United States v. Herrera

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 14, 2000
• Docket: 99-50443
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 99-50443 _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GREGG HERRERA, JR.,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Western District of Texas (P-98-CR-281-1) _________________________________________________________________

July 13, 2000

Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Convicted for possession with intent to distribute marijuana,

Gregg Herrera, Jr., challenges the denial of his motion to

suppress, contesting the validity of the investigatory stop by a

Border Patrol Agent that led to the discovery of the marijuana. 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. I.

The sole witness at the suppression hearing was Border Patrol

Agent Myers. He had been stationed in Presidio, Texas, for two and

one-half years, had participated in hundreds of cases involving

apprehension of illegal aliens, and had been involved in over ten

narcotics smuggling cases. Upon arriving for duty at 6:00 p.m. on

25 November 1998 (Thanksgiving), his supervisor instructed him to

patrol Highway 67 north of Presidio, and to be on the lookout for

four suspected illegal aliens last seen traveling on foot

approximately one or two miles north of Presidio.

Presidio, with a population of about 3,500, is located on the

border with Mexico. Ojinaga, Presidio’s sister city across the

border, is known as a “staging” area for narcotics and alien

smuggling from Mexico into the United States. Highway 67 is the

only road north out of Presidio.

At approximately 8:00 p.m., two hours after going on duty, and

while patrolling Highway 67 five or six miles north of Presidio,

the Agent observed an older model four-door sedan northbound on

Highway 67. The sedan appeared to be heavily loaded, because it

was riding low in the rear.

The Agent began following the sedan, and confirmed his initial

observation that the rear of the vehicle was riding low. He also

observed that the sedan had dark tinted windows and a muddy film on

the back window, which prevented him from seeing the vehicle’s

interior.

2 The Agent ran a registration check on the sedan and determined

that it was registered to an individual from Natalia, Texas.

Because he did not know where Natalia is located in Texas, and the

sedan did not look familiar to him, the Agent believed the vehicle

was not from the local area.

After following and observing the sedan for about 11 miles,

the Agent suspected that its driver might have picked up the four

suspected illegal aliens, and that this was the reason the vehicle

was riding low in the rear. Because he could not see into the

vehicle to determine the number of occupants, he decided, about 17

miles north of Presidio, to stop — and did stop — the vehicle to

conduct an immigration inspection.

Herrera, the driver and sole occupant of the sedan, answered

questions about his citizenship. He then consented to a search of

the vehicle, during which the Agent discovered marijuana behind the

back seat.

In denying Herrera’s suppression motion, the district court

held: the Agent articulated specific facts that gave rise to his

reasonable suspicion that Herrera might be involved in illegal

activity; Herrera validly consented to the search of the vehicle;

and, when the Agent smelled marijuana in the passenger compartment,

he had probable cause to search the vehicle.

II.

Herrera challenges only the validity of the initial stop.

3 A.

The Government contends we should review only for plain error,

because Herrera did not specifically contend in the district court

that the stop was unconstitutional. See United States v. Moser,

123 F.3d 813, 823-24 (5th Cir.) (although defendant preserved one

Fourth Amendment ground, his failure to raise “knock and announce”

issue resulted in plain-error review), cert. denied, 522 U.S. 1020,

1035 (1997), 522 U.S. 1092 (1998).

The purpose of requiring that an issue be raised in the

district court is to allow presentation of evidence and argument,

and to provide the district court an opportunity to rule on the

issue. See United States v. Burton, 126 F.3d 666, 671 (5th Cir.

1997). Although Herrera did not use the terms “reasonable

suspicion” or “investigatory stop” in his suppression motion, the

Government apparently understood the motion to raise that issue,

asserting in its response: “Based on a totality of the

circumstances Agent Myers had reasonable suspicion to stop the

vehicle”.

At the suppression hearing, the parties elicited testimony

from the Agent on the bases for the stop. And, the district

court’s ruling that the Agent articulated specific facts supporting

a reasonable suspicion that Herrera was engaged in illegal activity

demonstrates its understanding that the constitutionality of the

stop was at issue.

