United States v. Jose Angel Ortega-Serrano

788 F.2d 299, 1986 U.S. App. LEXIS 25055
CourtCourt of Appeals for the Fifth Circuit
DecidedApril 28, 1986
Docket85-1058
StatusPublished
Cited by14 cases

This text of 788 F.2d 299 (United States v. Jose Angel Ortega-Serrano) 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. Jose Angel Ortega-Serrano, 788 F.2d 299, 1986 U.S. App. LEXIS 25055 (5th Cir. 1986).

Opinions

GEE, Circuit Judge:

Jose Angel Ortega de Serrano (“Serrano”) was charged with transporting illegal aliens in violation of 8 U.S.C. § 1324(a)(2) and pled guilty to that charge. The issue that Serrano presents on this appeal is whether the district court erred in holding that an Immigration and Naturalization Service (“INS”) officer had reasonable suspicion to stop Serrano’s car. We reverse.

I.

On September 9, 1984, agents with the antismuggling division of the INS in Dallas were positioned along 1-35 south of Fort Worth and Dallas observing traffic. Agent Caplinger, an INS criminal investigation supervisor for three years, was parked on an 1-35 overpass. During the course of his surveillance, Caplinger saw a northbound, early-model, bright red Chevrolet Camaro with at least four and possibly five Hispanic male occupants. Caplinger radioed to other INS agents located further north along 1-35, advising them that a red Cama-ro with four or five occupants was going their way and instructing them to take a look at it. Agent Hankin, an INS criminal investigator for six years and a former border patrol agent for twelve years, was standing outside his unmarked vehicle alongside 1-35 approximately one mile north of Caplinger when the Camaro drove by a minute or so later. Using binoculars, Hankin observed the Camaro travelling on the inside lane at the same speed as a group of other vehicles. Hankins’ view was obstructed, however, by the cars between himself and the Camaro. After the Camaro passed, Hankin got into his vehicle for the purpose of pursuing the Camaro to get a better look. Several minutes later, Hankin caught up with the group of vehicles, but the Camaro was no longer with them. Hankin then proceeded north for ten to twelve miles at about 100 miles per hour for approximately eight of those miles before spotting the Camaro. When he reached the Camaro, he estimated that it was going about 70 miles per hour. Pulling up beside the Camaro, Hankin observed that the car was “pretty trashed out.” Record, Vol. II at 26. It had a very uneven or home-made paint job, with everything but the tires and windows painted red. Hankin further observed that there were four young Hispanic males in the car. The driver was not wearing a shirt. The occupants in the back seat would not look at Hankin but appeared nervous and “like they had slept without combing their hair. They were kind of dirty looking.” Id. After Hankin turned on his vehicle’s siren and flashing red lights, the Camaro’s driver slowed down, pulled over to the side of the interstate, and stopped. After identifying himself, Hankin asked to check the nationality of each occupant. Serrano, the driver, admitted that he was in the United States illegally.

[301]*301Based on the September 9 incident, Serrano was indicted for knowingly transporting illegal aliens in violation of 8 U.S.C. § 1324(a)(2). Serrano moved to suppress all evidence obtained following his arrest, including the statements of his passengers and his own statements and admissions, claiming that the INS lacked reasonable suspicion to stop his car. After a hearing, the district court denied that motion, finding that there was reasonable suspicion. Serrano later pled guilty and was sentenced to five years probation. The issue that Serrano presents on this appeal is whether the district court erred in finding that the INS had reasonable suspicion to stop his car.

II.

The starting point for our analysis of whether the INS had reasonable suspicion to stop Serrano is United States v. Brigno-ni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). In that case, the Supreme Court held that the fourth amendment prohibits INS roving patrols from stopping vehicles in areas near but not at the Mexican border or its functional equivalent and from questioning a vehicle’s occupants as to citizenship absent a reasonable suspicion that the vehicle contains illegal aliens. Id. at 882, 95 S.Ct. at 2580. Such a reasonable suspicion must be supported by “specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion” that the vehicle contains illegal aliens. Id. at 884, 95 S.Ct. at 2582. Factors that may properly be considered include (1) characteristics of the area where the vehicle is encountered, such as proximity to the border, usual traffic patterns, and previous experience with alien traffic; (2) information about recent illegal border crossings; (3) erratic or evasive driving; (4) characteristics of the vehicle itself — whether it is among those types frequently used to transport aliens, whether it appears heavily loaded or has an unusually large number of passengers or its passengers are observed trying to hide; and (5), although not sufficient standing alone, the apparent Mexican ancestry of the occupants. Id. at 884-85, 887. The officer making the decision whether to stop is entitled to assess these factors in “light of his experience detecting illegal entry and smuggling.” Id. at 885, 95 S.Ct. at 2582 (citation omitted). Whether the INS had a reasonable suspicion requires a case-by-case analysis turning on the totality of the particular circumstances. Id. at 884 n. 10, 95 S.Ct. at 2582 n. 10.

In applying Brignoni-Ponee to today’s case, Hankin’s testimony provides the only relevant evidence in determining whether there was a reasonable suspicion to stop Serrano. Hankin made the decision to stop Serrano. Caplinger’s contribution was limited to the radio communication that a red Camaro with four or five occupants was proceeding north. Caplinger shared only an instruction presumably based on experience, not his reasoning.1 And, with respect to Hankin’s testimony, we are further obliged to examine it charily. This is because, as Hankin testified, there was no reason to believe that Serrano’s vehicle — spotted some 300 to 400 miles north of the border — had recently come from the border. United States v. Pena-Cantu, 639 F.2d 1228, 1229 (5th Cir.1981).

Mindful of the restrictions on the evidence and the required level of scrutiny, the government provided only limited evidence to support a reasonable suspicion to stop Serrano’s car. There was no testimony about the significance of the area for smuggling or Hankin’s experience or suc[302]*302cess rate with stopping vehicles. All that we know is that Hankin had been with the Dallas office for four years and had fourteen additional years of experience with the INS. There was no testimony concerning information about illegal border crossings. Hankin did testify that Serrano tried to evade him, first by keeping a vehicle between the Camaro and Hankin when Han-kin first observed the Camaro and then by rapidly accelerating once past Hankin. We attach little significance to this because Hankin’s vehicle was not marked and he was not in uniform. With respect to the Camaro itself, there is no evidence that this type of car was frequently encountered in smuggling or that the car had somehow been modified for smuggling or that it had an unusual number, of passengers. The sole engaging characteristics of the car were that it was an early model and had a “[v]ery uneven paint job all over it.” Record, Vol. II at 27.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Sonia Luz Lopez-Valdez
178 F.3d 282 (Fifth Circuit, 1999)
Hopkins v. State
661 So. 2d 774 (Court of Criminal Appeals of Alabama, 1994)
Judah T. Moser v. State
Court of Appeals of Texas, 1993
United States v. Mario De Leon-Reyna
930 F.2d 396 (Fifth Circuit, 1991)
Darden v. State
571 So. 2d 1272 (Court of Criminal Appeals of Alabama, 1990)
United States v. Francisco Hernandez-Alvarado
891 F.2d 1414 (Ninth Circuit, 1989)
United States v. Fonseca-Ramos
743 F. Supp. 487 (N.D. Texas, 1989)
United States v. Sharon Lanelle Martinez
808 F.2d 1050 (Fifth Circuit, 1987)
United States v. Jose Angel Ortega-Serrano
788 F.2d 299 (Fifth Circuit, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
788 F.2d 299, 1986 U.S. App. LEXIS 25055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jose-angel-ortega-serrano-ca5-1986.