United States v. Luis Cervantes

Case: 14-50208 Document: 00513155652 Page: 1 Date Filed: 08/14/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-50208 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, August 14, 2015
Lyle W. Cayce
Plaintiff–Appellee, Clerk
v.
LUIS GERARD CERVANTES, also known as Luis Gonzalez Cervantez-
Martinez,
Defendant–Appellant.
Appeal from the United States District Court
for the Western District of Texas
Before SMITH, PRADO, and OWEN, Circuit Judges.
OWEN, Circuit Judge:
Luis Gerard Cervantes appeals his conviction on the ground that the
Border Patrol agents who conducted the traffic stop that led to his arrest lacked
reasonable suspicion and violated the Fourth Amendment. The district court
denied Cervantes’s motion to suppress. We affirm.
I
The relevant facts are not in dispute. On a Wednesday in early October,
at approximately 8:30 a.m., Cervantes was driving a Chevrolet Trailblazer
eastbound on Interstate 20 (I-20) near Odessa, Texas, with five passengers.
That morning, Border Patrol Agents David Collier and Carlos Ramirez were
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No. 14-50208
on roving patrol and had parked in the median of I-20 when Cervantes’s vehicle
passed them. Collier noticed that the Trailblazer was sagging in the rear or
perhaps overloaded, and both agents noticed that the vehicle had multiple
occupants. The agents decided to investigate further.
As the agents neared Cervantes, he switched from the left lane to the
right lane and began traveling behind an eighteen-wheeler semi-truck that
was being driven about ten to fifteen miles under the seventy-five-miles-per-
hour speed limit. The agents considered this odd behavior because there were
no vehicles in the left lane ahead of the Trailblazer when it slowed its speed
and pulled behind the eighteen-wheeler. As the agents approached
Cervantes’s vehicle, they saw that a passenger was in the rear cargo area of
the vehicle where there was no seat. They then checked the vehicle’s records
and learned that it was registered in Morton, Texas, a town north of Odessa.
The agents drove their patrol car parallel to Cervantes’s and observed that the
rear passengers were “dirty” and did not appear to have shaved or bathed in
several days, while the driver and front passenger appeared “clean.” Ramirez
also noticed that the rear passengers were wearing dirty jackets and heavy
clothing while the front passenger and Cervantes were wearing short sleeves.
The agents themselves were attired in short sleeves, which they considered
appropriate for the weather that day. While driving next to Cervantes’s
vehicle, the agents honked six times. Cervantes did not respond to the honking
but looked forward and kept his hands tightly on the steering wheel. Neither
Cervantes nor his front-seat passenger looked in the direction of the agents’
vehicle despite the agents’ attempts to obtain their attention.
Collier and Ramirez conducted a traffic stop. As Officer Collier
approached the Trailblazer, he saw burlap backpacks, one of which was torn,
and he saw small brick bundles wrapped with brown tape. These bundles were
consistent with the way in which illegal drugs were often packaged and
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smuggled, and he believed the bundles contained marijuana. Ultimately, it
was determined that approximately 170 pounds of marijuana in the backpacks
that had been carried across the border by the rear passengers. Cervantes and
all of the passengers were arrested and charged with aiding and abetting
possession with intent to distribute marijuana.
Cervantes filed a motion to suppress alleging he was stopped without
reasonable suspicion in violation of the Fourth Amendment. After a hearing,
the district court denied the motion. Cervantes entered a conditional guilty
plea and reserved his right to appeal the ruling on his motion to suppress. The
district court sentenced Cervantes to fifty-one months in prison and three
years of supervised release. Cervantes appeals the denial of his motion to
suppress.
II
In reviewing the district court’s disposition of the motion to suppress, we
review legal conclusions de novo, including the conclusion that Collier and
Ramirez had reasonable suspicion to stop Cervantes, and factual findings for
clear error. 1 We view the evidence presented at a pretrial hearing on a motion
to suppress in “the light most favorable to the prevailing party,” in this case
the Government. 2
III
Border Patrol agents on roving patrol “may detain vehicles for
investigation only if they are aware of specific, articulable facts, together with
rational inferences from those facts, that reasonably warrant suspicion that
1United States v. Garza, 727 F.3d 436, 440 (5th Cir. 2013) (citing United States v.
Rangel-Portillo, 586 F.3d 376, 379 (5th Cir. 2009) and United States v. Rodriguez, 564 F.3d
735, 740 (5th Cir. 2009)).
2 Rodriguez, 564 F.3d at 740.
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the vehicle is involved in illegal activities.” 3 We weigh the factors outlined by
the Supreme Court in Brignoni-Ponce 4 to determine if reasonable suspicion
existed to stop a vehicle in a border area. 5 The factors that may be considered
include:
(1) the area’s proximity to the border; (2) characteristics of the
area; (3) usual traffic patterns; (4) the agents’ experience in
detecting illegal activity; (5) behavior of the driver; (6) particular
aspects or characteristics of the vehicle; (7) information about
recent illegal trafficking of aliens or narcotics in the area; and
(8) the number of passengers and their appearance and behavior. 6
We look to the totality of the circumstances, and not every factor must weigh
in favor of reasonable suspicion for it to be present. 7 “Factors that ordinarily
constitute innocent behavior may provide a composite picture sufficient to
raise reasonable suspicion in the minds of experienced officers.” 8
The Supreme Court has explained that evaluation of these “factors in
isolation from each other does not take into account the ‘totality of the
circumstances,’ as our cases have understood that phrase.” 9 The Supreme
Court has rejected the proposition that if behavior was “itself readily
3Garza, 727 F.3d at 440 (quoting United States v. Cardona, 955 F.2d 976, 980 (5th
Cir. 1992)) (internal quotation marks omitted).
4 United States v. Brignoni-Ponce, 422 U.S. 873, 884-85 (1975).
5 Garza, 727 F.3d at 440.
6United States v. Soto, 649 F.3d 406, 409 (5th Cir. 2011) (citing United States v.
Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001) (per curiam)).
7Garza, 727 F.3d at 440 (citing United States v. Zapata-Ibarra, 212 F.3d 877, 884 (5th
Cir. 2000) and United States v. Hernandez, 477 F.3d 210, 213 (5th Cir. 2007)).
8 United States v. Olivares-Pacheco, 633 F.3d 399, 402 (5th Cir. 2011) (internal
quotation marks omitted) (quoting Jacquinot, 258 F.3d at 427-28).
9 United States v. Arvizu, 534 U.S. 266, 274 (2002).
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susceptible to an innocent explanation [the behavior] was entitled to ‘no
weight.’” 10 The Supreme Court has observed that
Terry . . . precludes this sort of divide-and-conquer analysis. The
officer in Terry observed the petitioner and his companions
repeatedly walk back and forth, look into a store window, and
confer with one another. Although each of the series of acts was
“perhaps innocent in itself,” we held that, taken together, they
“warranted further investigation.” 11
The Supreme Court held in United States v. Sokolow that factors which by
themselves were “quite consistent with innocent travel” collectively amounted
to reasonable suspicion. 12
The agents encountered Cervantes’s vehicle near Penwell, Texas, on I-
20 traveling east toward Odessa. In determining whether agents had reason
to believe that the occupants of a vehicle had recently crossed the border, our
court has said that proximity to the border is “a paramount factor in
determining reasonable suspicion,” 13 and when a stop takes place more than
fifty miles from the border, “we look at the remaining factors most carefully to
ensure the stop complied with the . . . Fourth Amendment.” 14 The distance of
this stop from the border between Mexico and the United States weighs against
reasonable suspicion.
10 Id.
11 Id. (citing Terry v. Ohio, 392 U.S. 1, 9, 22 (1981)).
12 490 U.S. 1, 7-8 (1989).
13 United States v. Garza, 727 F.3d 436, 441 (5th Cir. 2013) (quoting United States v.
Zapata-Ibarra, 212 F.3d 877, 881 (5th Cir. 2000)) (internal quotation marks omitted); see also
id. (“[T]his Court has repeatedly emphasized that one of the vital elements in the Brignoni-
Ponce reasonable suspicion test is whether the agents had reason to believe that the vehicle
in question had recently crossed the border.” (alteration in original) (quoting United States
v. Melendez-Gonzalez, 727 F.2d 407, 411 (5th Cir. 1984))).
