United States v. Diaz-Borjas

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 27, 1999
• Docket: 98-2249
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 27 1999 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 98-2249 (D. Ct. No. CR-98-101-HB) MIGUEL DIAZ-BORJAS, (D. N. Mex.)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before ANDERSON, TACHA, and BALDOCK, Circuit Judges.

Defendant-Appellant Miguel Diaz Borjas entered a conditional guilty plea

to one count of possession with intent to distribute more than 50 kilograms of

marijuana. Pursuant to the plea agreement, defendant reserved his right to appeal

the district court’s denial of his motion to suppress evidence. Defendant now

appeals the district court’s denial of his motion to suppress, arguing that the

search of his vehicle was unconstitutional because authorities had no reasonable

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. suspicion or probable cause to stop his vehicle and he did not voluntarily consent

to the search. Our jurisdiction arises under 18 U.S.C. § 3742(a) and 28 U.S.C. §

1291. We affirm defendant’s conviction.

I.

On January 23, 1998, United States Border Patrol Agent Gilbert Garza was

working the primary inspection lane at a fixed border patrol checkpoint on I-10

several miles west of Las Cruces, New Mexico. Interstate 10, running along the

southern border of Mew Mexico to El Paso, Texas, is a known corridor for drug

trafficking. At about 7:30 a.m., an individual passing through the checkpoint

reported to Agent Garza that he had seen a car turn around prior to the

checkpoint. The informant described the vehicle as a small, grey sports car with a

black bra and Texas license plates, occupied and driven by a single male. Based

on this information, Agent Garza, accompanied by Border Patrol Agent Ken

Dalton, a seven-year veteran, set forth to locate the described vehicle.

Approximately ten minutes later, Agents Garza and Dalton spotted a

vehicle driving east on I-10 (away from the checkpoint) matching the informant’s

description. The car was a grey Geo Storm with Texas license plates, equipped

with a black bra. A single male occupant drove the car. The agents pulled up

beside the car and observed the driver. The driver exhibited signs of nervousness,

tightly gripping the steering wheel and refusing to even glance at the marked

-2- patrol cruiser. Defendant continued to avoid eye contact with the agents even

after Agent Dalton repeatedly waved to defendant to get his attention. The agents

pulled over the vehicle. The stop occurred approximately twenty-five miles from

the Mexican border.

After stopping the car, Agent Garza remained in the patrol cruiser to

conduct a vehicle records check. Agent Dalton approached defendant and asked

if he was a citizen and from where he was traveling. Defendant responded that he

was a United States citizen traveling from Deming, New Mexico. Because

Deming is west of the I-10 checkpoint and defendant was spotted traveling east,

Agent Dalton knew that defendant’s answer was inconsistent with the information

that the car had turned around before the checkpoint. Agent Dalton asked

defendant to step to the rear of the vehicle to avoid traffic. At that time, Agent

Garza, who had learned from the vehicle check that the car had not been reported

stolen, approached defendant and Agent Dalton. Agent Garza identified himself

and asked defendant why he had turned around prior to the checkpoint.

Defendant stated that he had received a phone call from his brother in Juarez

informing him that his sister was ill and that he needed to return immediately to

Juarez.

Agents Dalton and Garza requested defendant to wait in his car while they

conferred. Defendant consented. After discussing their observations, including

-3- defendant’s inconsistent stories regarding his point of origin, Agents Dalton and

Garza requested permission to conduct a search of the vehicle with a drug-

detecting canine. Agent Garza approached the defendant alone and requested his

permission to “run a dog around [his] vehicle to inspect it.” Motion to Suppress

Hr’g Tr. at 13. Defendant consented.

The drug-detecting canine and its handler arrived approximately fifteen

minutes later. The dog alerted to the rear bumper of the vehicle. Thereafter, the

agents took the car to a border patrol station for a thorough search. Authorities

ultimately recovered 122 pounds of marijuana hidden in the car’s rear bumper and

dashboard.

On February 18, 1998, authorities charged defendant in a one-count

indictment with possession with intent to distribute more than 50 kilograms of

marijuana in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), (b)(1)(c). On

April 2, 1998, defendant filed a motion to suppress the drugs seized and

statements he made as a result of the border patrol stop. On May 11, 1998, the

district court denied the motion following an evidentiary hearing. The next day

defendant entered a conditional guilty plea to the indictment, reserving his right

to appeal the district court’s denial of his motion to suppress. The district court

entered judgment against the defendant and sentenced him to twenty-seven

months imprisonment followed by a three-year period of supervised release.

-4- II.

Mr. Diaz Borjas argues that the district court erred in denying his motion to

suppress because the search of his vehicle violated the Fourth Amendment.

Specifically, defendant contends: (1) Agents Dalton and Garza did not have

reasonable suspicion or probable cause to stop his vehicle, and (2) he did not

voluntarily consent to the canine search of his vehicle. In reviewing the denial of

a motion to suppress, “we accept the district court’s factual findings unless

clearly erroneous and view the evidence in the light most favorable to the

prevailing party.” United States v. De La Cruz-Tapia, 162 F.3d 1275, 1277 (10th

Cir. 1998). We review de novo the ultimate determination of whether a search or

seizure is reasonable under the Fourth Amendment. See id.

