F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 22 1997 TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. Case No. 97-2009 (D.C. No. CR. 96-376-HB) DANIEL HUEREQUE-MERCADO, (District of New Mexico)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before TACHA, HENRY, and LUCERO, Circuit Judges.
The defendant Daniel Huereque-Mercado appeals the district court’s order denying
his motion to suppress evidence discovered in Mr. Huereque-Mercado’s pickup truck
after a traffic stop by a roving border patrol agent. He argues that the stop was not
supported by reasonable suspicion and therefore violated the Fourth Amendment. We
disagree and therefore affirm the district court’s decision.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The 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. I. BACKGROUND
In an indictment filed in July 1996, the government charged Mr. Huereque-
Mercado with possession of more than 100 kilograms of marijuana with the intent to
distribute it, a violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). Mr. Huereque-Mercado
moved to suppress the evidence that a border patrol agent had discovered in Mr.
Huereque-Mercado’s pickup truck on June 9, 1996. The district court conducted an
evidentiary hearing and denied the motion. Mr. Huereque-Mercado entered a conditional
guilty plea, and the court sentenced him to sixty months’ imprisonment.
As developed at the evidentiary hearing, the record indicates that Mr. Huereque-
Mercado was stopped by United States Border Patrol Agent Joseph Muniz around 7:30
a.m. on June 9, 1996 as he proceeded north on New Mexico Highway 11, approximately
twenty-one miles north of the Mexican border. Agent Muniz testified that, as he was
driving south on Highway 11, he saw a late model pickup truck with Arizona plates
heading north.
For several reasons, Agent Muniz suspected that the driver of the truck might be
engaged in smuggling contraband into the United States from Mexico. First, he said,
Highway 11 was a preferred route for smugglers because it allowed them to drive north
and avoid I-10, the more heavily traveled and patrolled interstate highway. Also, a paved
road intersecting Highway 11 runs parallel to the border between the United States and
Mexico about three miles north of it, in some places passing within a quarter of a mile of
2 it. Additionally, the agent testified, the early morning is a preferred time for smugglers
because border patrol agents change shifts then, and, as a result, there are fewer agents on
the road.
According to Agent Muniz, the kind of vehicle that he saw also made him
suspicious--“[p]ickups are a preferred type of vehicle that smugglers like to use because
of their roominess.” See Rec. vol. I at 57 (Tr. of Evidentiary Hr’g of Sept. 5, 1996).
Agent Muniz also noted that the pickup had Arizona plates. “That caught [his] attention
because Arizona is one of the more popular destinations for smuggling loads that
[originate] out of the Columbus [, N. M.] area.” Id.
Agent Muniz turned around and started following the truck as it proceeded north
on Highway 11. He then observed that the pickup had a large chrome bumper and was
missing one of its license plate lights. He explained that these observations provided
further grounds for suspicion because he knew of several instances in which the bed of a
pickup had been modified so that it could be used to transport contraband and in which
the same type of bumper had been used to conceal the modifications. Id. at 57-58. Quite
often, he added, smugglers who modify pickup beds fail to reinstall the electrical
connections and, as a result, some of their vehicles’ lights do not function. Id. at 58-59.
As he followed the pickup, Agent Muniz called for vehicle registration
information. He learned that the truck was registered to two men from Phoenix (neither
one of which was the defendant Mr. Huereque-Mercado) and that the vehicle had not
3 passed through one of the designated ports of entry into the United States. To Agent
Muniz, both of these facts were suspicious. As to the addresses of the owners, he said
that Phoenix was a popular destination city for smuggling. As to the fact that the truck
had not passed through an official port of entry, Agent Muniz said that it was unusual
because most people in the area usually drove into the border town of Palomas, Mexico
to sight-see or shop. Id. at 60.
Finally, as he followed the vehicle, Agent Muniz noticed air-freshener hanging
from the rear-view mirror. He explained that air-fresheners were frequently used to mask
the odor of illegal drugs. Agent Muniz said that even drug smugglers hiding drugs in
secret compartments in the back of pickups use air freshener, “maybe [because of] a sense
of paranoia, that somebody can detect the odor.” Id. at 62.