14United States v. Soto, 649 F.3d 406, 410 (5th Cir. 2011) (quoting United States v.
Orozco, 191 F.3d 578, 581 (5th Cir. 1999)) (internal quotation marks omitted).
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That the stop occurred more than fifty miles from the border is not
dispositive, however. 15 We have said that “even where a vehicle is beyond the
fifty mile benchmark, the fact that the northbound vehicle was traveling from
the direction of the Mexico-United States border can be a legitimate factor
when viewed in conjunction with other factors.” 16 There are other factors
present in this case that support reasonable suspicion.
Though the point at which the vehicle was stopped was approximately
200 miles from the border between Mexico and Texas, the district court found
that Interstate 20, on the west side of Odessa, where this stop occurred, “is well
known for its prevalence of drug and alien smuggling.” The evidence in the
record supports that finding. In addition, Officer Collier testified that he had
made more than 100 stops in the area west of Odessa on Interstate 20 that had
resulted in discovering undocumented aliens and illegal drugs on “regular
occasions.”
Our court has also recognized that this portion of Interstate 20 is “a
favored route for illegal alien smugglers.” 17 In another decision from this court,
we recognized that there was evidence that the same location at which
Cervantes was stopped, on Interstate 20 near Penwell, Texas, was “notorious
for alien smuggling and narcotics.” 18
15See United States v. Varela-Andujo, 746 F.2d 1046, 1047 (5th Cir. 1984)
(determining reasonable suspicion existed even though the stop occurred over 170 miles from
the Mexican border); United States v. Salazar-Martinez, 710 F.2d 1087, 1088 (5th Cir. 1983)
(determining reasonable suspicion existed even though the stop occurred 165 miles from the
Texas-Mexico border).
16 Soto, 649 F.3d at 410.
17 Orozco, 191 F.3d at 582; see also Unites States v. Puac-Zamora, 56 F.3d 1385, 1385
(5th Cir. 1995) (per curiam) (unpublished but precedential under 5TH CIR. R. 47.5).
18 United States v. Morales, 191 F.3d 602, 604 (5th Cir. 1999).
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In United States v. Orozco and United States v. Morales, this court
determined that reasonable suspicion existed for stops on I-20 near Penwell,
Texas, where Cervantes was stopped. In Orozco, the driver was traveling
eastbound on I-20 at about 9:30 a.m. on a Sunday in a pick-up truck. 19 Orozco,
the front passenger, was slumped over, and the driver was looking straight
ahead. 20 The bed of the truck was covered with a blue tarp. 21 The truck was
riding low and weaving back and forth on the road. 22 The agent began
following the truck, pulled up next to the truck, and honked his horn. 23 The
driver did not look at the agent, although the agent was not sure if the driver
heard the honking. 24 The agent noticed that the spare tire was in the backseat
with a jacket draped over it, which indicated to the agent that there was
something in the truck bed. 25 The agent testified that “he had stopped
numerous loads of aliens on that stretch of road, generally between 9:00 and
10:00 in the morning.” 26
The Orozco court stated that because the stop took place between 200-
300 miles from the border, the proximity factor did not “cut[] in favor of a
finding of reasonable suspicion.” 27 However, other factors weighed in favor of
reasonable suspicion: (1) the area of I-20 was known for smuggling, and the
agent “had personally captured approximately 20 loads of aliens in the same
19 Orozco, 191 F.3d at 579-80.
20 Id. at 580.
21 Id.
22 Id.
23 Id.
24 Id. at 580 & n.2.
25 Id. at 580.
26 Id.
27 Id. at 581.
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area over the previous five month period”; 28 (2) the agent testified that “the
majority of smugglers passed through that particular stretch of I-20 on
weekends between 9 and 10 a.m., the precise day and time in which Orozco’s
pickup was traveling,” and Orozco was traveling eastbound, which was
consistent with other smuggling loads; 29 and (3) the truck was heavily loaded
and weaving; the truck bed was covered by a tarp, “a common technique
employed by smugglers to hide illegal aliens,” and the spare tire was in the
back seat. 30 It is unclear how much weight the court gave to Orozco’s behavior
(slumping in his seat) or to the driver’s failure to acknowledge the agent after
he honked, but these factors were part of the court’s analysis. 31 The court
determined that, based on the totality of the circumstances, reasonable
suspicion existed. 32
In Morales, our court determined reasonable suspicion existed for a stop
on I-20 near Penwell, Texas. 33 The court accorded weight in favor of reasonable
suspicion to (1) the agent’s 28 years of experience and the fact that “[i]n the
past year alone, [he] had detained approximately 600 illegal aliens on this
28 Id. at 582.
29 Id.
30 Id.
31 Id. (“The trial judge noted that the ‘driver’s behavior’ in addition to agent Bollier’s
observation that Orozco was ‘trying to hide’ were factors warranting Bollier’s continual
pursuit of the vehicle. Prior to stopping the truck, Bollier pulled next to the truck, rolled
down his window to display his uniform and honked at the driver; however, this attempt to
grab the driver’s attention failed—yet another sign that something was amiss. We have held
that while slouching, alone, may not be a significant factor we look to overall behavior of the
vehicle driver. Moreover the avoidance of eye contact may or may not be entitled weight; and
it is simply one factor to consider in observing overall behavior. Although some of the factors
relied on by the trial judge would not alone amount to reasonable suspicion, reasonable
suspicion determinations are not limited to analysis of one factor.” (citations omitted)).
32 Id. at 583.
33 United States v. Morales, 191 F.3d 602, 603 (5th Cir. 1999).
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stretch of the highway”; 34 (2) the pick-up truck had underinflated tires and
bounced as it passed over bumps in the road, indicating that it was heavily
loaded; 35 and (3) the truck bed had a fiberglass cover. 36 The court mentioned
the following facts, but it is unclear if the court gave weight to them: (1) “[t]he
majority of the smuggling detected by the Agent occurred between 9:30-10:00
a.m.[, and the driver] passed by the Agent during that time period,” 37 and (2)
the driver did a “doubletake” when he saw the agent’s marked vehicle, slowed
down, and after the agent started following him, weaved back and forth on the
road. 38
Based on the record in the present case, the factors other than proximity
to the border weigh in favor of reasonable suspicion. Collier testified that
Cervantes’s vehicle appeared to be sagging in the rear, and in his experience,
that is indicative of narcotics smuggling because smuggling vehicles usually
have multiple occupants. While Collier acknowledged that the vehicle did not
show any indication that it had recently “gone off road,” and that he did not
know if there was an alternative explanation for the vehicle riding low, such
as the vehicle’s shocks were worn, given Collier’s field experience observing
weighed-down vehicles, the fact that Cervantes’s vehicle was riding sagging in
the rear is part of the totality of the circumstances that gave rise to reasonable
suspicion. 39
34 Id. at 604, 606.
35 Id. at 605-07.
36 Id. at 607.
37 Id. at 605.
38 Id.
39 See United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975) (stating that whether
a vehicle “appear[s] to be heavily loaded” is a factor to consider when determining reasonable
suspicion); United States v. Olivares-Pacheco, 633 F.3d 399, 405 (5th Cir. 2011) (determining
reasonable suspicion did not exist for stop in which vehicle was “neither over- nor under-
loaded”); United States v. Guerrero-Barajas, 240 F.3d 428, 433 (5th Cir. 2001) (according
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Collier testified that, by his estimate, when Cervantes passed the agents,
Cervantes was traveling “at or approximately at highway speeds.” As the
agents neared Cervantes, although there were no vehicles in front of him or
attempting to pass him, Cervantes quickly switched from the left lane to the
right lane and pulled behind a semi-truck that was traveling about ten to
fifteen miles under the speed limit. Collier stated that, while not illegal, this
type of driving behavior was consistent with other smuggling loads he had
seen, and it was particularly significant because Cervantes had time to pass
the semi-truck but instead chose to follow very close behind it. While driving
parallel to Cervantes’s vehicle in their marked Border Patrol vehicle, the
agents honked six times. Ramirez testified that Cervantes had to know they
were Border Patrol agents because Cervantes had passed them when they were
some weight to the fact that the vehicle was “riding low”); United States v. Ceniceros, 204
F.3d 581, 585 (5th Cir. 2000) (“A vehicle’s heavily-laden appearance may support a finding of
reasonable suspicion and corroborate an informant’s tip.”); United States v. Cardona, 955
F.2d 976, 981 (5th Cir. 1992) (stating the fact that a vehicle is riding low “is a permissible
factor for evaluation”); United States v. Garcia, 732 F.2d 1221, 1225 (5th Cir. 1984)
(determining reasonable suspicion existed and according some weight to fact that “the
camper appeared heavily loaded”); United States v. Garza, 544 F.2d 222, 224-25 (5th Cir.