A.

Our law is well established regarding when roving border patrol agents may

stop a vehicle without running afoul of the Fourth Amendment. “Border patrol

agents ‘on roving patrol may stop vehicles only if they are aware of specific

articulable facts, together with rational inferences from those facts, that

reasonably warrant suspicion,’ that those vehicles’ occupants may be involved in

criminal activity.” United States v. Cantu, 87 F.3d 1118, 1121 (10th Cir. 1996)

(quoting United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975)). The

Supreme Court has identified eight non-exclusive factors border patrol agents

-5- may consider when deciding whether to stop a vehicle:

(1) characteristics of the area in which the vehicle is encountered; (2) the proximity of the area to the border; (3) the usual patterns of traffic on the particular road; (4) the agent’s previous experience with alien traffic; (5) information about recent illegal border crossings in the area; (6) the driver’s behavior, including any obvious attempts to evade officers; (7) characteristics of the vehicle; and (8) the appearance that the vehicle is heavily loaded.

United States v. Lopez-Martinez, 25 F.3d 1481, 1483-84 (10th Cir. 1994); see

also Brignoni-Ponce, 422 U.S. at 884-85. However, determining whether a roving

border patrol has reasonable suspicion to stop a vehicle does not depend on any

one factor, nor must agents identify a minimum number of factors to establish

reasonable suspicion. See Lopez-Martinez, 25 F.3d at 1484. Rather, we must

consider the totality of the circumstances. See, e.g., id.

“In examining the totality of the circumstances, ‘[c]ommon sense and

ordinary experience are to be employed and deference is to be accorded to a law

enforcement officer’s ability to distinguish between innocent and suspicious

actions.’” De La Cruz-Tapia, 162 F.3d at 1277 (quoting United States v. Wood,

106 F.3d 942, 946 (10th Cir. 1997)). Furthermore, reasonable suspicion may be

based on “‘a series of acts, each of them perhaps innocent in itself, but which

taken together warranted further investigation.’” Lopez-Martinez, 25 F.3d at

1484 (quoting Terry v. Ohio, 392 U.S. 1, 22-23 (1968)). An agent cannot,

however, predicate a vehicle stop solely upon a “hunch.” See De La Cruz-Tapia,

-6- 162 F.3d at 1277. “While the necessary level of suspicion is considerably less

than proof of wrongdoing by a preponderance of the evidence, the Fourth

Amendment requires some minimal level of objective justification.” Cantu, 87

F.3d at 1121 (internal quotation marks and citations omitted).

The undisputed facts show that Agents Dalton and Garza had reasonable

suspicion to stop Mr. Diaz Borjas. Before stopping defendant, the agents had

learned that a car matching the defendant’s vehicle had been seen turning around

prior to the fixed border patrol checkpoint. Had the border patrol agents

themselves witnessed defendant’s car turn around to evade the checkpoint, this

would constitute one factor to support a finding of reasonable suspicion. See,

e.g., United States v. Merryman, 630 F.2d 780, 783 (10th Cir. 1980). Indeed,

Agent Dalton testified at the evidentiary hearing that, in his experience,

approximately ninety percent of vehicles that turn around to avoid the checkpoint

do so because the vehicle’s occupants are involved in illegal activity.

Defendant argues, however, that the fact that he turned his car around to

avoid the checkpoint cannot support a finding of reasonable suspicion in this case

because a third party witnessed the act and reported it to border patrol officials. 1

1 To the extent plaintiff argues that the informant’s tip cannot support a finding of reasonable suspicion because the evidence does not establish precisely how far away defendant was from the checkpoint when he turned around, we conclude that this argument has no merit here. The informant reported defendant’s turn-around to Agent Garza shortly after he witnessed it, and Agents Dalton and Garza encountered the car

-7- An informant’s tip may justify a roving border patrol stop “if under the totality of

the circumstances the tip furnishes both sufficient indicia of reliability and

sufficient information to provide reasonable suspicion that criminal conduct is,

has, or is about to occur.” United States v. Leos-Quijada, 107 F.3d 786, 792

(10th Cir. 1997). In making this determination, we consider: (1) the informant’s

credibility or veracity; (2) the basis of the informant’s knowledge; and (3)

whether authorities are able to independently corroborate the reliability of the tip.

See id.

When passing through the checkpoint, the informant in this case reported to

border patrol agents that he had seen defendant’s car turn around on I-10

apparently to avoid the checkpoint. The informant had no reason to lie, and he

provided sufficient detail to Agent Garza to indicate that he was, in fact, telling

the truth. Second, the informant’s knowledge was based on his personal

observations. It is difficult to imagine a much more reliable source of knowledge.

