United States v. Hernandez-Hernandez

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-41414

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN ANTONIO HERNANDEZ-HERNANDEZ Defendant-Appellant.

Appeal from the United States District Court For the Southern District of Texas (L-00-CR-192)

September 6, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Juan Antonio Hernandez-Hernandez appeals his conviction for

conspiracy to possess and possession with intent to distribute in

excess of 100 kilograms of marijuana. Hernandez argues that the

district court should have suppressed the evidence obtained in a

stop of his vehicle near the Mexican border because federal agents

lacked reasonable suspicion that the vehicle was involved in

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. illegal activity. We agree with the district court that the

federal agents had reasonable suspicion.

I

On January 26, 2000, at 12:15 p.m., Laredo North Station

Border Patrol agents received a dispatch that hidden seismic

sensors had been triggered within the 5 D Ranch. The 5 D Ranch is

located in the “Mines Road” area, which is a 5-7 mile stretch

between the San Isabelle Creek and the Columbia Bridge. The 5 D

Ranch borders the Rio Grande River, which separates Texas from

Mexico. Border Patrol Agent Darren Louck proceeded to the 5 D

Ranch and set up surveillance of the main gate.

Within thirty minutes, Agent Louck saw a black Dodge pickup

truck arrive at the main gate. The Dodge had been customized to

ride lower to the ground and had wide tires, which Louck concluded

was not the type of vehicle associated with agricultural work on

the ranch. Louck also concluded that the Dodge did not belong to

ranch employees – he was familiar with the ranch workers and their

three vehicles. Louck’s suspicion was additionally aroused by the

fact that agricultural traffic always used another gate closer to

the fields and that no crops were being grown at this time. Louck

saw the driver of the Dodge unlock the gate (which had a

combination lock on it) and drive inside.

2 Sensor activity inside the 5 D Ranch continued for the next 30

minutes. Agent Louck then observed two men in a black Ford pickup

truck approach the main gate to leave the ranch. Agent Louck also

did not recognize the Ford as one of the vehicles belonging to

employees of the ranch. Close behind the Ford was the Dodge, which

followed the Ford out of the gate, whereupon the driver of the

Dodge closed the gate, and both trucks drove South on Mines Road.

His suspicion aroused by the vehicles traveling as a pair and

not belonging to anyone who worked at the ranch, the proximity of

the ranch to the border, the seismic sensor warnings, and the large

amount of drugs that had been seized on this particular stretch of

road over the last several months, Agent Louck communicated his

observations to his supervisor, Agent Rick Martinez. Martinez then

stopped the Ford to conduct an immigration inspection. The

occupants of the Ford provided Martinez with a story about their

business at the ranch which Martinez did not believe. Subsequently

the Dodge was stopped by two other Border Patrol agents and

Martinez. The agents saw marijuana in plain view in the back seat

of the truck, and proceeded to seize the marijuana and arrest

Hernandez. At this time, the Ford drove past and Hernandez

identified its occupants as the men who had hired Hernandez to

transport the marijuana. The two occupants of the Ford were also

arrested.

Hernandez was tried before the court on stipulated facts.

Hernandez moved pretrial for suppression of all evidence obtained

3 as a result of the Border Patrol stop of his vehicle. The district

court overruled the motion following a hearing. Hernandez was

convicted of conspiracy possess with intent to distribute more than

100 kilograms of marijuana in violation of 21 U.S.C. §§ 846,

841(a)(1) and 841(b)(1)(B) and with possession with intent to

distribute approximately 1340 pounds of marijuana in violation of

21 U.S.C § 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2. He now

appeals his conviction.

II

We review the district court’s finding that the stop was

justified by reasonable suspicion de novo.1 We view evidence from

the suppression hearing in this case in the light most favorable to

the Government.2

Border Patrol agents may stop a vehicle during a roving patrol

without violating the Fourth Amendment’s reasonableness requirement

when the agents “are aware of specific articulable facts, together

with rational inferences from those facts, that reasonably warrant

suspicion...” that the vehicle is being employed in illegal

activities, such as the transportation of illegal aliens.3 We have

1 United States v. Chavez-Chavez, 205 F.3d 145, 147 (5th Cir. 2000). 2 Id. 3 United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975).

4 held that Border Patrol agents can consider several factors in

deciding whether to stop a vehicle, including: “(1) characteristics

of the area where the vehicle is encountered; (2) proximity to the

border; (3) the usual traffic pattern on the road; (4) previous

experience with criminal activity; (5) information about recent

criminal activity in the area; (6) the driver’s behavior; (7) the

appearance of the vehicle, its type and whether it appears loaded;

and (8) the number, appearance, and behavior of the passengers.”4

Utilizing these factors, and viewing the evidence in the light

most favorable to the Government, we believe that the Border Patrol

agents had reasonable suspicion to stop Hernandez’s vehicle.

Hernandez urges us to reverse the district court in part because

his knowledge of the combination on the lock to the gate provided

some objective evidence that he was authorized to enter the ranch.

In contrast, Hernandez notes, we found reasonable suspicion in

Inocencio when “the ranch owners had specifically identified the

vehicles that were authorized to access the private ranch road.”5

Hernandez misses the mark. “Reasonable suspicion ... is not

limited to an analysis of any one factor.”6 In fact, in Inocencio

we expressly noted that one such factor, proximity to the border,

4 Chavez-Chavez, 205 F.3d at 148 (citing United States v. Inocencio, 40 F.3d 716, 722 (5th Cir. 1995)). 5 Inocencio, 40 F.3d at 723. 6 Id. at 722.

5 was absent.7 Nevertheless, we held that this was not dispositive

and that the federal agents in that case had reasonable suspicion.

While Hernandez points to certain factual dissimilarities between

this case and Inocencio, this ignores that other factors weigh more

heavily in favor of reasonable suspicion in this case, such as the

seismic sensor alerts and the proximity of the 5 D Ranch to the

border.

III

For these reasons, Hernandez’s conviction is AFFIRMED.

7 Id. at 723.