1976) (per curiam) (determining reasonable suspicion existed for stop sixty-plus miles from
the border in part because “the car appeared to be heavily loaded”); United States v. Lara,
517 F.2d 209, 210-11 (5th Cir. 1975) (determining reasonable suspicion existed for stop
approximately two miles from the border in part because the “vehicle was riding low and
appeared to be heavily loaded”); cf. United States v. Moreno-Chaparro, 180 F.3d 629, 632-33
(5th Cir. 1998) (determining reasonable suspicion did not exist for stop in part because “[t]he
agent could not point to anything suspicious about the truck. It contained no visible
passengers, it had not been modified in an obvious way, and it was not riding low to the
ground”). But see United States v. Melendez-Gonzalez, 727 F.2d 407, 412 (5th Cir. 1984)
(“[E]ven if relevant, the fact that defendant’s car was supposedly ‘riding low’ has not been
given determinative weight in border patrol cases.” (footnote omitted)); United States v.
Orona-Sanchez, 648 F.2d 1039, 1040, 1042 (5th Cir. Unit A 1981) (determining reasonable
suspicion did not exist for stop on “lightly traveled state roadway” approximately fifty miles
from the border when, among other things, the vehicle was heavily loaded, and the driver
“slowed down considerably” and began driving “somewhat erratically”); United States v.
Pacheco, 617 F.2d 84, 86 (5th Cir. 1980) (determining reasonable suspicion did not exist for
stop and attributing “little weight” to fact that vehicle was riding low).
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parked in the median. During this time, Cervantes looked forward and kept
his hands tightly on the steering wheel.
Collier stated that he had not used the honking technique many times
before, so he did not opine as to whether it was normal for Cervantes to
continue looking forward. Collier conceded that it was safe for Cervantes to
keep his eyes on the road, but Ramirez testified the lack of eye contact
indicated to him that the occupants wanted to “shield the[m]selves from us.”
Collier further testified that while semi-trucks often travel below the speed
limit, it was suspicious that Cervantes began traveling below the speed limit.
Cervantes’s decision to decelerate and pull behind the semi-truck as the agents
neared his vehicle even though no other vehicles were near him 40 and his
40 See United States v. Neufeld-Neufeld, 338 F.3d 374, 377, 382 (5th Cir. 2003)
(according weight to the defendant’s considerable deceleration after seeing the marked patrol
car, and the defendant did not appear to be speeding beforehand); United States v. Espinosa-
Alvarado, 302 F.3d 304, 306-07 (5th Cir. 2002) (per curiam) (according some weight to the
driver’s behavior in response to the agents’ presence—“looking excessively in his mirrors and
slowing the [vehicle] to 10 miles per hour below the speed limit”); United States v. Jacquinot,
258 F.3d 423, 429 (5th Cir. 2001) (per curiam) (“Although deceleration in the presence of a
patrol car may be completely innocent behavior, this court has noted that such behavior may
be suspicious if the driver was not speeding when first observed.” (citing United States v.
Villalobos, 161 F.3d 285, 291 (5th Cir. 1998))); Guerrero-Barajas, 240 F.3d at 433
(determining reasonable suspicion existed and according some weight to fact that “the driver
slowed and began to swerve within his lane once the Agents began to follow him”); United
States v. Zapata-Ibarra, 212 F.3d 877, 879, 882 (5th Cir. 2000) (determining reasonable
suspicion existed in part because the defendant was initially traveling at the speed limit and
“decelerated considerably” when the agent neared the defendant’s vehicle); Morales, 191 F.3d
at 605 (noting the defendant slowed down after passing by the marked patrol vehicle);
Villalobos, 161 F.3d at 291 (determining reasonable suspicion existed for a stop in part
because the vehicle “decelerated noticeably when Agent Hall pulled in front of [the driver],
even though [the driver] had not been speeding” and “dropped back a full mile or more”);
Cardona, 955 F.2d at 978, 981 (stating the defendant slowed down “considerably” after the
agents began following him); cf. United States v. Arvizu, 534 U.S. 266, 275-76 (2002) (stating
“a driver’s slowing down, stiffening of posture, and failure to acknowledge a sighted law
enforcement officer” may add to reasonable suspicion in some circumstances); Zapata-Ibarra,
212 F.3d at 882-83 (“[The driver’s] deceleration and swerving on a [two-lane] road at
nighttime, in response to a rapidly accelerating vehicle with its high-beam lights on, weighs,
at best, only slightly in favor of the reasonableness of [the agent’s] suspicions.”); United States
v. Nichols, 142 F.3d 857, 866, 868 (5th Cir. 1998) (taking into account fact that the driver
“was traveling at an unusually slow speed”); Garcia, 732 F.2d at 1225 & n.4 (determining
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failure to acknowledge the agents’ presence after the honking 41 are entitled to
reasonable suspicion existed and according some weight to “the unusually slow speed of [the]
vehicle,” about forty to forty-five miles per hour on Interstate 35). But see Ceniceros, 204 F.3d
at 583, 585 (determining reasonable suspicion existed and giving weight to the fact that the
vehicle “drifted within its lane” but not to the fact that the vehicle’s “speed fluctuated between
55 and 70 miles per hour”); United States v. Chavez-Villareal, 3 F.3d 124, 126-27 (5th Cir.
1993) (determining reasonable suspicion did not exist for stop roughly 350 miles from the
border on Interstate 40: “We find nothing suspicious about a driver changing lanes and
slowing down when he realizes a vehicle is approaching from the rear; that is a normal
reaction if the driver wishes to let the tailing vehicle pass.”); United States v. Diaz, 977 F.2d
163, 164-65 (5th Cir. 1992) (determining reasonable suspicion did not exist to stop vehicle
that flashed high beams about twenty yards from the parked patrol vehicle and then “slowed
from an estimated 75 to about 40 miles per hour” and specifically noting “there is nothing
suspicious about a speeding car slowing down after a marked patrol unit turns to follow, with
or without flashing lights.”).
41 See United States v. Orozco, 191 F.3d 578, 582 (5th Cir. 1999) (according, in case
involving a stop on I-20 near Odessa, Texas, some weight to driver’s attempt to hide and
failure to acknowledge agent’s presence after agent honked horn and noting “the avoidance
of eye contact may or may not be entitled weight”); see also Neufeld-Neufeld, 338 F.3d at 382
(determining reasonable suspicion existed for stop on U.S. Highway 385 in Big Bend National
Park in part because the driver “stared straight ahead” and “failed to acknowledge [the
agent]”); United States v. Aldaco, 168 F.3d 148, 152 (5th Cir. 1999) (“The avoidance of eye
contact may or may not be entitled weight; and it is simply one factor to consider in observing
overall behavior.”); Nichols, 142 F.3d at 864, 868 (noting that the avoidance of eye contact,
by itself, is entitled to “no weight,” but stating the driver Nichols’s overall behavior “obviously
adds to the reasonableness of the Border Patrol agents’ suspicion. Nichols stopped at the
intersection for a full twenty to thirty seconds. The Border Patrol vehicle was in plain view
less than 15 feet away from Nichols’s vehicle. A street light initially illuminated the Border
Patrol vehicle, and the agents illuminated Nichols’s truck with their headlights as Nichols
approached the intersection. The Border patrol agents observed that, not only did Nichols
avoid making eye contact, but he also did not even look in their direction when they
illuminated their headlights, nor did he look in either direction down the road as if to see
which way to go. Instead, Nichols simply stared straight ahead into the brush.”). But see
United States v. Soto, 649 F.3d 406, 411 (5th Cir. 2011) (attaching “little significance to the
failure of the driver . . . to make eye contact with the agents while they drove beside her
vehicle”); Moreno-Chaparro, 180 F.3d at 632 (“We are persuaded that in the ordinary case,
whether a driver looks at an officer or fails to look at an officer, taken alone or in combination
with other factors, should be accorded little weight. To conclude otherwise ‘would put the
officers in a classic heads I win, tails you lose position. The driver, of course, can only lose.’”
