United States v. Ernesto Guerrero-Barajas , 240 F.3d 428 ( 2001 )

REYNALDO G. GARZA, Circuit Judge:

Ernesto Guerrero-Barajas (“Barajas”), a United States citizen, appeals the federal district court’s denial of his motion to suppress. For the reasons stated below, we affirm the federal district court’s denial of Barajas’s motion.

1. Factual and Procedural Background

In the early morning of April 21, 1999, Barajas and nine illegal aliens were traveling north on Farm to Market Road (“FM”) 88 in a large burgundy colored sedan (“Sedan”). Upon reaching State Road (“SR”) 186, Barajas turned left and began traveling west.

At the same time, United States Border Patrol agents Hector Salazar and Jesus Ramos (collectively “Agents”) were on a roving patrol traveling east on SR 186 west of FM 88. The Agents were in a marked vehicle, with their headlights on, observing traffic. At the time, agent Hector Salazar (“Salazar”) was a thirteen-year veteran with the United States Border Patrol, and agent Jesus Ramos had been with the United States Border Patrol for twenty-eight months. The Agents were aware that this was a common route and area for alien smuggling and approximately thirty-five miles north of our border with Mexico. Moreover, Salazar had apprehended illegal aliens in the area and conducted investigatory stops of low riding vehicles from which he had apprehended illegal aliens.

At approximately 12:30 a.m., after not seeing any vehicles for a few minutes, the Agents noticed a set of headlights coming toward them in the eastern horizon. The Agents pulled their vehicle over onto the south side of SR 186 and positioned it so that their vehicle faced a northeasterly direction. They were on an unimproved shoulder about ten feet from SR 186’s eastbound lane. With their headlights on, the Agents waited until the vehicle passed. As the vehicle passed, the Agents observed the Sedan, traveling at a normal speed, riding low in the back with heavily tinted windows that prohibited them from viewing the inside.

The Agents decided to follow the Sedan. They turned their vehicle around and headed west on SR 186. The Sedan drastically slowed and began to weave from side to side within its lane. The Agents attempted to ascertain the number of occupants in the Sedan, but were unsuccessful because of the heavily tinted windows. The Agents decided to make an investigatory stop; they turned their emergency patrol lights on. The Sedan immediately pulled off the road. As it came to a sudden stop, the Sedan’s doors flew open. Barajas, the driver, and nine illegal aliens jumped out and attempted to flee. The Agents stopped their vehicle on the Sedan’s passenger side; they apprehended Barajas and the nine illegal aliens.

The Agents took Barajas and the nine illegal aliens into custody. They read them their Miranda¹ rights. Barajas signed an 1-214 form acknowledging that the Agents had read him his rights and that he waived those rights. Barajas then admitted that he was transporting illegal aliens and that he knew his conduct was illegal.

In the indictment, the Grand Jury charged Barajas with two counts of violating 8 U.S.C. § 1324(a)(l)(A)(ii) and (A)(v)(II). Barajas filed a motion to suppress all of the evidence from the investigatory stop and all statements made thereafter on the basis that the Agents’ suspicion that the Sedan’s occupants were involved in illegal activity was not reasonable, and thus, violated his Fourth Amendment right to be free from unreasonable searches and seizures. On June 22, 1999, the federal district court heard the motion. The trial court denied the motion based on the totality of the circumstances known to the Agents when they made the investigatory stop and the Agents’ experience in evaluating such circumstances. Pursuant to Federal Rule of Criminal Procedure 11(a)(2), Barajas voluntarily entered a conditional plea of guilty subject to his right to appeal the denial of his motion to suppress. On October 5, 1999, the trial court accepted Barajas’s guilty plea and entered its judgment. Later that same day Bara-jas filed his notice of appeal.

2. Discussion

The appellant, Barajas, argues that the investigatory stop violated his Fourth Amendment right to be free from unreasonable searches and seizures because the Agents’ suspicion that the Sedan’s occupants were involved in illegal activity was not reasonable. We disagree. We hold that the Agents did not violate Barajas’s Fourth Amendment rights when they conducted the investigatory stop because the Agents’ suspicion that the occupants were involved in illegal activity was reasonable based on the totality of the circumstances known to the Agents when they stopped the Sedan and their experience in evaluating such circumstances. Accordingly, the federal district court did not err when it denied Barajas’s motion to suppress.

2.1 Standard of Review

We review a federal district court’s findings of fact on a motion to suppress for clear error. See United States v. Ceniceros, 204 F.3d 581, 584 (5th Cir.2000). We view the evidence in the light most favorable to the prevailing party in the trial court. See United States v. Zapata-Ibarra, 212 F.3d 877, 880 (5th Cir.2000). A federal district court’s findings of fact are not clearly erroneous unless we have a definite and firm conviction that a mistake has been committed. See id. A federal district court’s conclusion that reasonable suspicion of illegal activity existed is a legal conclusion subject to de novo review.² See id. at 880-81.

2.2 The Federal District Court did not err when it denied Barajas’s motion to suppress

Generally, on a motion to suppress, the defendant has the burden of proving, by a preponderance of the evidence, that the evidence in question was obtained in violation of her constitutional rights. See United States v. Roch, 5 F.3d 894, 897 (5th Cir.1993); United States v. de la Fuente, 548 F.2d 528, 533 (5th Cir.1977), cert denied 431 U.S. 932, 97 S.Ct. 2640, 53 L.Ed.2d 249 (1977). There are situations, however, where the burden shifts to the government. See id. When the government searches or seizes a defendant without a warrant, the government bears the burden of proving, by a preponderance of the evidence, that the search or seizure was constitutional.³ See id. Therefore, in the instant case, since the Agents conducted an investigatory stop without a warrant, the government bears the burden of proving, by a preponderance of the evidence, that the investigatory stop was constitutional.