4 Under these circumstances, plain error review is not

applicable. Instead, we review for clear error the district

court’s factual findings, and review de novo its legal conclusions,

including the determination that reasonable suspicion supported the

investigatory stop. E.g., United States v. Zapata-Ibarra, 212 F.3d

877, ___, 2000 WL 650017, at *2 (5th Cir. 2000).

B.

“Border Patrol agents on roving patrol may stop a vehicle only

if they are aware of specific articulable facts, together with

rational inferences from those facts, that reasonably warrant

suspicion that that particular vehicle is involved in illegal

activity.” United States v. Villalobos, 161 F.3d 285, 288 (5th

Cir. 1998) (citing United States v. Cortez, 449 U.S. 411 (1981);

and United States v. Brignoni-Ponce, 422 U.S. 873 (1975)).

The following, well known factors are relevant in determining

whether reasonable suspicion existed:

(1) proximity to the border; (2) known characteristics of the area in which the vehicle is encountered; (3) usual traffic patterns on the particular road; (4) the agent’s previous experience in detecting illegal activity; (5) information about recent illegal trafficking in aliens or narcotics in the area; (6) particular aspects or characteristics of the vehicle; (7) behavior of the driver; and (8) the number, appearance, and behavior of the passengers.

Zapata-Ibarra, 212 F.3d at ___, 2000 WL 650017, at *2.

Our analysis is not limited to any one factor; rather, reasonable suspicion is a fact-

5 intensive test in which we look at all circumstances together to weigh not the individual layers but the laminated total, and factors that ordinarily constitute innocent behavior may provide a composite picture sufficient to raise reasonable suspicion in the minds of experienced officers.

Id. (brackets, internal quotation marks, and citations omitted).

See also United States v. Gonzalez, 190 F.3d 668, 671 (5th Cir.

1999) (“The validity of a stop depends upon the totality of the

circumstances known to the agents making the stop.”); Villalobos,

161 F.3d at 288 (“each case must be examined from the totality of

the circumstances known to the agent, and the agent’s experience in

evaluating such circumstances” (internal quotation marks and

citation omitted)).

Herrera contends that, because the Agent did not claim

reliance on a belief that Herrera’s vehicle had recently crossed

the border, the district court erred by applying a “presumption”

that, because the Agent first observed the vehicle within 50 miles

of the border, the Agent had reason to believe the vehicle had come

from the border. He contends further that, as a result of

improperly applying the border-origin presumption, the district

court accorded improper weight to the other factors offered by the

Agent to support the reasonableness of the stop.

Irrespective of the validity of Herrera’s contentions, “the

district court’s denial of the motion to suppress should be upheld

if there is any reasonable view of the evidence to support it”.

6 Gonzalez, 190 F.3d at 671 (internal quotation marks and citations

omitted); see also United States v. Moreno-Chaparro, 180 F.3d 629,

632 (5th Cir. 1999) (“whether the agent had reason to believe that

the vehicle in question had come from the border ... alone is not

controlling and other factors must be given appropriate

consideration in the determination whether reasonable suspicion

existed”).

Considering the totality of circumstances, the Agent

articulated specific facts to support a reasonable suspicion

justifying the investigatory stop. The Agent, who had two and one-

half years’ experience in the area, first observed Herrera

traveling in a vehicle on Highway 67, about five miles north of the

border town of Presidio, a route well-known for illegal alien and

narcotics trafficking. The Agent had received instructions to be

on the lookout for four suspected illegal aliens who were last seen

walking one or two miles north of Presidio. His suspicion that

those individuals might be in Herrera’s vehicle was based on the

following: he thought it possible that the suspected aliens might

have been hitchhiking along Highway 67 in the area where they were

last seen, and perhaps had obtained a ride; in his experience, that

type of four-door sedan was a common alien smuggling vehicle; and

it appeared to be heavily loaded, because it was riding low in the

rear. He was unable to determine the number of people in the

7 vehicle without stopping it, because of the window tinting, muddy

film on the windows, and lack of light at the time.

These specific articulable facts, and the rational inferences

drawn from them, reasonably warranted the Agent’s suspicion that

the vehicle was involved in illegal activity. Accordingly, the

Agent’s decision to stop the vehicle to ascertain the number of

people in it, and their citizenship, did not violate the Fourth

Amendment.

III.

For the foregoing reasons, the denial of Herrera’s motion to

suppress is

AFFIRMED.