(footnote omitted) (some internal quotation marks omitted) (quoting United States v.
Escamilla, 560 F.2d 1229, 1233 (5th Cir. 1977))); Chavez-Villareal, 3 F.3d at 126-27
(determining reasonable suspicion did not exist for stop roughly 350 miles from the border
on Interstate 40 in situation in which the driver “had a rigid demeanor and looked straight
ahead”; after the agent began to follow the driver, the driver “began to change lanes and
speeds, slowing down, then speeding up”; and the driver continued to look straight ahead
despite the agent pulling up next to him); Orona-Sanchez, 648 F.2d at 1040, 1042
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some weight in favor of reasonable suspicion.
In addition to Cervantes, there were five passengers in the Trailblazer:
one in the front passenger seat, three in the back seat, and one in the rear
cargo area. The passenger in the front seat was female, and the rest were
males. The agents testified that it is not uncommon to see a vehicle with
multiple occupants on I-20; however, multiple passengers were usually seen in
vehicles that were used in an oilfield business. Those vehicles were usually
flatbed, dually or pickup trucks, generally with lettering on the side, big diesel
tanks, racks, tool boxes or brush guards attached. The Trailblazer, a small
sport utility vehicle (SUV), had none of these features. While Ramirez agreed
that if there were a fifth passenger in Cervantes’s vehicle, the only space for
him would be in the rear cargo area, the agents testified it is very uncommon
to see a passenger in the cargo area of a passenger vehicle, such as a
Trailblazer, where there is no seat or seatbelt. The agents further stated that
such a seating arrangement is consistent with smuggling. Collier additionally
testified that a vehicle with multiple occupants is typical for narcotics
smuggling. While the fact that a vehicle had multiple occupants is not
necessarily suspicious, 42 the travelers’ positions in this vehicle are a
consideration supporting the agents’ stop of the vehicle. 43
(determining reasonable suspicion did not exist for stop approximately fifty miles from the
border when, among other things, the vehicle was heavily loaded, and the driver slowed down
“considerably,” avoided eye contact with agents, and began driving “somewhat erratically”);
Escamilla, 560 F.2d at 1233 (stating that failure to acknowledge the agents’ presence “cannot
weigh in the balance in any way whatsoever”).
42 See Olivares-Pacheco, 633 F.3d at 405 (stating that six occupants in a truck is
“neither illegal nor excessive”).
43 See Zapata-Ibarra, 212 F.3d at 883 (“We also consider relevant the number of
passengers in the vehicle. [The agent] saw ‘several passengers’ in the van, and, although this
number is not unusual for a van, it is also consistent with alien smuggling.”); cf. Soto, 649
F.3d at 411 (noting that a car with two passengers was not unusual); United States v. Chavez-
Chavez, 205 F.3d 145, 149 (5th Cir. 2000) (“Most suspiciously, the five adult passengers
visible to the agents appeared dirty and disheveled . . . .”); Morales, 191 F.3d at 604 (noting
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Regarding their appearance, the front passenger was wearing short
sleeves and appeared “clean,” while the rear passengers wore heavy clothing
and jackets and appeared “dirty, [like] they just came off the brush.” The rear
passengers appeared to have not bathed or shaved in several days. It was 8:30
in the morning when the stop occurred and therefore unlikely that the rear
passengers’ appearance was due to working outdoors that day. Ramirez stated
that at the time of the stop, he was wearing short sleeves, and short sleeves
were more appropriate for the temperature that day than the rear passengers’
clothing. He testified that immigrants who had been in the brush crossing the
border often worn a jacket for protection against the brush and thorns and for
warmth during the cool nights. He had observed that type of dress on many
occasions when undocumented aliens were encountered. As to why the back
passengers had jackets while inside the vehicle but the driver and front
passenger did not, Ramirez agreed that individuals respond to temperature
differently, and he did not know the temperature inside Cervantes’s vehicle
but expressed some doubt that there could be different temperatures of that
magnitude in a small SUV. He also testified that all the passengers appeared
to be Hispanic. The evidence regarding the rear passengers’ attire in
conjunction with the time of day and the noticeable difference in appearance
and dress between the rear passengers and the front passenger are also part
of the totality of the circumstances that gave rise to reasonable suspicion. 44
that “an extraordinary number of passengers” is a factor to consider in deciding whether to
make a traffic stop (quoting Brignoni-Ponce, 422 U.S. at 885)); cf. Moreno-Chaparro, 180 F.3d
at 632-33 (determining reasonable suspicion did not exist for stop in part because “[t]he agent
could not point to anything suspicious about the truck. It contained no visible passengers, it
had not been modified in an obvious way, and it was not riding low to the ground”).
44 See Brignoni-Ponce, 422 U.S. at 885 (noting, in its list of reasonable-suspicion
factors, the Government’s argument that “trained officers can recognize the characteristic
appearance of persons who live in Mexico, relying on such factors as the mode of dress and
haircut”); Chavez-Chavez, 205 F.3d at 147-50 (“Most suspiciously, the five adult passengers
visible to the agents appeared dirty and disheveled, which has been considered reasonably
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The agents testified that I-20 has “heavy traffic coming from the south”
and that they patrol I-20 frequently based on their knowledge that “alien and
narcotic loads are entering from the south and . . . [I-20]’s a good highway that
leads up to Odessa and north.” As we have noted, I-20’s reputation as a
smuggling route weighs in favor of reasonable suspicion. 45 Additionally, at the
time of the suppression hearing, Collier had over sixteen years of experience
as a Border Patrol agent, ten of which were spent in the Midland area, and
Ramirez had eleven years of experience, three of which were spent in the
Midland area. The agents testified that their main duty is traffic observation
and that they often watch traffic on I-20. Their substantial experience is a
suspicious in prior cases. As discussed previously, the suspicion raised by the dirty
appearance of the passengers is heightened given that the stop occurred at 8:00, decreasing
the likelihood that they were returning from a day of outdoor labor.” (citation omitted)); see
also United States v. Inocencio, 40 F.3d 716, 720, 723 (5th Cir. 1994) (“[A]lthough [the driver]
appeared to be dressed as a workman, his clothing appeared too clean to have been working
in the field.”); Garcia, 732 F.2d at 1222, 1224 (5th Cir. 1984) (“This Court also has relied upon
an agent’s observation, as was present here, that occupants of the vehicle were unwashed
and unkempt,” “a characteristic considered common to individuals who have recently spent
time in the brush.” “Moreover, the lateness of the hour substantially reduces the likelihood
that those individuals were returning from outdoor work.” (citation omitted)). But see United
States v. Jones, 149 F.3d 364, 369 (5th Cir. 1998) (“A factual condition which is consistent
with the smuggling of illegal aliens in a particular area, will not predicate reasonable
suspicion, if that factual condition occurs even more frequently among the law abiding public
in the area.”).
45 See United States v. Garza, 727 F.3d 436, 441 (5th Cir. 2013) (“The area’s reputation
as a smuggling route supports [the agent’s] reasonable suspicion.”); United States v. Rico-
Soto, 690 F.3d 376, 380 (5th Cir. 2012) (determining that although the stop occurred
approximately 450 miles from the border in Lake Charles, Louisiana, reasonable suspicion
existed in part because the stop occurred on I-10, “a major alien-smuggling corridor”); United
States v. Rivera-Gonzalez, 413 F. App’x 736, 739 (5th Cir. 2011) (giving weight to “the
prevalence of drug and illegal alien smuggling on I-20 near Midland”); Morales, 191 F.3d at
604 (determining reasonable suspicion existed in part based on the agent’s testimony that “I-
20 is ‘notorious for alien smuggling and narcotics.’”); Orozco, 191 F.3d at 582 (“Although the
stop was not within fifty miles of the border, other facts existed indicating that the particular
stretch of I-20 [fifteen miles from Odessa, Texas,] was a favored route for illegal alien
smugglers.”). But see Olivares-Pacheco, 633 F.3d at 401, 404 (according minimal to no weight
to I-20’s reputation as a smuggling route).