Based on all these facts, Agent Muniz stopped the pickup. As he approached it, he
noticed a vinyl cover over the bed. He saw the driver’s baggage in the cab, along with a
CB radio, a cell phone, and a pager on the dashboard. There was a strong odor of air
freshener. He questioned the driver, Mr. Huereque-Mercado, who said he was a resident
alien and produced a resident alien card. Agent Muniz asked Mr. Huereque-Mercado
who owned the truck, and the agent became even more suspicious when Mr. Huereque-
Mercado, contradicting the information Agent Muniz had received over the radio about
the truck’s registration, said that he owned it.
4 Agent Muniz then asked permission to search the truck, and Mr. Huereque-
Mercado agreed. He discovered several large packages wrapped in paper in the bed of
the pickup and asked Mr. Huereque-Mercado what they contained. After Mr. Huereque-
Mercado smiled and shrugged his shoulders, Agent Muniz placed him under arrest.
Agent Muniz then brought his drug-sniffing dog over to the truck. The dog alerted to the
packages in the back of the pickup, and Agent Muniz discovered that they contained 673
pounds of marijuana.
On cross-examination, Mr. Huereque-Mercado extracted several admissions that
impeached Mr. Muniz’s testimony to some degree. First, Agent Muniz admitted that
there was no indication that Mr. Huereque-Mercado knew about the morning shift change
of border patrol agents. Also, the agent explained that the shift change occurred at 6:00
a.m., significantly earlier than the 7:30 a.m. stop and arrest at issue here. Cross-
examination also revealed that Agent Muniz had no idea what percentage of vehicles on
Highway 11 had out-of-state plates, what percentage were pickup trucks, or what
percentage of pickup trucks had large bumpers. He also admitted that the truck was not
dusty or muddy, as it might have been if it had crossed the border by leaving paved roads
to avoid detection.
Mr. Huereque-Mercado then called several witnesses in support of his motion to
suppress. An engineer from the New Mexico Highway and Transportation Department
testified that, in 1994, the average daily traffic count was 2,649 vehicles (north and south
5 bound) for the section of Highway 11 at issue in this case. See Rec. vol. II at 85 (Tr. of
Evidentiary Hr’g of Sept. 5, 1996). For 1995, the projected traffic count was 2,714. See
id. at 86. A service department manager for a car dealership testified that it is “quite
common” for individuals buying pickups to order special bumpers that may be used for
towing. See id. at 89. After examining a photograph of the bumper on Mr. Huereque-
Mercado’s pickup, the manager said that he had seen many like it. The manager also said
that it was not unusual to find a pickup truck with a larger bumper that had only one
license plate light. However, on cross-examination the manager admitted that there was
no towing ball on Mr. Huereque-Mercado’s truck and that, as a result, the large bumper
did not appear to have been used for the most common lawful purpose.
Mr. Huereque-Mercado then presented testimony from two witnesses who had
counted the passing vehicles on Highway 11 between approximately 7:00 and 8:00 a.m. at
the location of the instant traffic stop. The first of these witnesses testified that on one
morning she had counted forty-one vehicles, noting that twenty of them were pickup
trucks, vans, or sport utility vehicles and that one or two of the vehicles had Arizona
plates. See id. at 94-95. She also saw three border patrol vehicles.
The second of these witnesses testified that he had counted vehicles at the same
time at the same spot on two other mornings. On the first of these mornings, he counted
forty-five vehicles (including twenty-two vans, pickups, or sport utility vehicles; ten
vehicles with either out-of-state plates, Mexican plates, or no plates at all; and five law
6 enforcement vehicles). See id. at 106-07. On the second morning, he counted fifty-three
vehicles (twenty-nine vans, pickups, or sport utility vehicles; thirteen vehicles with out-
of-state plates, Mexican plates, or no plates at all; and one border patrol vehicle). See id.
at 109-110.
At the conclusion of the evidence, the district court issued an oral ruling denying
Mr. Huereque-Mercado’s motion to suppress. In its subsequent written order, the court
relied on the following factors in concluding that Agent Muniz had a reasonable suspicion
that Mr. Huereque-Mercado was engaged in criminal activity as he drove north on
Highway 11 on the morning of June 9, 1996:
(1) New Mexico [H]ighway 11 is the only paved road in the area leading directly north from the United States-Mexico border and is a notorious smuggling passageway for both contraband and illegal aliens. (2) The time at which he first noticed Defendant’s vehicle is the station shift change, a preferred time for smugglers to attempt to move contraband north. (3) The type of vehicle Defendant was driving is commonly used to smuggle drugs or aliens. (4) Defendant’s vehicle had an Arizona license plate, which is [a] common destination for many illegal smuggling loads crossing the border. (5) The port of entry lane check indicated the vehicle had not come though the border. (6) An air freshener was hanging from the vehicle’s mirror; such air fresheners commonly are used to mask the odor of illegal drugs. (7) Based on his experience, the vehicle’s unusually large rear bumper and the missing rear license plate light indicated the bed of the truck may have been altered.
