seat who was seated near the passenger-side door and the two in the back seat who were seated in the extreme corners of that seat looked straight ahead.

Molina testified that because of the reactions and unusual locations of the persons visible in the large vehicle he became suspicious, drove onto the highway and, during a several minute period, positioned his car immediately behind, ahead, and then alongside the Continental. The driver of the Lincoln looked over at Molina “nervously,” but the three passengers continued to look ahead. Molina observed that the passengers appeared “unkempt,” “unwashed,” “uncombed,” and “shabbily dressed.” More significantly, Molina saw two additional passengers in the rear and one additional passenger in the front who were kneeling on the floorboard with their upper torsos and heads down on the seats. Molina stopped the Continental. Upon questioning the occupants, Molina learned that Salazar and the six passengers were undocumented, that Salazar had smuggled them into the country and was transporting them to Houston for a fee.

Molina further testified that his tip did not involve a Continental, that such luxury autos were not typically used to smuggle aliens, that he had never seen an alien smuggled by kneeling on the floorboard of a vehicle with his head on the seat, and that it was an entirely normal reaction for anyone speeding to slow down and glance nervously at a vehicle which was thought to contain a law enforcement officer.

The standard by which the district court and this court are bound to gauge the lawfulness of the actions of Agent Molina is whether he was aware of specific articula-ble facts, together with rational inferences from those facts that reasonably warranted suspicion that the vehicle contained aliens who may be illegally in the country. United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607 (1975). We are bound to look at the totality of the circumstances, considering Molina’s 13 years of experience, his participation in the arrest of more than 200 transporters of aliens during his career, the time of the stop, the characteristics of the area, its proximity to the border, previous experience with alien traffic along that route, the characteristics of the vehicle, and the number and behavior of its occupants. United States v. Ballard, 600 F.2d 1115, 1119 (5th Cir.1979).

We know that Agent Molina had been alerted by an anonymous telephone call to expect the transportation of illegal aliens along Interstate 10 on this particular day. Agent Molina knew that the portion of Interstate 10 where the stop occurred connects with Interstate 35 to form a nonstop route from Mexico, to Houston, Texas. Agent Molina knew that San Antonio, just to the east of the stop point, was a hub of smúggling activity. But we also know that the stop occurred 165 miles from the Texas-Mexico border. Proximity to the border is a factor in the Brignoni-Ponce calculus, but it is not controlling if other articulable facts give rise to the requisite reasonable suspicion. United States v. Lamas, 608 F.2d 547, 549 (5th Cir.1979). If there is no proof that the agent reasonably believed that the vehicle has crossed the border in a case which occurs some distance from that line of demarcation, then we are instructed to “examine charily the remaining facts marshalled by the government to support the agent[’s] suspicions.” United States v. Pena-Cantu, 639 F.2d 1228, 1229 (5th Cir.1981). Even examining these facts charily nonetheless produces a firm belief that they are sufficient to create in Agent Molina a reasonable suspicion of illegal activity.

We know that Agent Molina knew that the Lincoln automobile he observed was a luxury type car, large enough to ride six or seven passengers comfortably in normal seated positions. We know that he observed that all of this car’s occupants were of Mexican descent and looked extremely unkempt.¹ Agent Molina had found that most of the thousands of aliens he had detected when traveling do not comb their hair. They appear unwashed and unkempt. Molina knew that the passengers in this vehicle possessed all of these characteristics. Their shabby dress was also consistent with the typical appearance of illegal aliens.

In the three to four minutes that Agent Molina had the Lincoln under observation before he stopped it, he noted that the occupants of the back seat were seated in the extreme corners of the seat. Prior to the time he stopped the vehicle he was able to observe that the car was occupied not only by the four passengers who intended to be seen by persons outside the car, but also by three more people who were uniquely positioned with their knees on the floorboard of the vehicle, their heads down and upper torsos laid on the seats. From the fact that these concealed passengers were moving their heads from time to time he could tell that they were obviously awake. Yet they continued to ride in that semi-concealed position during the entire time they were under observation.

From all of these pre-stop observations, Officer Molina reasonably deduced that the car contained aliens seeking to avoid suspicion and detection, and that their behavior was typical of illegal aliens who were being transported. The trial judge made the following unchallenged findings:

As he was following the Continental, Molina observed something unusual. There appeared to be additional persons in the vehicle, with their hands and knees on the floorboards and with their heads face down on the seat. There appeared to be one additional person in the front and two additional persons in the back who were situated in this manner. Molina could observe them when they moved around and their heads occasionally bobbed up. This behavior seemed quite unusual in a luxury car that could comfortably seat six or seven people. In addition, from his experience, Molina knew that it was characteristic of illegal aliens to attempt to conceal themselves from view.

Molina believed that the vehicle contained illegal aliens based on his experience, the shabby dress and unkempt appearance of the visible passengers, and the fact that three of the passengers were evidently concealing themselves, with their hands and knees on the floorboards. Accordingly, Molina determined to stop the vehicle to determine the status of its occupants.

These findings clearly support the conclusion that Agent Molina possessed specific articulable facts which generated rational inferences and the requisite reasonable suspicion that the Lincoln contained illegal aliens.

Salazar relies in particular upon United States v. Orona-Sanchez, 648 F.2d 1039 (5th Cir.1981), and United States v. Pacheco, 617 F.2d 84 (5th Cir.1980). In these cases, the fact that the passengers were “hunkered down” was considered relevant but insufficient. Both cases are distinguishable because of the unique and concealing nature of the posture of both the visible and unvi-sible passengers in this case. Taken with the other factors present in this stop — the large, luxury automobile and its incongruous, unkempt occupants — makes this ease different from Orona-Sanchez and Pacheco.

In the course of colloquy with counsel at the end of the proof, the district judge stated,

I congratulate Mr. Molina on being a good border patrolman....

[D]own here on this level, I am just a sergeant and I do what the captain tells me to do; and they have told me plain that this case won’t stand up; and so ... If the Government wants to take it up, I will be delighted if they reverse it.

And Mr. Casseb [Asst. U.S. Attorney], I encourage you, if you have any hopes I am wrong, take it up and let them write some good law for Mr. Molina.

He further stated that the reason he concluded the case to be too thin to pass muster was because he could hear this court saying that it was just as consistent for those men to be saying their prayers as to be illegal aliens concealing their presence.

The district judge’s true instincts were the correct ones. Agent Molina reasonably, properly concluded that the passengers were illegal aliens who had assumed their unusual and concealed positions that were bearable and swapable with those seated erectly for a lengthy period of time while they were unlawfully driven over interstate highways from Mexico to Houston, Texas. Nothing in our prior case law indicates that Agent Molina’s conduct was other than in the highest tradition of proper law enforcement. We accordingly grant the trial judge’s wish and reverse his decision.

REVERSED.

1 . When asked if the passengers looked as though their hair was windblown from having ridden in a car with the windows down, Molina testified, “The only people I have ever encountered that looked like that were people that hadn’t combed their hair in 3 or 4 days. I think windblown is one thing, and waking up without combing your hair looks different.”