United States v. Daniel Bustamante

478 F. App'x 922
CourtCourt of Appeals for the Fifth Circuit
DecidedJuly 11, 2012
Docket11-40944
StatusUnpublished

This text of 478 F. App'x 922 (United States v. Daniel Bustamante) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Daniel Bustamante, 478 F. App'x 922 (5th Cir. 2012).

Opinion

PER CURIAM: *

Defendant-Appellant Daniel Busta-mante entered a conditional guilty plea to attempting to export a firearm from the United States to Mexico. He reserved his right to appeal the district court’s order denying his motion to suppress the firearm found in his truck. Bustamante alleges that the police violated the Fourth Amendment by stopping his truck without reasonable suspicion. We determine that the police had reasonable suspicion to stop Bustamante’s truck, and therefore affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Around 3:00 PM on January 18, 2011, the Laredo Police Department (“LPD”) Communications Division received a tip from a male telephone caller who refused to identify himself. The tipster stated that a bald, heavy-set man with tattoos on his arms was planning to transport assault rifles to “Los Zetas” 1 in Mexico in a blue pickup truck with license plate number AW7-8923. The truck would cross into Mexico via a ranch located off Pico Road. The tipster further stated that the truck was currently located at the intersection of San Eduardo Avenue and Garza Street. Although the tipster refused to identify himself, his cell phone number was collected by the Communications Division.

LPD Officer Roberto Garcia heard the tip broadcast over the radio from his office. He called dispatch to confirm the license plate number, and also received from dispatch the tipster’s cell phone number. The license plate check revealed that the blue truck was registered to Busta-mante; a criminal check on Bustamante revealed that he had previously been identified as a member of the Mexican Mafia prison gang and had been stopped once while driving the same blue truck. Garcia called the tipster, who repeated the tip. He then transmitted the results of the license plate and criminal checks to the LPD officers who were looking for the truck near the areas identified by the tipster. Another LPD officer reported over the radio that he knew that the Busta-mante family owned a ranch off Pico Road. The LPD officers could not locate the truck. Garcia called the tipster a second time, was told by the tipster that the truck had moved to San Dario Street, and Garcia himself traveled to that location. Still, he could not locate the truck. He called the tipster a third time; it was now about 4:00 PM. During this call, the tipster stated that he personally knew Bustamante and another individual, Javi, who involved in the weapons transport, and that he was present when the weapons were loaded into the truck; he further stated that he would try to find the truck, which had been relocated until darkness fell, and would call Garcia with an update.

Garcia went home around 5:00 PM, when his shift ended. About 6:00 PM, he received a call from the tipster. In this phone call, the tipster stated that the truck was parked next to a red truck in front of Javi’s house on Benavidez Street near the *924 intersection with San Eduardo Avenue and Bustamante was waiting until darkness to bring the weapons to the ranch off Pico Road. Garcia called one of his supervisors to inform him of the tipster’s information and to see if a plain-clothes officer could be sent to that location. He then relayed the information over the radio to dispatch and LPD units near Benavidez/San Eduardo. A plain clothes officer confirmed that the blue truck was parked next to a red truck at the location given by the tipster. LPD Lieutenant Montemayor advised over the radio not to approach the truck or the residence. A BOLO (“be on the lookout”) report for the blue truck was broadcast over the radio; the BOLO included Busta-mante’s name, the license plate number, that the truck was transporting weapons, and that it was headed for Pico Road.

LPD Officer Victor Barroso, whose normal patrol district included Pico Road, heard the BOLO over the radio and parked his police car just south of Pico Road to watch for Bustamante’s truck. Because the BOLO advised that there were likely weapons in the truck and that the driver of the truck was a member of the Mexican Mafia, Barroso intended — if he saw the truck — to make a “felony stop.” 2 About 7:00 PM, a few minutes after parking his car, Barroso saw the blue truck. He pulled behind the truck, confirmed the license plate number over the radio, and requested backup. “Seconds later,” a police car driven by LPD Officer Gerardo Jalomo arrived and Barroso initiated the stop. Bustamante immediately pulled over the truck. Barroso approached the driver’s side of the truck with his 12-gauge shotgun drawn and instructed Bustamante not to move. Monte-mayor had arrived at the scene by this time and removed Bustamante from his truck, handcuffed him, and placed him in Jalomo’s car. Barroso looked in the back of the truck and found a green rifle case on the backseat, containing two assault rifles. Bustamante was then placed under arrest.

Bustamante moved to suppress the evidence found in the truck, arguing that Barroso pulled over the truck without reasonable suspicion in violation of the Fourth Amendment. Garcia, Barroso, Jalomo, and an ATF agent testified at the suppression hearing. In a written order, the district court denied Bustamante’s motion. Bustamante entered a conditional guilty plea, reserving the right to appeal the district court’s denial of his motion to suppress; he timely appealed.

II. JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. “When the district court denies a motion to suppress, we review factual findings for clear error and conclusions of law de novo.” United States v. Gray, 669 F.3d 556, 562 (5th Cir.2012) (internal quotation marks omitted). We view the evidence in the light most favorable to the prevailing party. Id. “Whether specific facts give rise to reasonable suspicion is a question of law that we review de novo.” Jimenez v. Wood Cnty., Tex., 621 F.3d 372, 379 (5th Cir.2010).

III. DISCUSSION

A. Reasonable Suspicion Standard

“An investigative vehicle stop is permissible under Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968),] only *925 when the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot.” United States v. Martinez, 486 F.3d 855, 861 (5th Cir.2007) (internal quotation marks omitted). The Government bears the burden of proving reasonable suspicion. United States v. Gomez, 623 F.3d 265, 269 (5th Cir.2010).

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478 F. App'x 922, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-daniel-bustamante-ca5-2012.