Finally, Agents Dalton and Garza adequately corroborated the informant’s

account. Within minutes after receiving the tip, Agents Dalton and Garza spotted

a vehicle matching the informant’s description driven by one male occupant on I-

approximately ten minutes after receiving the tip. Even traveling at great speed, we find that in order for the agents to have reached defendant’s vehicle that quickly, Mr. Diaz Borjas must have turned around in sufficient proximity to the checkpoint to warrant a reasonable inference that he was doing so to evade the border patrol agents there.

-8- 10 away from the checkpoint. See United States v. Villalobos, 161 F.3d 285,

290-91 (5th Cir. 1998) (finding sufficient corroboration when officers found car

matching informant’s description traveling along roads known for smuggling and

the car had entered the U.S. from Mexico); Leos-Quijada, 107 F.3d at 793

(finding sufficient corroboration when officer encountered vehicle matching

known informant’s description, with the same number of occupants as the

informant had observed, traveling in the same direction and rate of speed as the

informant reported); United States v. Lopez-Gonzalez, 916 F.2d 1011, 1014 (5th

Cir. 1990) (finding corroboration when two vehicles matching the informant’s

description passed a border patrol agent at the same location and time frame

predicted in the tip). Consequently, we find that Agents Dalton and Garza were

entitled to rely upon the observations reported to them by the informant and that

those observations may be used to support a finding of reasonable suspicion here.

Cf. Leos-Quijada, 107 F.3d at 793 (finding informant’s tip reliable when it was

from a reliable source, based on personal observation, and officers independently

corroborated the tip).

In addition, other evidence bolsters a finding of reasonable suspicion in this

case. When Agents Dalton and Garza pulled along side defendant’s car, he failed

to make eye contact with them. While failure to make eye contact may be

insufficient itself to warrant a finding of reasonable suspicion, see, e.g., De La

-9- Cruz-Tapia, 162 F.3d 1275, 1277 n.1 (10th Cir. 1998) (noting that Ninth Circuit

has “rejected allowing eye contact and avoidance of eye contact to qualify as

suspicious behavior”), here, the failure to acknowledge the presence of the

marked patrol cruiser was suspicious given that Agent Dalton repeatedly waved

his hand at defendant to get his attention, see United States v. Aldaco, 168 F.3d

148, 152 (5th Cir. 1999) (noting that avoidance of eye contact may or may not be

entitled to weight, but that it is an appropriate factor to consider in observing a

defendant’s overall behavior); cf. United States v. Barbee, 968 F.2d 1026, 1028-

29 (10th Cir. 1992) (stating that a border patrol agent’s belief that vehicle

occupants are “slouching down” to avoid detection may create reasonable

suspicion). The agents also observed defendant tightly grip the steering wheel as

they followed him. See United States v. Benitez, 899 F.2d 995, 998 (10th Cir.

1990) (upholding district court’s reasonable suspicion determination based, in

part, on driver’s “white knuckles” grip on steering wheel). Furthermore, the

defendant was stopped approximately twenty-five miles from the Mexican border.

See Lopez-Martinez, 25 F.3d at 1485 (concluding that stop by border patrol

agents within 60 miles of Mexican border weighed in favor of a finding of

reasonable suspicion); 8 C.F.R. § 287.1(a)(2) (defining “reasonable distance” for

immigration officials to conduct warrantless stops pursuant to 8 U.S.C. §

1357(a)(3) as “within 100 air miles from any external boundary of the United

- 10 - States”). We find that these facts, combined with the information Agents Dalton

and Garza received regarding defendant’s attempt to avoid the border patrol

checkpoint, support a finding of reasonable suspicion that justified stopping

defendant’s vehicle. Therefore, the initial stop of Mr. Diaz Borjas did not offend

his Fourth Amendment rights. 2

B.

Mr. Diaz Borjas also argues that even if he was not unlawfully detained,

the search of his car violated his Fourth Amendment rights because his consent to

the search was involuntary. However, whether defendant gave voluntary consent

to conduct the dog sniff on his vehicle is irrelevant because “consent is not

required for a dog sniff of a lawfully detained vehicle.” United States v. Chavira,

9 F.3d 888, 890 n.1 (10th Cir. 1993); see also United States v. Massie, 65 F.3d

843, 849 (10th Cir. 1995). Once the dog alerted to the rear bumper of defendant’s

car, the border patrol agents had probable cause to conduct a full search of the

vehicle. See Massie, 65 F.3d at 849. Therefore, we hold that the search of

defendant’s vehicle did not constitute a Fourth Amendment violation and the

2 While defendant contested the constitutionality of the initial stop, he did not challenge the legality of his subsequent detention in his opening brief. Thus, defendant has waived the issue of whether his detention until and during the dog sniff inspection violated his Fourth Amendment rights. See, e.g., State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994) (asserting that failure to raise an issue in the opening brief waives the issue).

- 11 - district court properly denied Mr. Diaz Borjas’ motion to suppress. AFFIRMED.

ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge

- 12 -