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factor weighing in favor of reasonable suspicion, in light of what they
observed. 46
Cervantes points to other evidence that he contends require us to
conclude that the agents had no reasonable suspicion when they stopped his
Trailblazer. Collier testified that people drive to their jobs in Odessa in the
mornings and that traffic is heavy at those times. The agents did not testify
that this time or day of the week had any particular significance to them, 47 and
there is nothing inherently unusual about traveling on a major thoroughfare
on a weekday morning. 48
Collier testified that Cervantes’s vehicle was registered in Morton,
Texas, approximately 135 miles north of Odessa. There are highways that
connect Odessa to Morton. “A vehicle’s registration may, under some
46 See Brignoni-Ponce, 422 U.S. at 885 (“In all situations the officer is entitled to assess
the facts in light of his experience in detecting illegal entry and smuggling.”); Garza, 727 F.3d
at 441-42 (“[A]n officer’s experience is a contributing factor in determining whether
reasonable suspicion exists.” (internal quotation marks omitted) (quoting Zapata-Ibarra, 212
F.3d at 882)); Rico-Soto, 690 F.3d at 380 (“[The agent] has worked for the Border Patrol for
19 ½ 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 circumstances that less-familiar outside observers might never realize were
noteworthy.”); Nichols, 142 F.3d at 871 (“The interplay of the agents’ past experience
demonstrates the importance of viewing the factors in light of the totality of the
circumstances.”).
47See, e.g., Rico-Soto, 690 F.3d at 380 (determining reasonable suspicion existed in
part because “the van was traveling westbound through [the agent’s] location in the mid-
morning, the main time, route, and direction [the agent’s] past experience has shown
smugglers pass by through the area”); Chavez-Chavez, 205 F.3d at 148 (determining
reasonable suspicion existed in part because “[t]he agents testified that illegal aliens often
travel north on Highway 286 at 8:00 a.m., the approximate time of the stop at issue” and the
occupants appeared “dirty and unkept”).
48 Cf. Olivares-Pacheco, 633 F.3d at 405 (determining reasonable suspicion did not
exist for a stop made on I-20 near Odessa and labeling the time of the stop (10:30 a.m. on a
Monday) “the most innocuous conceivable hour”); United States v. Rangel-Portillo, 586 F.3d
376, 382 (5th Cir. 2009) (“What is more indicative of a stop lacking in reasonable suspicion is
. . . what is missing from the record. In the current case, . . . the time of the stop was not
suspicious.”).
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circumstances, add to reasonable suspicion,” 49 and here, the facts were
consistent with traveling to Morton. 50 The agents also testified that the
decision to pull Cervantes over was not based on a tip or information from an
informant. Although Collier had performed numerous traffic stops in the area,
he could not recall exactly how many recent arrests he had made, and Ramirez
stated that he could recall making one arrest in the months preceding
Cervantes’s arrest. We have said that the lack of a tip or information about
recent illegal trafficking in the area detracts from reasonable suspicion. 51
The facts of the present case are similar, to some degree, to facts
discussed in United States v. Oliver-Pacheco. 52 In that case, the Fifth Circuit
determined no reasonable suspicion existed. 53 Like Cervantes, Olivares-
49 Olivares-Pacheco, 633 F.3d at 404.
50 See Rico-Soto, 690 F.3d at 381 (“[I]t is not unusual. . . for a car to be headed toward
the city in which it is registered . . . . The fact that [the defendant] 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.”); Olivares-Pacheco, 633 F.3d at 404 (determining a vehicle’s
registration provided “minimal if any suspicion” when vehicle was stopped traveling east on
I-20 near Odessa and was registered in the Dallas-Fort Worth area); United States v. Soto,
649 F.3d 406, 408-09, 411 (5th Cir. 2011) (determining reasonable suspicion existed to stop
the defendant’s vehicle on a weekday morning on Interstate 35 between Laredo and San
Antonio, Texas, but giving no weight to the vehicle’s registration in city in southeast Texas);
United States v. Espinosa-Alvarado, 302 F.3d 304, 306 (5th Cir. 2002) (per curiam)
(determining reasonable suspicion existed to stop defendant’s vehicle less than one mile from
the border and according some weight to the fact that the vehicle “was registered in New
Mexico, but was over 45 miles from the New Mexico/Texas border on a work-day, driving east
on a desolate stretch of Hwy 20 usually trafficked by local residents”); United States v. Lopez,
564 F.2d 710, 713 (5th Cir. 1977) (“[W]e view the fact that the car was old, with a large trunk
and out-of-county license plates, as having only minor importance. We would have thought
it obvious that citizens may leave their state or county without having their purposes
questioned. . . . We are a people on the move, and nary an eyebrow should be raised by seeing
a Harris County license plate over 50 miles from our neighbor to the south.”).
51See Rangel-Portillo, 586 F.3d at 382 (“What is more indicative of a stop lacking in
reasonable suspicion is . . . what is missing from the record. In the current case, . . . there is
no evidence to indicate that the officer received a tip from an anonymous informant.”).
52 633 F.3d 399 (5th Cir. 2011).
53 Id. at 409.
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Pacheco was traveling eastbound, in the right lane, on I-20 near Odessa, Texas,
on a weekday morning (10:30 a.m.). 54 Cervantes drove a Trailblazer, an SUV,
while Olivares-Pacheco drove an extended-cab pick-up truck. 55 Both vehicles
were registered in another area of Texas accessible from I-20 or roads
stemming from I-20. 56 Like Cervantes’s vehicle, there were six occupants in
Olivares-Pacheco’s vehicle, but one of the passengers in Cervantes’s vehicle
traveled in the rear cargo area where there was no seat. 57 Also unlike
Cervantes, who decelerated when the agents began catching up to him,
Olivares-Pacheco drove at the speed limit. 58 Neither Cervantes nor Olivares-
Pacheco engaged in erratic driving behavior. 59 Olivares-Pacheco’s vehicle had
brush underneath it, and Cervantes’s vehicle appeared to be riding low. 60 In
both situations, the drivers did not acknowledge the agents’ presence when the
agents pulled up next to their vehicles; in Cervantes’s situation, the agents also
honked multiple times. 61 One of the passengers in Olivares-Pacheco’s vehicle
pointed in the opposite direction of the agents, and the others looked that
way. 62 The passengers in Cervantes’s vehicle were dirty and wearing jackets,
while the front passenger and Cervantes were clean and in short sleeves.
54 Id. at 401.
55 Id.
56 Id.
57 Id.
58 Id. at 401, 405.
59 Id.
60 Id. at 401, 403.
61 Id.
62 Id.
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In Olivares-Pacheco, this court determined reasonable suspicion did not
exist for the stop. 63 The only factor the court considered as solidly weighing in
favor of reasonable suspicion was the agents’ extensive experience. 64 The
differences between Olivares-Pacheco and the present case are that:
(1) Cervantes changed lanes and decelerated; (2) the rear passengers in
Cervantes’s vehicle wore jackets, were dirty, appeared not to have shaven or
bathed for days, and the time of the stop was inconsistent with returning from
work; (3) one of the passengers was in the rear cargo area; (4) the agents
honked at Cervantes, making his failure to acknowledge them more notable;
and (5) Cervantes’s vehicle was riding low. While there is conflicting case law,
support can be found as to the relevance of each of these factors, with the
exception of the fact that the passengers wore jackets. 65 Both of the agents
who made the stop were experienced in apprehending alien smugglers, and the
agents were personally familiar with the appearance of aliens who had
63Id. at 409 (“We are satisfied that, if we were to side with the government in this
case and affirm the district court’s denial of the defendant’s motion to suppress, we would be
doing so on the barest articulation of facts that we have ever credited as constituting
reasonable suspicion. This we are unwilling to do.”).
