United States v. Arjona-Martinez

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 16, 2003
• Docket: 02-40096
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D April 16, 2003 UNITED STATES COURT OF APPEALS Charles R. Fulbruge III For the Fifth Circuit Clerk

No. 02-40096

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JUAN ARMANDO ARJONA-MARTINEZ,

Defendant-Appellant.

Appeal from the United States District Court For the Southern District of Texas, McAllen Division M-01-CR-587

Before KING, Chief Judge, DAVIS, Circuit Judge, and VANCE*,

District Judge.

PER CURIAM:** Defendant-Appellant Juan Armando Arjona-Martinez appeals his

conditional plea of guilty on the grounds that the district court

erred in denying his motion to suppress evidence. Arjona-

Martinez contends that the government obtained evidence in an

unconstitutional stop by United States Border Patrol agents. The

district court upheld the constitutionality of the stop. We

affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case, the facts of which are largely undisputed, arises

out of a Border Patrol stop on Highway 83, east of Roma, Texas.

Roma is located less than one-quarter of a mile from Mexico, and

the city contains a bridge connecting Mexico and the United

States. The stretch of Highway 83 where the stop occurred is no

more than eight miles from the United States-Mexico border. It

is known to be an alien and narcotics trafficking route.

On July 29, 2001, Special Agent Rolando Luna of the United

States Customs Service, McAllen, Texas, received a telephone call

from a person named "Chuy" with information regarding a drug

trafficking event. Luna and another customs agent, Gary Shanley,

had never met the tipster named "Chuy." They knew, however, that

Chuy had provided Luna with reliable information about drug

trafficking at least three times in the past. Each of the past

tips led to either the seizure of narcotics or an arrest. Chuy

had always called Luna and not any other agent because of their

2 "special relationship." According to Shanley, tipsters typically

communicate with only one agent.

Chuy informed Luna that a gold Chevy Suburban with Texas

license plates numbered 1PB-K96, carrying a load of drugs, would

leave the area of the L&V Hotel and the R&B Restaurant in Roma,

Texas and head east to McAllen, Texas on Highway 83. Luna

immediately relayed this information to Border Patrol. Border

Patrol then relayed the information to its field agents. Border

Patrol agents located the described vehicle in the vicinity of

the L&V Hotel. As predicted, the vehicle proceeded to head east

on Highway 83. Senior Border Patrol Agent Greg Reyes radioed

Border Patrol agents that he had pulled up behind a gold Suburban

with Texas license plates 1PB-K96. Border Patrol Agent Eulogio

Medrano, who had been traveling west on Highway 83 towards Roma,

turned around and joined Reyes in pursuing the Suburban. At the

time of the stop, Medrano had worked for the Border Patrol for 15

months and in that time had made "many" narcotics apprehensions

in and around Roma.

After running some record checks on the Suburban, Reyes

pulled it over. Arjona-Martinez consented to a search of his

car. While Medrano stayed in his vehicle to provide back-up,

Reyes and Arjona-Martinez walked to the back of appellant’s car

and opened a rear door. There were bundles containing 130 pounds

of marijuana in the rear of the car that were plainly visible

from the outside through the passenger windows. Sometime

3 thereafter, Arjona-Martinez confessed to the crime.

The United States charged Arjona-Martinez in a one-count

indictment with possessing marijuana with the intent to

distribute it, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(C). Arjona-Martinez filed a motion to suppress evidence,

which the district court denied after holding an evidentiary

hearing. The district court concluded that the agents made the

stop with reasonable suspicion. Arjona-Martinez then entered a

conditional plea of guilty to the indictment. He received a

sentence of 18 months with a three-year term of supervised

release and a $100 special assessment. Arjona-Martinez timely

filed a notice of appeal. Arjona-Martinez argues that the

district court erred in denying his motion to suppress because

the tip that led to his arrest was unreliable and did not give

rise to reasonable suspicion under the Fourth Amendment.