Rec. vol. I at 29-30 (Memorandum Opinion and Order filed Sept. 13, 1996).
7 II. DISCUSSION
On appeal, Mr. Huereque-Mercado challenges the district court’s conclusion that
when he stopped the pickup Agent Muniz had a reasonable suspicion that Mr. Huereque-
Mercado was committing a crime. He contests each factor relied on by the district court
and the government, arguing that the stop violated the Fourth Amendment and the
evidence seized should therefore be suppressed.
In reviewing the denial of a motion to suppress, we must accept the district court’s
factual findings unless they are clearly erroneous. United States v. Lopez-Martinez, 25
F.3d 1481, 1483 (10th Cir. 1994). We “must consider the evidence in the light most
favorable to the government.” United States v. Maestas, 2 F.3d 1485, 1490 (10th Cir.
1993). However, we review de novo the ultimate determination of whether a search or
seizure is reasonable under the Fourth Amendment. Lopez-Martinez, 25 F.3d at 1483.
As the parties and the district court have noted, border patrol officers on roving
patrol are not required to establish probable cause before making a traffic stop. See
United States v. Brignoni-Ponce, 422 U.S. 873, 881-82 (1975). Instead, border patrol
agents may make traffic stops upon a showing that “‘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.) (quoting Brignoni-Ponce, 422 U.S. at
884), cert. denied, 117 S. Ct. 265 (1996). The Supreme Court has explained that this
8 reasonable suspicion standard reflects a balancing of “the importance of the governmental
interest at stake, the minimal intrusion of a brief stop, and the absence of practical
alternatives for policing the border.” Brignoni-Ponce, 422 U.S. at 881; see also Lopez-
Martinez, 25 F.3d at 1483 (discussing Brignoni-Ponce).
In Brignoni-Ponce, the Court set forth a list of eight factors that border patrol
agents may consider in determining whether there is reasonable suspicion to stop a
vehicle near the border: (1) the characteristics of the area in which the vehicle is
encountered; (2) the proximity to the border; (3) the usual patterns of traffic; (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
the agents; (7) characteristics of the vehicle; and (8) the appearance that the vehicle is
heavily loaded. Brignoni-Ponce, 422 U. S. at 884-85; see also United States v.
Monsisvais, 907 F.2d 987, 990 (10th Cir. 1990) (discussing these Brignoni-Ponce
factors). This list is not exhaustive, and “[n]either Brignoni-Ponce nor its progeny
identify a minimum number of factors necessary to constitute reasonable suspicion or any
outcome-determinative criteria.” Lopez-Martinez, 25 F.3d at 1484.
Instead, the determination of reasonable suspicion must be made by examining
“the totality of the circumstances.” Cantu, 87 F.3d at 1121 (citing United States v.
Cortez, 449 U.S. 411, 417 (1981)). Border patrol agents are entitled to assess the facts in
the light of their experience, and, as a result, we have recognized that they “may perceive
9 meaning in actions that appear innocuous to the untrained observer.” Id. (citing Brown v.
Texas, 443 U.S. 47, 52 & n.2 (1979)). Additionally, 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 (10th Cir. 1994)
(citing Terry v. Ohio, 392 U.S. 1, 22 (1968)). Although “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 (quoting United States v. Sokolow, 490 U.S. 1, 7
(1989) (quoting I.N.S. v. Delgado, 466 U.S. 210, 217 (1984))).
The reasonable suspicion analysis must be considered on a case-by-case basis,
United States v. Martin, 15 F.3d 943, 950 (10th Cir. 1994), and cannot be reduced to “‘a
neat set of legal rules,’” Lopez-Martinez, 25 F.3d at 1484 (quoting Sokolow, 490 U.S. at
7). However, it is useful to consider some of our prior decisions in this area, beginning
with those cases in which we have concluded that traffic stops made by border patrol
agents comported with the Fourth Amendment.