64 Id. at 404.
65 See, e.g., United States v. Neufeld-Neufeld, 338 F.3d 374, 377, 382 (5th Cir. 2003)
(according weight to the defendant’s considerable deceleration after seeing the marked patrol
car, and the defendant did not appear to be speeding beforehand); United States v. Guerrero-
Barajas, 240 F.3d 428, 433 (5th Cir. 2001) (according some weigh to fact that the vehicle was
“riding low”); United States v. Orozco, 191 F.3d 578, 582 (5th Cir. 1999) (according, in case
involving a stop on I-20 near Odessa, Texas, some weight to driver’s attempt to hide and
failure to acknowledge agent’s presence after agent honked horn and noting “the avoidance
of eye contact may or may not be entitled weight”); United States v. Zapata-Ibarra, 212 F.3d
877, 883 (5th Cir. 2000) (“We also consider relevant the number of passengers in the vehicle.
[The agent] saw ‘several passengers’ in the van, and, although this number is not unusual
for a van, it is also consistent with alien smuggling.”); United States v. Chavez-Chavez, 205
F.3d 145, 147-50 (5th Cir. 2000) (“Most suspiciously, the five adult passengers visible to the
agents appeared dirty and disheveled, which has been considered reasonably suspicious in
prior cases. As discussed previously, the suspicion raised by the dirty appearance of the
passengers is heightened given that the stop occurred at 8:00, decreasing the likelihood that
they were returning from a day of outdoor labor.” (citation omitted)).
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emerged from brushy areas after crossing the border, including the types of
clothing typically worn. The agents testified that the appearance of the
passengers in Cervantes’s vehicle was entirely consistent with aliens who had
crossed the border and traveled through the Texas brush. The experience of
agents in circumstances such as these is entitled to weight. 66 There is evidence
in the present case that was not presented in Oliver-Pacheco. We must
consider the totality of the circumstances that faced Agents Collier and
Ramirez.
Viewing the evidence in the light most favorable to the Government, 67
and considering the totality of the circumstances, 68 the agents had reasonable
suspicion to stop Cervantes. The traffic stop did not violate the Fourth
Amendment.
* * *
For the aforementioned reasons, we AFFIRM the district court’s
judgment.
66 See, e.g., United States v. Arvizu, 534 U.S. 266, 273-74 (2002) (“[O]fficers [may] draw
on their own experience and specialized training to make inferences from and deductions
about the cumulative information available to them that ‘might well elude an untrained
person.’” (quoting United States v. Cortez, 449 U.S. 411, 418 (1981))); id. (“[A] reviewing court
must give ‘due weight’ to factual inferences drawn by . . . local law enforcement officers.”
(citing Ornelas v. United States, 517 U.S. 690, 699 (1996))); Orozco, 191 F.3d at 581-82.
67 United States v. Rodriguez, 564 F.3d 735, 740 (5th Cir. 2009).
68 United States v. Garza, 727 F.3d 436, 440 (5th Cir. 2013).
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EDWARD C. PRADO, Circuit Judge, dissenting:
Because this border-patrol stop occurred more than 200 miles from the
U.S.–Mexico border based on little more than innocuous, safe, lawful driving
behavior, I respectfully dissent. Cervantes was driving his five-seat Chevrolet
Trailblazer SUV eastbound with five passengers at 8:30 a.m. on a Wednesday
morning. When border patrol drove up behind him, he changed lanes from the
left lane to the right line behind a slow-moving 18-wheel semi-truck. The SUV
slowed to match the truck’s speed. The border patrol agent then pulled up
alongside the left side of Cervantes’s SUV, boxing Cervantes in—with an 18-
wheel truck in front of him, a border patrol car to his left, and the road shoulder
to his right. The border patrol agent honked his horn, but Cervantes kept his
eyes on the road. These facts—considered together as part of the totality of the
circumstances and examined charily due to the substantial distance between
the stop and the border—do not support reasonable suspicion that Cervantes
had smuggled aliens or contraband across the U.S.–Mexico border.
We confronted a strikingly similar situation, and reached a conclusion
opposite from the majority opinion, in a case involving a border-patrol stop of
a vehicle that was also travelling eastbound on this very stretch of highway on
a weekday morning. United States v. Olivares–Pacheco, 633 F.3d 399, 401 (5th
Cir. 2011). We not only held that the stop was unconstitutional because the
border patrol agents lacked reasonable suspicion, we also characterized the
case as presenting “facts of an unprecedented suspicionless nature.” Id. at 409.
Because this case is materially indistinguishable from Olivares–Pacheco, I
would hold that the agents lacked reasonable suspicion for the stop that
resulted in Cervantes’s conviction, and I would vacate his conviction and
sentence.
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As elaborated below, the majority opinion stumbles in two important
respects. First, the opinion does not give the substantial 200-mile distance of
the stop from the border the paramount weight this factor warrants under our
case law. 200 miles is a substantial distance that significantly undercuts the
vital element of the Brignoni-Ponce test: whether the car had come from the
border. Second, the majority opinion attributes suspiciousness to safe driving
in the circumstances.
I. PROXIMITY TO THE BORDER IS A PARAMOUNT FACTOR,
AND 200 MILES FROM THE BORDER WEIGHS HEAVILY
AGAINST REASONABLE SUSPICION
We weigh the eight factors outlined by the Supreme Court in United
States v. Brignoni-Ponce, 422 U.S. 873 (1975) to determine if border patrol
agents on roving patrol had reasonable suspicion to stop a vehicle. United
States v. Garza, 727 F.3d 436, 443–44 (5th Cir. 2013), cert. denied, 134 S. Ct.
1346 (2014). These factors include:
(1) proximity to the border;
(2) known characteristics of the area in which the vehicle is
encountered;
(3) usual traffic patterns on the particular road;
(4) the agent’s previous experience in detecting illegal activity;
(5) information about recent illegal trafficking in aliens or
narcotics in the area;
(6) particular aspects or characteristics of the vehicle;
(7) behavior of the driver; and
(8) the number, appearance, and behavior of the passengers.
United States v. Zapata–Ibarra, 212 F.3d 877, 881 (5th Cir. 2000) (citing
United States v. Orozco, 191 F.3d 578, 581 (5th Cir. 1999)).
These factors are not entitled to equal weight. This Court has repeatedly
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stated that “[t]he first factor, proximity to the border, is a ‘paramount factor’
in determining reasonable suspicion.” Orozco, 191 F.3d at 581; accord Garza,
727 F.3d at 441; Zapata–Ibarra, 212 F.3d at 881. “[A] vital element of the
Brignoni-Ponce test is whether the agent had ‘reason to believe that the vehicle
[in question] had come from the border.’ ‘[T]his element [is] . . . missing where
the stop has occurred a substantial distance from the border.’” United States v.
Garcia, 732 F.2d 1221, 1223 (5th Cir. 1984) (second alteration in original)
(emphasis added) (quoting United States v. Lamas, 608 F.2d 547, 549 (5th Cir.
1979)).
The “paramount” proximity-to-the-border factor weighs so heavily in the
reasonable-suspicion analysis that, if the distance from the border is as
substantial as in this case, we examine the remaining seven factors and the
evidence charily, with skepticism toward the Government’s justification for the
stop. See Olivares–Pacheco, 633 F.3d at 409 (“Proximity to the border is a
‘paramount factor,’ and, again, we must look at the other evidence charily if
such proximity is not present.”).
The majority opinion errs by not giving this paramount factor the
consideration it warrants under our case law. We have been skeptical toward
border patrol agents’ justification of reasonable suspicion this far from the
border for good reason: Upholding a border-patrol stop on these facts—
changing lanes behind a 18-wheel semi-truck, slowing to match that truck’s
speed, and not looking at a honking car to your left this far from the border—
could subject millions of safe drivers to potential privacy intrusions. 1 Major
1 The border patrol’s own authorizing statute and regulations provide that “100 . . .
miles from [the] external boundary of the United States” is a “reasonable distance” within
which border patrol agents are authorized to conduct roving patrols to prevent illegal entry.
