United States v. Joel Cisneros

Case: 14-40039 Document: 00512812533 Page: 1 Date Filed: 10/23/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-40039
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
October 23, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JOEL RENE CISNEROS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:13-CR-267-1
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
Joel Rene Cisneros pleaded guilty conditionally to possession of
marijuana with intent to distribute and received a 60-month prison term. He
now appeals the denial of his motion to suppress evidence obtained as the
result of a stop by a Border Patrol agent, arguing that the agent lacked
reasonable suspicion. Finding no error, we affirm.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-40039
We review the ultimate constitutionality of the stop, including whether
there was reasonable suspicion, 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 Brignoni-Ponce
factors. United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). The
first factor, proximity to the border, supports reasonable suspicion, as the
agent encountered Cisneros’s SUV half a mile from the border, traveling north
on Mines Road, which leads to the Columbia International Bridge. See United
States v. Zapata-Ibarra, 212 F.3d 877, 881 (5th Cir. 2000). As for the second
factor, characteristics of the area, the agent testified that this area of Mines
Road is heavily used by drug and alien traffickers. Although this factor is
tempered by the road’s use for legitimate purposes, see United States v. Diaz,
977 F.2d 163, 165 (5th Cir. 1992), it is nevertheless relevant. See Jacquinot,
258 F.3d at 429. Further, even if only minimally supportive, this factor is
bolstered by the traffic patterns and recent illegal activity, the third and
seventh factors. See id. at 427. At that time of night, according to the agent,
traffic is usually light, and the road tends to be used by smugglers. Further,
the agent was part of a Special Operations Group that had recovered 2,000 to
3,000 pounds of marijuana in the preceding two months. See United States v.
Orozco, 191 F.3d 578, 582 (5th Cir. 1999).
The fifth factor, Cisneros’s behavior, also supports the stop. When the
agent first saw him, Cisneros was traveling north and took a turnaround
heading south, traveling 40 to 45 miles per hour, below the posted speed limit
of 60 miles per hour. He slowed to 20 to 30 miles per hour when the agent tried
to drop behind him to read his license plate, changed lanes without signaling
after the agent did drop behind him, and took a turnaround heading back
north, all of which suggested evasiveness to the agent. A few minutes later, he
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No. 14-40039
returned southbound traveling near the speed limit but again slowed to 20 to
30 miles per hour when the agent pulled up next to him. The agent testified
that Cisneros’s pattern of driving slowly and then taking a turnaround
southbound was consistent with illicit traffickers making a pickup. Cisneros’s
dramatic and unnecessary deceleration both times he encountered the agent
also adds to reasonable suspicion. See Jacquinot, 258 F.3d at 429. Although
Cisneros contends that changing lanes, driving slowly, and taking a
turnaround were consistent with innocent behavior of a driver unfamiliar with
the area and driving on a dark road with small road signs, when viewed in
totality rather than in isolation, Cisneros’s actions support reasonable
suspicion. See id. at 430.
In addition, all the circumstances must be considered together in light of
the agent’s experience (the fourth factor). See Neufeld-Neufeld, 338 F.3d at
380. The agent had been with the Border Patrol for more than 11 years; he
was a supervisory agent; he had worked in the Laredo area for most of his time
as an agent; and he had made 100 to 200 immigration stops.
The eighth factor (number and behavior of passengers) is not implicated.
Given the other factors, we need not consider the SUV’s characteristics (the
fourth factor), namely, its tinted windows. Cf. United States v. Villalobos, 161
F.3d 285, 290 (5th Cir. 1998).
In short, although each fact alone may not be sufficient to create
reasonable suspicion, taken as a whole, and viewed “through the lens of [the
agent’s] experience,” they support the decision to stop the SUV. See Neufeld-
Neufeld, 338 F.3d at 376-77, 382. The judgment of the district court is
AFFIRMED.
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