II. STANDARD OF REVIEW

We review the denial of a motion to suppress under two

standards. See United States v. Rodriguez-Rivas, 151 F.3d 377,

379 (5th Cir. 1998). Questions of law, such as whether

reasonable suspicion exists to stop a vehicle, are reviewed de

novo. See United States v. Chavez, 281 F.3d 479, 483 (5th Cir.

2002). Factual findings are reviewed for clear error. See id.

Further, evidence presented at a suppression hearing is viewed in

the light most favorable to the prevailing party. See id.

4 (citing United States v. Jordan, 232 F.3d 447, 448 (5th Cir.

2000)). In this case, the prevailing party is the United States.

III. DISCUSSION

A law enforcement officer may, consistent with the Fourth

Amendment, temporarily stop a person if the officer has a

reasonable, articulable suspicion that the person has committed

or is about to commit a crime. See Chavez, 281 F.3d at 485

(citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d.

889 (1968)). Border Patrol agents on roving patrol may stop a

vehicle only if "they are aware of specific articulable facts

that, together with the rationale inferences that may be drawn

from those facts, reasonably warrant suspicion that the

particular vehicle is involved in illegal activities." United

States v. Gonzalez, 190 F.3d 668, 671 (5th Cir. 1999); see also

United States v. Brignoni-Ponce, 422 U.S. 873, 884-86, 95 S.Ct.

2574, 2582, 45 L.Ed.2d. 607 (1975); United States v. Villalobos,

161 F.3d 285, 288 (5th Cir. 1998). Reasonable suspicion requires

considerably less than proof of wrongdoing by a preponderance of

the evidence, but more than merely an unparticularized hunch.

Gonzalez, 190 F.3d at 671. The validity of the stop turns on the

totality of the circumstances known to the agents making the

stop. Id. Relying on Brignoni-Ponce, we have identified the

factors that may be considered as including (1) the

characteristics of the area in which the vehicle is encountered;

5 (2) the proximity to the border; (3) the usual patterns of

traffic on the particular road; (4) the agents’ previous

experience with traffic in the area; (5) information about recent

border crossings in the area; (6) the driver’s behavior; and (7)

the appearance of the vehicle. Brignoni-Ponce, 422 U.S. at 884-

86, 95 S.Ct. at 2582; Gonzalez, 190 F.3d at 671; Villalobos, 161

F.3d at 288. We judge the facts against an objective standard in

that we must determine whether the facts available to the

officers at the moment of the stop warrant a person of reasonable

caution to believe that the action taken was appropriate. United

States v. Lopez-Gonzalez, 916 F.2d 1011, 1013 (5th Cir.

1990)(citing United States v. Gomez, 776 F.2d 542, 546 (5th Cir.

1985)). At bottom, whether the officers had reasonable suspicion

to stop appellant's vehicle turns on the quality and the quantity

of the information that they possessed. Alabama v. White, 496

U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d. 301 (1990).

Several Brignoni-Ponce factors support the validity of the

stop of appellant's vehicle. First, the area in which the

vehicle was encountered – Highway 83 east of Roma, Texas – is

known to be a route frequented by alien and narcotics

traffickers. Second, appellant's car was in close proximity to

the United States-Mexico border inasmuch as it was fewer than

eight miles from the border. Cf. United States v. Inocencio, 40

F.3d 716, 722 n.7 (5th Cir. 1994)(vehicles traveling more than 50

6 miles from the border are usually a "substantial distance" from

the border). Third, at least one of the Border Patrol agents on

the scene had stopped narcotics traffickers in that area before.

Medrano had made "many" narcotics apprehensions in the Roma area

in the 15 months preceding this stop.