In Lopez-Martinez, border patrol agents observed a van and a sedan exiting the
interstate near the Mexican border and less than ten miles south of a checkpoint. The
sedan left the interstate and proceeded on a state highway that was a known smuggling
route. The agent following the vehicles noticed that there were four Hispanic men in the
sedan. When the agent pulled in between the van and the sedan, the sedan dropped back
10 about 100 yards. Both vehicles were driving about thirty miles per hour in a fifty-five
miles per hour zone, and the agent saw a passenger in the van stare at the agent for twenty
to thirty seconds and then drop back out of sight. In affirming the district court’s decision
that the agent had the necessary reasonable suspicion that the vehicles were transporting
undocumented aliens, we identified the following factors: the characteristics of the area
(the highway in question passed through minimally populated desert and was a slower
and more circuitous route than the interstate and a large number of illegal aliens had been
apprehended there); the proximity of the area to the border; the usual patterns of traffic
on the particular road (the record indicated that the time of the stop was a period of
particularly low traffic); the officer’s experience; and the behavior of the driver and
passengers.
Similarly, in United States v. Barbee, 968 F.2d 1026 (10th Cir. 1992) we upheld
the district court’s finding of reasonable suspicion when the agents observed the
defendant’s car traveling north on a known smuggling route and further observed the
cars’ passengers crouching down out of sight after the agents followed the car and shined
their high beam lights on it. We reasoned that two agents with experience in the area had
testified about “the location of the road, the typical nature of the traffic at that time of
year and that time of day . . . , and their experience with alien and drug smugglers.”
Barbee, 968 F.2d at 1029. We also emphasized the passengers’ suspicious behavior.
Several of our other decisions have followed reasoning similar to Lopez-Martinez and
11 Barbee in concluding that border patrol agents had reasonable suspicion to effect a brief
investigative detention. See, e.g., United States v. Pollack, 895 F.2d 686 (10th Cir. 1990)
(finding reasonable suspicion when a pickup truck passed through a checkpoint at 3:00
a.m., the driver asked for directions to the nearest gas station, and when, forty-five
minutes later, sensors detected the same pickup traveling close to another vehicle on a
highway that circumvented the checkpoint); United States v. Merryman, 630 F.2d 780
(10th Cir. 1980) (finding reasonable suspicion when the defendant’s truck stopped before
coming to a checkpoint and then made a U-turn and drove away, and when an agent
following the truck then observed lumpy objects in the back); United States v. Leyba, 627
F.2d 1059 (10th Cir. 1980) (finding reasonable suspicion when officers observed
defendant’s car traveling north on a known smuggling route at 3:00 a.m., the car drifted
over the center line on several occasions, and agents following the vehicle suspected that
the passengers were attempting to avoid detection); United States v. Sperow, 551 F.2d
808 (10th Cir. 1977) (finding reasonable suspicion when agents observed a heavily-
loaded truck with a camper traveling on an east-west highway close to the border and then
turning north).
In contrast to these cases, other decisions illustrate the kinds of circumstances in
which we have found that border patrol agents lacked reasonable suspicion. For example,
in United States v. Guillen-Cazares, 989 F.2d 380 (10th Cir. 1993), agents observed two
cars driving close together on a state highway that intersected I-25 near a checkpoint at
12 about 10:25 p.m. The agents noticed that the first car appeared to contain quite a few
people and that the second car seemed to be riding a little low. As they approached the
cars, one agent noticed that he could no longer see the passenger in the second car. We
reversed the district court’s conclusion that these facts established reasonable suspicion to
stop the two cars. We noted that the facts in this case--a car turning south instead of north
and the fact that the lead vehicle contained more people than the second car--did not fit
the classic smuggling pattern described by the agents during their testimony at the
suppression hearing. We said that “the fact [that the] defendant was traveling at night on a
known smuggling road, with one passenger, in a vehicle which slanted to the rear and was
following a car with several passengers” and “the fact [that] the passenger slouched down
at some point after the car entered I-25 south, . . . do not reasonably warrant suspicion
[that] the defendant’s vehicle was smuggling aliens or narcotics.” Guillen-Cazares, 989
F.2d at 384.