8 U.S.C. § 1357(a)(3) (authorizing border patrol agents to conduct roving patrols within a
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cities that no one would consider “border cities,” such as Los Angeles, San
Antonio, and Phoenix are all closer to the U.S.–Mexico border than Penwell,
Texas and this particular stretch of Interstate-20. The overwhelming majority
of drivers headed eastbound on the Interstate in these metropolises have not
crossed the U.S.–Mexico border during their journeys, and many—if not
most—of these drivers have changed lanes behind a slow, 18-wheel semi-truck
to allow a faster moving car to pass on the left.
II. EXAMINING THE EVIDENCE AND REMAINING FACTORS
CHARILY, AS WE MUST, THE OFFICERS LACKED
REASONABLE SUSPICION TO STOP THE CAR
Examining the factors and evidence skeptically, I would hold that the
border patrol agents lacked reasonable suspicion to stop the car. Cervantes
was driving eastbound on Interstate-20. The officers checked the car’s
registration before stopping the car and determined that the car was registered
in Morton, Texas. Thus, the direction that the car was travelling would have
taken the car toward Morton, which is north of Odessa. This fact undercuts the
agents’ basis for the stop. See Olivares–Pacheco, 633 F.3d at 404–05 (rejecting
the agents’ justification in part because “the vehicle was registered . . . in the
greater Dallas area, wholly consistent with the truck’s direction”). Moreover,
the stop occurred at about 8:30 a.m. on a Wednesday, not in the dark of night.
This fact also cuts against reasonable suspicion. See id. at 405 (rejecting the
agents’ justification in part because the stop “occurred on a Monday at 10:30
A.M., not in the dark of night”). Cervantes’s SUV also did not appear dirty or
covered in brush—which would have been consistent with having “gone off
road”—a fact that also weighs against suspicion.
“reasonable distance” of the border); 8 C.F.R. § 287.1(a)(2) (defining “reasonable distance” to
mean 100 miles); see also Brignoni–Ponce, 422 U.S. at 877.
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There are facts that support the border patrol agents’ suspicion in this
case as well. The agents testified that Cervantes’s SUV was driving on an
alien-smuggling route and appearing to carry a heavy load. The SUV contained
one driver and five passengers, even though there were only enough seatbelts
to accommodate one driver and four passengers (one passenger was seated in
the cargo area). Four of the occupants appeared to be “dirty.” From this, the
experienced officers—Agent Collier has sixteen-plus years’ experience as a
border patrol agent, and Agent Ramirez has eleven-years’ experience—
suspected illegal alien smuggling. 2
On balance, however, these facts and the totality of the circumstances do
not establish reasonable suspicion. The most important factor—proximity to
the border—weighs against reasonable suspicion because the stop occurred
more than 200 miles from the border. See Olivares–Pacheco, 633 F.3d at 402,
409; Orozco, 191 F.3d at 581. Though we view the evidence in the light most
favorable to the Government, we also must examine the remaining factors with
skepticism this far from the border. See Olivares–Pacheco, 633 F.3d at 409. As
elaborated below, 3 Cervantes’s driving behavior was safe, not suspicious. He
was driving toward the city in which the car was registered at 8:30 a.m. on a
weekday morning. The SUV showed no indication of having recently driven off-
road. Although the car appeared heavily loaded and had one more passenger
than available seatbelts, travelling with multiple occupants in an SUV is not
2 The Government also points to inconsistent attire as a factor supporting reasonable
suspicion: the driver and front passenger wore short sleeves, whereas the rear passengers
wore jackets. But there is no reason to believe that wearing jackets on an October morning
near Odessa, Texas is suspicious. According to the Farmer’s Almanac, the low temperature
that day was 57 degrees. Common sense dictates that some passengers in the back wearing
jackets—as opposed to passengers wearing short sleeves in the front of the vehicle—on a fall
morning at 8:30 a.m. near Odessa is consistent with comfort and style preferences, not alien
smuggling.
3 See infra Part II(C).
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suspicious. Olivares–Pacheco, 633 F.3d at 405 (concluding that “the number of
persons in the truck—six—was neither illegal nor excessive”).
Finally, although in the past this Court has accepted testimony that this
part of I-20 is an alien-smuggling corridor as supportive of reasonable
suspicion, we have more recently given this factor minimal weight on this
particular stretch of highway. Id. We reasoned that “the overwhelming
majority of the traffic on this stretch of I-20 is unquestionably legal and the
government has not shown that aliens are more or less likely to use Interstates
than back roads.” Id. The same applies here because, as in Olivares–Pacheco,
the Government does not point to evidence in this case establishing that alien
smugglers are more likely to use Interstates than backroads.
A. The Driving Behavior Was Lawful and Safe, Not Suspicious
The majority opinion errs by ascribing suspiciousness to safe and lawful
driving behavior. Of course, as the majority opinion notes, “[f]actors that
ordinarily constitute innocent behavior may provide a composite picture
sufficient to raise reasonable suspicion in the minds of experienced officers.”
Olivares–Pacheco, 633 F.3d at 402 (internal quotation marks omitted). 4 And
the Supreme Court has rejected a “divide-and-conquer analysis” for assessing
reasonable suspicion, noting that factors which by themselves may be “quite
consistent with innocent travel” may collectively amount to reasonable
suspicion. United States v. Arvizu, 534 U.S. 266, 274–75 (2002) (quoting, in a
parenthetical, United States v. Sokolow, 490 U.S. 1, 9 (1989)).
But we have also held that facts that are consistent with alien smuggling
do not provide reasonable suspicion if those factual conditions also occur even
more frequently in the law-abiding public. United States v. Rangel–Portillo,
4 Ante at 5.
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586 F.3d 376, 387 (5th Cir. 2009) (citing United States v. Chavez–Chavez, 205
F.3d 145, 148 (5th Cir. 2000)). Rangel–Portillo illustrates how innocuous facts
considered together as part of the totality of the circumstances may not support
reasonable suspicion. There, we confronted a similar scenario; however, the
stop occurred much closer to the border—just 500 yards away. See id. at 378.
As in this case, there, the border patrol agents stopped a Ford Explorer SUV
fully loaded with passengers. Id. The SUV pulled into a Wal-Mart parking lot
in Rio Grande City, Texas that was well-known for alien and drug smuggling.
Id. The SUV contained three passengers in the back seat, and the driver “made
eye contact” with the agent but the backseat passengers “avoided eye contact,
were ‘stone-faced,’ . . . looked straight forward,” and “were sweating.” Id. The
district court denied the motion to suppress based on, inter alia, the fact that
the SUV passengers “failed to converse with one another and sat rigidly,” the
absence of shopping bags in the SUV, the sweaty appearance of the passengers,
and the fact that the rear passengers wore seatbelts. Id. at 379. We reversed
and vacated the conviction and sentence. Id. at 383.
We stated that “there is no rational reason to conclude that law-abiding
citizens are less likely to wear their seatbelts or exit a Wal-Mart parking lot
sans shopping bags” than someone smuggling aliens or contraband. Id. at 381.
We rejected the Government’s invitation to defer to the agent’s expertise in
recognizing reasonably suspicious behavior and explained: “Individuals do not
shed their constitutional rights with the click of a seatbelt.” Id.
1. Allowing a Car to Pass on the Left Is Not Suspicious
Just as individuals do not shed their constitutional rights with the click
of a seatbelt, individuals do not also shed their constitutional rights by
changing lanes on a two-lane highway to allow a fast-approaching car to pass
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on the left. 5 Agent Ramirez testified that he rapidly accelerated his patrol car
to catch up to Cervantes. In response to a fast approaching car in the left lane,
Cervantes naturally changed lanes to the right lane and slowed down to match
speed with a slow moving 18-wheel semi-truck. As in Rangel–Portillo, “there is
no rational reason to conclude that law-abiding citizens are less likely” to
change lanes in this manner than someone smuggling aliens or contraband.
See 586 F.3d at 381.