Of course, Reyes and Medrano did not stop appellant's

vehicle based on these factors alone – the agents also acted

because of Chuy's tip. In some circumstances, even an anonymous

tip, alone, may provide the reasonable suspicion necessary to

justify an investigatory stop. White, 496 U.S. at 327-29, 110

S.Ct. at 2415. Whether a particular tip provides an adequate

basis for a stop depends on "the credibility and reliability of

the informant, the specificity of the information contained in

the tip or report, the extent to which the information in the tip

or report can be verified by officers in the field, and whether

the tip or report concerns active or recent activity, or has

instead gone stale." Gonzalez, 190 F.3d at 672. Consideration

of each of these factors supports the Border Patrol agents'

decision to stop appellant's vehicle.

First, the tip that set in motion the stop of appellant's

vehicle did not come from an anonymous or unreliable source.

Chuy had proven himself to be a credible and reliable tipster.

He had provided tips to Luna several times in the past, and each

of these tips led to either a narcotics seizure or an arrest.

7 Second, Chuy's tip contained specific information. Chuy

identified the make, model, color and license plate of

appellant's vehicle. He identified its current location and,

most importantly, he predicted the direction in which the vehicle

would travel in the future. Chuy's tip therefore "contained a

range of details relating not just to easily obtained facts and

conditions existing at the time of the tip, but to future actions

of third parties ordinarily not easily predicted." White, 496

U.S. at 332, 110 S.Ct. at 2417. Third, the nature of the tip

permitted Border Patrol agents in the field to corroborate its

content. Border Patrol agents located the vehicle at the R&B

Restaurant in Roma, and Reyes and Medrano ultimately stopped the

vehicle when, as predicted, it headed east on Highway 83.

Fourth, and finally, the information Chuy provided concerned

ongoing events – it was anything but stale.

A long line of precedent indicates that the nature of Chuy's

tip, as well as the totality of the circumstances surrounding the

stop of appellant's vehicle, supports a finding that reasonable

suspicion exists. In Gonzalez, for example, Border Patrol agents

in a notorious smuggling area 62 miles from the border were on

the lookout for a Honda Accord with an identified Illinois

license plate and an identified driver suspected of smuggling

drugs from Mexico. Gonzalez, 190 F.3d at 670. The agents’

information had been provided by a confidential informant about

8 two months earlier. Id. The agents saw a car driving on a

highway in the early morning that matched this description,

except that one digit in the license plate number was incorrect.

The agents followed the vehicle and confirmed that it was

registered to the named suspect. Id. at 671. The agents then

stopped the car, whose driver turned out not to be the named

suspect, and discovered that the driver’s license had been

suspended. Id. After receiving the driver’s consent to search,

the agents found drugs in the car. Id. The Gonzalez court found

that the tip was not anonymous because the informant had a proven

track record of providing reliable information to these agents in

the past. Id. at 672-73 (citing White, 496 U.S. at 327-29, 110

S.Ct. at 2415). Further, the court found that the agents in the

field corroborated the tipster’s predictions before stopping the

vehicle because they confirmed that the vehicle was registered to

the named suspect. Id. Lastly, the court found that reasonable

suspicion was enhanced by the time of day and the notoriety of

the area, the nearly exact match between the defendant’s car and

the tipster’s information, and the agents’ experience with

traffic in that area. Id. If anything, the facts supporting the

stop of appellant's vehicle are stronger than those that

supported the stop in Gonzalez. Most importantly, Chuy predicted

the exact highway and direction in which the trafficker would be

traveling. In addition, (1) Chuy identified each digit of the

9 trafficker's license plate correctly (as opposed to missing one

digit); (2) the trafficker was traveling fewer than eight miles

from the border (as opposed to 62 miles); and (3) the agents

acted on a tip that was a few hours old (as opposed to two months

old). Gonzalez therefore stands as strong precedent for

concluding that the stop of appellant's vehicle was supported by

reasonable suspicion. See also Villalobos, 161 F.3d at 292

(upholding constitutionality of Border Patrol stop based in part

on anonymous informant's tip); Lopez-Gonzalez, 916 F.2d at 1014-

16 (upholding constitutionality of Border Patrol stop based in

part on informant's tip).