United States v. Monsisvais, 907 F.2d 987 (10th Cir. 1990) provides another
illustration of facts failing to establish reasonable suspicion. Around 7:30 p.m., border
patrol agents observed a pickup truck with a camper shell that was “riding extremely
heavy” traveling north on a highway that bypassed an I-25 checkpoint. Monsisvais, 907
F.2d at 988. The truck had Arizona plates, and the agent said that as the truck approached
the on-ramp to I-25 north, the driver slowed down, corrected his turn, and then turned
onto I-25 south instead. The agent believed that the driver did this in response to seeing a
13 border patrol car. Upon considering this evidence, we reversed the district court’s
conclusion that the stop was supported by reasonable suspicion. We noted that the record
was barren as to the legitimate uses of the state highway. We also attached little
significance to the Arizona plate. We further reasoned that the driving maneuvers
observed by the agents were not significant. We noted that according to the agents’
testimony, they would have been suspicious whether the truck had turned north (the
direction that smugglers usually travel) or south (the direction that smugglers travel when
they think they may be under observation). We added that the agents had admitted that
the intersection was confusing and that out-of-state drivers might well slow down for
innocent reasons.
United States v. Miranda-Enriquez, 941 F.2d 1081 (10th Cir. 1991) provides a
final example of border patrol agents’ observations that we found insufficient to establish
reasonable suspicion. In that case, agents observed a car with out-of-state plates traveling
north at 9:00 p.m. along a state highway known for smuggling. They saw dust on the car
as it passed by and noticed several unidentified shapes in the back seat. As he flashed his
lights on the car when it passed though an intersection, the driver appeared “frozen” and
did not look left or right. Miranda-Enriquez, 907 F.2d at 1082. In finding a lack of
reasonable suspicion, we reasoned that the agent had acknowledged that it was not
unusual for cars on the highway in question to be covered with dust, that the agent
provided no specific information about the likelihood of encountering smugglers at the
14 time of day that the stop was made, and that little significance should be attached to the
driver’s failure to look left or right when the agent saw him because it was possible to see
oncoming cars before reaching the intersection.
In applying these decisions to the instant case, we first note that in explaining his
decision to stop Mr. Huereque-Mercado on the morning of June 9, 1996, Agent Muniz
identified four of the factors listed by the Supreme Court in Brignoni-Ponce as grounds
for reasonable suspicion: (1) the characteristics of the area in which he encountered Mr.
Huereque-Mercado’s truck (New Mexico Highway 11, a route preferred by smugglers,
according to the agent’s testimony); (2) the proximity of the area to the border (about
twenty-one miles north of it); (3) the usual patterns of traffic on the road in question (i.e.
the fact that he observed Mr. Huereque-Mercado at 7:30 a.m., a preferred time for
smugglers, according to the agent); and (4) the characteristics of the vehicle (a pickup
with a large bumper, a missing license plate light, and air freshener hanging from the
rearview mirror). Although several of these factors may have appeared entirely innocent
to the untrained observer, Agent Muniz was entitled to rely on his experience as a border
patrol agent in concluding that the totality of the circumstances warranted further
investigation. See Lopez-Martinez, 25 F.3d at 1484 (noting that a series of innocent acts
may justify further investigation and that the border patrol agent may consider the totality
of the circumstances in making the determination of whether he has the reasonable
suspicion necessary to make a stop). Moreover, the factors identified by Agent Muniz in
15 justifying the stop are similar to those relied on by the border patrol agents in several of
our prior decisions that have upheld the determination of reasonable suspicion. See
Lopez-Martinez, 25 F.3d at 1485-86 (considering, inter alia, the proximity to the border,
the time of day, the agent’s testimony that the road in question was preferred by
smugglers, and the fact that the defendant’s van was able to conceal several passengers
from passersby); Barbee, 968 F.2d at 1029 (considering, inter alia, the location of the
road, the typical traffic, and the agents’ experience with smugglers); Pollack, 895 F.2d at
690-91 (concluding that the time of day, the fact that the defendant was driving on a
known smuggling route, and the fact that he was driving a large vehicle capable of
hauling many people all supported a finding of reasonable suspicion); Lebya, 627 F.2d at
1063-64 (concluding that the time of day, the nature of the road, and the appearance of
the vehicle supported finding of reasonable suspicion); Sperow, 551 F.2d at 880-881
(concluding that the fact that the defendant was driving a heavily-loaded truck a mile and
a half from the border supported a finding of reasonable suspicion).
