United States v. Ricardo Rodriguez, Jr.

Case: 13-41206 Document: 00512852229 Page: 1 Date Filed: 12/01/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-41206
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 1, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
RICARDO RODRIGUEZ JR., also known as Ricardo Rodriguez,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:13-CR-207-1
Before DeMOSS, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Ricardo Rodriguez, Jr., was convicted, pursuant to his conditional guilty
plea, of one count of transporting an undocumented alien for the purpose of
commercial advantage or private financial gain within the United States by
means of a motor vehicle. He appeals the denial of his motion to suppress,
contending that a Border Patrol agent illegally stopped his vehicle. He argues
that the facts supporting the stop lack the specificity and particularity required
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 13-41206 Document: 00512852229 Page: 2 Date Filed: 12/01/2014
No. 13-41206
under the Fourth Amendment, and he also asserts that the record does not
provide evidence of factors that are important in assessing whether there is
reasonable suspicion to justify a stop.
When reviewing a district court’s denial of a motion to suppress, we
review factual findings for clear error, while legal conclusions are reviewed de
novo. United States v. Rangel-Portillo, 586 F.3d 376, 379 (5th Cir. 2009). The
constitutionality of the stop, including whether there was reasonable
suspicion, is reviewed de novo. United States v. Neufeld-Neufeld, 338 F.3d 374,
378 (5th Cir. 2003). In the context of a roving Border Patrol stop, we look to
the totality of the circumstances, including the familiar factors set forth in
United States v. Brignoni-Ponce, 422 U.S. 873, 884-86 (1975). United States v.
Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001) (per curiam).
The stop occurred on Farm-to-Market Road 2050 (FM 2050), within 50
miles of the Mexican border. The proximity factor of Brignoni-Ponce is
therefore satisfied. See United States v. Zapata-Ibarra, 212 F.3d 877, 881 (5th
Cir. 2000); United States v. Canales, No. 94-60739, 1995 WL 450255, at *3 (5th
Cir. July 7, 1995) (unpublished). As we have previously noted, and as shown
by evidence presented at the suppression hearing, FM 2050 is “a known
alternative route of drug and alien smugglers seeking to avoid nearby Border
Patrol checkpoints,” and it is not well traveled. United States v. De Leon-
Reyna, 930 F.2d 396, 397 & n.1 (5th Cir. 1991) (en banc) (per curiam). “It is
well established that a road’s reputation as a smuggling route adds to the
reasonableness of [an agent’s] suspicion.” Jacquinot, 258 F.3d at 429 (internal
quotation marks and citation omitted).
The agent, who had over six years of experience with the Border Patrol,
determined that the rented Chevrolet Malibu vehicle driven by Rodriguez,
which was not typical of vehicles that utilize FM 2050, was traveling in tandem
2
Case: 13-41206 Document: 00512852229 Page: 3 Date Filed: 12/01/2014
No. 13-41206
with another vehicle. “Although observation of two cars in proximity on a
sparsely traveled road does not itself justify a stop, it may raise an agent’s
suspicions.” United States v. Villalobos, 161 F.3d 285, 290 (5th Cir. 1998). We
have “given weight to an agent’s observation that a vehicle’s appearance was
atypical of vehicles in the particular area in question.” United States v.
Nichols, 142 F.3d 857, 871 (5th Cir. 1998). Further, before making the stop
the agent knew that the vehicles that were traveling together were not
registered in a nearby town, and he reasonably found it suspicious that
vehicles with no connection to the local area were using FM 2050. See United
States v. Lujan-Miranda, 535 F.2d 327, 329 (5th Cir. 1976); see also United
States v. Delgado, 99 F. App’x 493, 496 (5th Cir. 2004) (per curiam)
(unpublished). The agent’s suspicions were also raised by the fact that there
had been recent alien smuggling activity in the area. See Jacquinot, 258 F.3d
at 427-29.
“Not every Brignoni–Ponce factor need weigh in favor of reasonable
suspicion for it to be present, nor does the Fourth Amendment require the law
enforcement officer eliminate all reasonable possibility of innocent travel
before conducting an investigatory stop.” Zapata-Ibarra, 212 F.3d at 884.
Analyzing the factors as a collective whole, Neufeld-Neufeld, 338 F.3d at 379,
we are satisfied that the agent had reasonable suspicion to stop Rodriguez’s
vehicle.
AFFIRMED.
3