Appellant contends that the tipster in this case was either

anonymous or unreliable. This contention is based on appellant's

suggestion that it is possible that the individual that provided

tips to Luna under the name "Chuy" in the past was not the

individual who provided the July 29, 2001 tip under the same

name. We find this argument unavailing. Luna had successfully

relied on tips from "Chuy" in the past and had good reason to

believe – and did believe – that the July 29, 2001 tip from Chuy

would also be reliable. The reliability of the tip was confirmed

when agents in the field located the vehicle that Chuy had

identified, and then observed the vehicle travel in the direction

that Chuy had predicted it would travel.

Appellant's reliance on Florida v. J.L., 529 U.S. 266, 120

10 S.Ct. 1375, 146 L.Ed.2d 254 (2000), to establish that Chuy's tip

was not reliable is similarly unpersuasive. In J.L., the Supreme

Court held that an anonymous tip informing the police of a

subject’s readily observable location and appearance, but lacking

any predictive information or other "sufficient indicia of

reliability," does not give rise to reasonable suspicion to

justify a Terry stop. In J.L., the police received a tip from an

unknown and unnamed informant that a young black male wearing a

plaid shirt was standing at a particular bus stop and was

carrying a gun. See J.L., 529 U.S. at 268, 120 S.Ct. at 1377.

Sometime after the police received the tip, they proceeded to the

bus stop and saw three black males standing there, one of whom

wore a plaid shirt. See id. The officers approached the man in

the plaid shirt, frisked him and discovered a gun. See id.

The Supreme Court's decision in J.L. is distinguishable for

two reasons. First, the tip in J.L. came from an anonymous

source with no history of providing reliable tips. The J.L.

court noted that the veracity of such tips is more difficult to

gauge than those of informants and tipsters, like Chuy, who are

known to have provided reliable tips in the past. Id. at 270,

120 S.Ct. at 1378. Second, the tip in J.L. did not correctly

forecast "not easily predicted movements." Id. at 271, 120 S.Ct.

at 1379. This prompted the Supreme Court to conclude that "the

anonymous call concerning J.L. provided no predictive information

11 and therefore left the police without means to test the

informant's knowledge or credibility." Id. Here, the Border

Patrol agents had ample means to test the tipster's knowledge and

credibility. Chuy had provided reliable tips in the past and, in

this instance, informed Luna of the vehicle's color, make, model,

and plates, and its departure and destination plans. The agents

were able to confirm and track the car’s progress almost

immediately after receiving the tip.

This tip falls squarely within the ambit of situations in

which a "tip, as corroborated, exhibited sufficient indicia of

reliability to justify the investigatory stop." White, 496 U.S.

at 332, 110 S.Ct. at 2417. But even if we are to assume that the

tip alone was too unreliable to justify a stop, the tip

contributes, along with the other Brignoni-Ponce factors, to the

agents’ particularized suspicion. See Villalobos, 161 F.3d at

291. The Border Patrol agents who stopped appellant's vehicle,

unlike the officers in J.L., were investigating vehicles on

highways in proximity to the United States-Mexico border that are

well-known conduits for aliens and narcotics. The agents had

experience in conducting such investigations. Accordingly, we

conclude that the agents had reasonable suspicion to make an

investigatory stop of appellant's vehicle and that doing so did

not violate appellant's Fourth Amendment rights. In so

concluding, we reaffirm the notion that "the Fourth Amendment

12 seeks to prevent arbitrary police action, not to require absolute

certainty before law enforcement officers may investigate."

Villalobos, 161 F.3d at 292.

IV. CONCLUSION

The district court's denial of appellant's motion to

suppress is in all respects affirmed.

AFFIRMED.

*District Judge of the Eastern District of Louisiana, sitting by designation.

**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.