2. Failing to Acknowledge Horn Honking Does Not Create
Reasonable Suspicion in These Circumstances
The border patrol agents also attempt to justify their suspicion by
pointing out that, after they pulled into the left lane beside the SUV—boxing
in Cervantes with the big-rig truck close in front—they honked their horn six
times and Cervantes did not look over.
The horn honking does not contribute to reasonable suspicion. This does
not appear to be a technique these agents have found, based on their training
and experience, to be indicative of criminal activity afoot. Agent Collier could
not say whether it is “unusual for someone to ignore . . . honking of a car.” On
cross-examination, Agent Collier admitted: “[Border Patrol] have not used
[horn honking] a whole bunch. . . . I have not honked the horn very many
times.” There is also no case law supporting the proposition that failing to heed
the honking of an adjacent car’s horn is inherently suspicious. 6 Considering
5 Indeed, in Texas, remaining in the left lane is often against the law—supporting
reasonable suspicion for a traffic stop. E.g., Abney v. State, 394 S.W.3d 542, 548 (Tex. Crim.
App. 2013).
6 In Orozco, we observed that the district judge had noted that a border patrol agent
honked at the driver as part of the district court’s reasons for denying a motion to suppress
evidence discovered as a result of a border-patrol stop. 191 F.3d at 582. We suggested that
this factor did not contribute to reasonable suspicion, noting that “some of the factors relied
on by the trial judge” were inappropriate. Id. at 582–83. We nonetheless affirmed the denial
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that Cervantes’s car was following a 18-wheel semi-truck at speeds
approaching 70 miles per hour, boxed in by a border patrol car to his left and
the shoulder to his right, the totality of the circumstances indicate that it was
reasonable—even advisable—for Cervantes to keep his eyes on the road.
Additionally, this Court has repeatedly rejected border patrol agents’
conclusions drawn from eye contact when asked to evaluate the reasonableness
of a border-patrol stop. See, e.g., Olivares–Pacheco, 633 F.3d at 403 (“The
avoidance of eye contact . . . is not entitled to any weight.”); Rangel–Portillo,
586 F.3d at 381 (same); see also Chavez–Chavez, 205 F.3d at 149 (“Whether a
driver looks at an officer or not should not be accorded much weight.”).
3. Context Matters in Assessing the Totality of the Circumstances
Deceleration and failure to acknowledge a law-enforcement vehicle may
reasonably be suspicious in some circumstances—but the context matters.
Courts have agreed with law enforcement that such behavior is suspicious on
secluded roads, but not necessarily on busy highways. See, e.g., Arvizu, 534
U.S. at 275–76 (“We think it quite reasonable that a driver’s slowing down,
stiffening of posture, and failure to acknowledge a sighted law enforcement
officer might well be unremarkable in one instance (such as a busy San
Francisco highway) while quite unusual in another (such as a remote portion
of rural southeastern Arizona).” (emphasis added)). Here, there is no evidence
in the record that I-20 outside of Midland–Odessa during rush hour on a
Monday morning is similar to a remote portion of rural southeastern Arizona.
On the contrary, the agents testified that during this time of day, this portion
of I-20 experiences heavy traffic from oil-field workers headed to work.
The totality of the circumstances here—a two-lane highway with a fast-
of the motion to suppress based on the totality of the circumstances and not on one factor
alone. Id.
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approaching car in the left lane and a slow-moving 18-wheel semi-truck in the
right lane—indicate that Cervantes was driving safely and not suspiciously.
The majority opinion errs by accepting the border patrol agents’ attempt to
justify reasonable suspicion based on Cervantes’s driving behavior in isolation,
even though law-abiding citizens are just as likely to drive as Cervantes did in
these circumstances. See Rangel–Portillo, 586 F.3d at 381.
B. Case Law Illustrates Why Reasonable Suspicion Is Lacking Here
This case is materially indistinguishable from Olivares–Pacheco. As in
this case, in Olivares–Pacheco, we assessed a border-patrol stop of a vehicle
travelling on the same stretch of highway, in the same direction, and at the
same time of a weekday. 633 F.3d at 401–02. We explained that “the fact that
Olivares–Pacheco was nowhere near the border makes our decision a much
easier one. Indeed, of the cases in which the vehicle was stopped far from the
border, the articulated reasons for suspicion were far greater than in the
instant case.” Id. at 406, 409 (referring to Orozco and Morales among other
cases). Not only did we reverse the district court’s denial of the defendant’s
motion to suppress, we said the case was not particularly close: “We are
satisfied that, if we were to side with the government in this case and affirm
the district court’s denial of the defendant’s motion to suppress, we would be
doing so on the barest articulation of facts that we have ever credited as
constituting reasonable suspicion.” Id. at 409 (emphasis added).
Moreover, the majority opinion’s reliance on Orozco and United States v.
Morales, 191 F.3d 602 (5th Cir. 1999) is misplaced, and the striking differences
between those cases and this one illustrate why the agents lacked reasonable
suspicion here. In both cases, the circumstances were far more suspicious than
this case. In Orozco, unlike in this case, the arresting officer testified that he
had personally apprehended twenty loads of illegal aliens in the same area in
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the previous five months and knew that a majority of the transporters of aliens
passed through this particular stretch of I-20 on weekends between 9 a.m. and
10 a.m.—precisely the same time that the defendant was stopped. 191 F.3d at
582. The agent testified that he “noticed that the truck bed was completely
covered by a tarp,” and that “the spare tire was placed in the back seat of the
truck as if to make room for a large amount of cargo in the bed of the truck,”
both of which are “common technique[s] employed by smugglers to hide illegal
aliens.” Id. Facts like these are entirely missing in this case. Further, the
observed driving behavior in Orozco was objectively erratic: “the truck was
weaving and bouncing on the road.” Id. And unlike the agents’ vague testimony
of “sagging in the rear” in this case, the agents in Orozco specifically testified
that they observed “that the tires were under inflated—suggesting the truck
bed was carrying a heavy cargo.” Id.
Morales is also a far cry from this case. The vehicle in Morales bore the
hallmarks of an alien-smuggling truck: the agent testified that “[t]he pickup
truck had a fiberglass cover over the truck bed,” and that “the cover was almost
flush with the top of the sides around the bed.” 191 F.3d at 605, 607. The border
patrol agent further testified that, based on his experience, “he knew that
approximately 30 persons could be hidden under the cover.” Id. at 607. Again,
unlike in this case, the driving behavior was objectively erratic: the truck was
observed “weaving back and forth across the [lane] line.” Id. at 605. In contrast
to the vague testimony in this case of “sagging,” the Government developed
record evidence of particular articulable facts to support their suspicion. The
border patrol agent in Morales testified that he ingeniously positioned himself
at a particular spot near a bump in the roadway. Id. at 606–07. The agent
testified that he had “encountered ways that [smugglers] have tried to hide [a
heavy load]. They put 2X4s in the springs and so on and so forth. But when
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they do that, the vehicle hits [the bump] solid. It doesn’t bounce.” Id. at 607.
The border patrol agent observed this phenomenon and noted that the tires
were underinflated, id. at 605, and he articulated these observed facts at the
suppression hearing. We credited that the agent had drawn “rational
inferences from those facts”—that the truck was heavily loaded—and “was able
to form the requisite suspicion” to lawfully stop the car. Id. at 607.
This case is perhaps a closer one than Olivares–Pacheco—due to the
agents’ observation that the passengers appeared dirty and the SUV was
“sagging in the rear.” 7 But because of the absence of the kind of observed,
articulable facts that we credited in Morales and Orozco as supporting the
credible inference that a truck was heavily loaded with illegal aliens or
contraband, I would conclude that Olivares–Pacheco is materially
indistinguishable from this case and would reverse.
III. CONCLUSION
For the foregoing reasons, I would hold that the border patrol agents
lacked reasonable suspicion to stop Cervantes’s car, and I respectfully dissent.
7 But see Olivares–Pacheco, 633 F.3d at 401 (“[T]he agents observed that [the truck]
was dragging some brush.”). Additionally, a flatbed truck has been recognized in our case law
as more consistent with alien and drug smuggling than an SUV with passengers visibly
seated in the back. See, e.g., Morales, 191 F.3d at 605.
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