On the other hand, we acknowledge that some of the reasons offered by Agent
Muniz as grounds for stopping Mr. Huereque-Mercado are of questionable significance in
undertaking the reasonable suspicion analysis. In particular, several of our decisions have
criticized the border patrol’s reliance on a vehicle’s out-of-state license plates as grounds
for making a stop. See, e.g., United States v. Martinez-Cigarroa, 44 F.3d 908, 911 (10th
Cir. 1995) (“[W]hile out-of-state license plates may be a relevant consideration in some
16 circumstances, this factor in and of itself is not significantly probative of illegal activity
and adds little to the reasonable suspicion equation.”); Monsisvais, 907 F.2d at 991
(“Although Arizona cars must certainly be less common on this stretch of road than those
bearing New Mexico plates, we cannot find any basis in the record from which to
conclude that Arizona-plated vehicles are any more likely to be transporting aliens . . .
than are vehicles bearing the license plates of New Mexico, or, for that matter, Texas or
Colorado.”); Lebya, 627 F.2d at 1064 (“That the vehicle bore out-of-state plates, as do 50
percent of all vehicles in which aliens are apprehended, is of little significance here
simply because Arizona is relatively near.”).
Additionally, we agree with Mr. Huereque-Mercado that there are flaws in Agent
Muniz’s reasoning regarding the significance of the time of day when the stop was made.
Although Agent Muniz testified that the early morning was a preferred time for smugglers
because that was when border patrol agents changed shifts, he also stated that the shift
change actually occurred around 6:00 a.m., an hour and a half before the stop at issue
here. Moreover, as we have noted the testimony offered by Mr. Huereque-Mercado about
the pattern of traffic on Highway 11 at the time when the stop actually occurred indicated
that several agents were on patrol then, thus undermining Agent Muniz’s suggestion that
smugglers could more easily avoid encountering law enforcement agents by driving at
that hour. Also, the testimony presented by Mr. Huereque-Mercado regarding special
bumpers on pickup trucks indicated that such bumpers were more common and had more
17 legitimate uses than one might have concluded from Agent Muniz’s testimony alone.
Finally, we note that unlike some of the cases in which we have found reasonable
suspicion, Agent Muniz did not provide specific information about the number of illegal
aliens or drug smugglers arrested in the area. See Lopez-Martinez, 25 F.3d at 1485 n.3
(considering agents statistical testimony about the number of undocumented aliens
arrested in the area).
Nevertheless, because we must consider the totality of the circumstances and view
the record in the light most favorable to the government, we conclude that the district
court properly held that the stop of Mr. Huereque-Mercado’s truck was supported by
reasonable suspicion. Even though Mr. Huereque-Mercado established that some of the
factors on which Agent Muniz relied in justifying the stop were not as unambiguously
suspicious as Agent Muniz’s testimony suggested, the district court was still entitled to
rely on that testimony to conclude that these factors provided some basis for reasonably
suspecting Mr. Huereque-Mercado of transporting contraband. Moreover, in comparing
the facts of the instant case to those decisions in which we have found an absence of
reasonable suspicion, we note that those other decisions did not involve the combination
of suspicious vehicle characteristics and other Brignoni-Ponce factors that is present here.
See Guillen-Cazares, 989 F.2d at 382 (vehicle traveling at night on a known smuggling
route and observed to be slanting toward the rear but no indication that it had been
modified to carry contraband); Monsisvais, 907 F.2d at 988 (vehicle “riding extremely
18 heavy” but no indication that agents identified any other suspicious characteristics);
Miranda-Enriquez, 941 F.2d at 1082 (concluding that dust on a car was not grounds for
suspicion and noting no other suspicious characteristics). After observing a pickup (with
a large bumper, a missing license plate light, and air-freshener hanging from the rearview
mirror) driving twenty-one miles north of the Mexican border on a highway thought by
agents to be preferred by smugglers at a time thought by agents to be preferred by
smugglers, and after receiving the information that the truck had not passed through a
regular border checkpoint, Agent Muniz had a “‘particularized and objective basis for
suspecting [Mr. Huereque-Mercado] of criminal activity.’” Lopez-Martinez, 25 F.3d at
1487 (quoting Cortez, 449 U.S. at 417-18). Allowing border patrol agents to make a
traffic stop when presented with this particular combination of factors does not vest the
agents with unbridled discretion in violation of the Fourth Amendment.
III. CONCLUSION
For the reasons set forth above, the decision of the district court is affirmed.
The mandate shall issue forthwith.
Entered for the Court,
Robert H. Henry Circuit Judge