“The Fourth Amendment provides that ‘[t]he right of the people to be free in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....’” Bond v. United States, 529 U.S. 334, 120 S.Ct. 1462, 1464, 146 L.Ed.2d 365 (2000) (quoting U.S. Const, amend. IV). A United States Border Patrol agent’s temporary detention of an occupant of a vehicle for investigatory purposes while on roving patrol is constitutional if, at a minimum, the agent reasonably suspects that an occupant of the vehicle is involved in illegal activity. See United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Zapata-Ibarra, 212 F.3d at 881; United States v. Chavez-Chavez, 205 F.3d 145, 147 (5th Cir.2000); Ceniceros, 204 F.3d at 584. An unparticu-larized suspicion or hunch will not suffice, but proof that an occupant of the vehicle is involved in illegal activity by a preponderance of the evidence is not required. See United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989); Ceniceros, 204 F.3d at 584; United States v. Gonzalez, 190 F.3d 668, 671 (5th Cir.1999). Rather, the agent’s suspicion is reasonable if it is based on specific and articulable facts and the rational inferences that can be drawn therefrom. See Brignoni-Ponce, 422 U.S. at 884, 95 S.Ct. 2574; Zapatar-Ibarra, 212 F.3d at 881; Chavez-Chavez, 205 F.3d at 147; Ceniceros, 204 F.3d at 584.

A court may take into account any number of facts when determining whether an agent’s suspicion was reasonable. See id. These facts may include, but are not limited to: (1) an agent’s experience in detecting illegal activity; . (2) proximity of the area where the investigatory stop occurred to an international border; (3) the area’s known characteristics for illegal activity; (4) information about recent illegal activity in the area; (5) the area’s usual traffic patterns; (6) erratic • driving or obvious attempts to evade agents; (7) the type of vehicle and other characteristics of the vehicle known to the agents to be frequently used in illegal activity including whether the vehicle is riding low or its suspension is modified; (8) the number, appearance, and behavior of the occupants of the vehicle. See id. No single fact is determinative. See id. A court must examine each case based on the totality of the circumstances known to the agent when she made the investigatory stop and her experience in evaluating such circumstances. See id. The Fourth Amendment does not require an agent to eliminate all reasonable possibilities of legal activity before conducting an investigatory stop, nor must every fact weigh in favor of illegal activity for an agent to reasonably suspect that an occupant of the vehicle is involved in an illegal activity. See Zapatar-Ibarra, 212 F.3d at 884.

The Agents were aware of and identified specific and articulable facts that led them to suspect that the occupant of the Sedan was involved in the illegal activity of transporting illegal aliens. The Agents were aware that this was a common route and area for alien smuggling and approximately thirty-five miles north of our border with Mexico. It was 12:30 a.m. Lawful vehicles infrequently and typically do not travel in that area at that time of day. Salazar had apprehended illegal aliens in the area and conducted investigatory stops of low riding vehicles from which he had apprehended illegal aliens. The Agents testified that the Sedan was riding low, and we presume they were not lying about this fact because when Barajas stopped, he and nine illegal aliens exited the Sedan. The Agents could not see the number, appearance, or behavior of the Sedan’s occupants, if there were any other than the driver because of the Sedan’s heavily tinted windows. Finally, the driver slowed and began to swerve within his lane once the Agents began to follow him.

The government carried its burden. Based on the totality of the circumstances known to the Agents when they made the investigatory stop and their experience in evaluating such circumstances, the greater weight of the evidence supports a finding that these specific and atriculable facts, and the rational inferences that can be drawn therefrom, would reasonably lead an agent to suspect that an occupant of the Sedan was involved in the illegal activity of transporting illegal aliens. Therefore, the Agents did not violate Barajas’s Fourth Amendment right to be free from unreasonable searches and seizures when they conducted the investigatory stop because their suspicion that the occupants of the Sedan were involved in illegal activity was reasonable. Accordingly, the federal district court did not err when it denied Barajas’s motion to suppress. We specifically hold, however, that tinted or heavily tinted windows alone do not rise to the level of reasonable suspicion.

3. Conclusion

Based on the foregoing, we AFFIRM the federal district court’s denial of Bara-jas’s motion to suppress.

1 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2 . Barajas raises the issue that the federal district court's findings of fact are clearly erroneous, however he fails to argue that the underlying facts are disputed. Thus, our review is limited to a de novo review of whether reasonable suspicion of illegal activity existed.

3 . We recognize, as did this Court in United States-v. Rocha, that United States v. Castaneda, 951 F.2d 44, 48 (5th Cir.1992) contains language regarding the burden of proof in a suppression hearing when the government searches or seizes a defendant without a warrant that is inconsistent with the language in United States v. de la Fuente. Since we are bound to follow the decision of the first panel, and United States v. de la Fuente came nearly fifteen years before United States v. Casteneda, United States v. de la Fuente controls. See Ryals v. Estelle, 661 F.2d 904, 906 (5th Cir.1981).