United States v. Jose Maria Pena-Cantu

639 F.2d 1228, 1981 U.S. App. LEXIS 19211

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 16, 1981
• Docket: 80-1283
• Status: Published

Opinions

THORNBERRY, Circuit Judge:

On December 5, 1979, agents of the Immigration and Naturalization Services (I.N.S.) spotted two cars proceeding northeast together on U.S. Highway 59 some twenty miles southwest of Houston, Texas. Because all of the numerous occupants of both vehicles were adult males of Hispanic appearance travelling during working hours without the accouterments of tourists, the agents suspected that they were illegal aliens. Four agents in two unmarked vehicles followed appellant and his passengers until they arrived at a Houston residence. The agents parked directly behind appellant’s vehicle, identified themselves as I.N.S. agents, and questioned the occupants concerning their citizenship. In response to the agents’ inquiries, the passengers admitted that they had entered the country illegally.

Appellant moved to suppress his passengers’ statements on the ground that the agents acquired the evidence pursuant to an illegal seizure. The district court denied the motion to suppress after a full evidentiary hearing and then, pursuant to stipulated facts, found appellant guilty of transporting illegal aliens in violation of 8 U.S.C. § 1324(aX2). For the reasons stated below, we reverse the district court’s denial of appellant’s motion to suppress.

A. Seizure

A seizure of a person, within the meaning of the Fourth Amendment, occurs when an officer of the law takes actions that would induce a reasonable person to believe that he would not be free to leave. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); United States v. Pulvano, 629 F.2d 1151 (5th Cir. 1980); United States v. Robinson, 625 F.2d 1211 (5th Cir. 1980); United States v. Elmore, 595 F.2d 1036 (5th Cir. 1979). See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Applying this objective standard to the facts of this case, we conclude that a reasonable driver would not feel free to ignore a situation in which several agents pull up directly behind his stationary car, position themselves on both the driver and passenger sides of the vehicle, and proceed to question him while he and his passengers remain within the confines of the car. Since the agents clearly manifested an intention to cabin appellant within his car until he identified himself, an investigatory seizure occurred before the agents discovered the illegal status of his compatriots. See United States v. Bowles, 625 F.2d 526 (5th Cir. 1980); United States v. Robinson, 535 F.2d 881 (5th Cir. 1976.)

B. Reasonable Suspicion

The Fourth Amendment permits roving border patrols to “seize" travellers for the limited purpose of investigating their citizenship if the agent is “aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.” United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607 (1975).

Several recent decisions of this Court have established that a key parameter in the suspicion calculus is reason to believe that the vehicle in question has recently crossed the border. See, e. g., United States v. Pacheco, 617 F.2d 84 (5th Cir. 1980); United States v. Lamas, 608 F.2d 547 (5th Cir. 1979); United States v. Ballard, 600 F.2d 1115 (5th Cir. 1979); United States v. Escamilla, 560 F.2d 1229 (5th Cir. 1977). Since the agents in this instance did not testify that they had reason to believe that the vehicles had crossed the border, and since such belief certainly cannot be presumed where the cars were first spotted over 250 miles from the nearest border crossing, we are required to examine charily the remaining facts marshalled by the government to support the agents’ suspicions. See United States v. Lopez, 564 F.2d 710 (5th Cir. 1977).

Essentially, the following facts sparked the agents’ interest in appellant’s vehicle: (1) the travellers were proceeding in a northerly direction away from Mexico toward Houston; (2) the occupants of both cars were adult males of Hispanic appearance; (3) the passengers in the back seat were sitting low as if to avoid detection; (4) the occupants did not look like tourists; (5) the cars were of the type often used by smugglers.¹ These facts are, however, unquestionably insufficient to justify an investigatory seizure. See United States v. Lamas, supra; United States v. Escamilla, supra. This conclusion is fortified by one of the agent’s own testimony. Agent James K. Storey testified that he and his colleagues decided to follow these vehicles to their destination rather than stop them on the spot because they did not believe that they had sufficient information to warrant a stop. Trial Transcript at 55, 70. Since there is nothing in the record to indicate that the agents acquired any more articulable basis for their suspicion by the time they finally approached appellant’s vehicle, we can only agree with Agent Storey and conclude that the suspicion in this instance fell below that threshold necessary to warrant an investigatory seizure.

The judgment of the district court is accordingly REVERSED, and the case is REMANDED for entry of an order granting appellant’s motion to suppress and for further proceedings consistent with this opinion.

1 . Although the government articulates other facts here on appeal, we decline to consider those for which there is no support in the record. For example, the government relies on the high rate of speed of the vehicles despite Agent Storey’s testimony that he found nothing unusual in the rate of speed or driving patterns. Trial Transcript at 59. Furthermore, the government asserts as an important factor underpinning the agents’ suspicion that “the cars were followed to an area of Houston which is known to contain ‘drop’ houses for illegal .aliens.” Although Agent Murphy testified that “our primary purpose was to observe if these vehicles were going to one of those [drop house] locations,” Trial Transcript at 29, there is absolutely no testimony suggesting that appellant actually arrived at such a residence.