REVISED June 21, 1999
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ________________________
No. 97-50949 ________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SONIA LUZ LOPEZ-VALDEZ,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the Western District of Texas _________________________________________________________________ June 1, 1999 Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.
BENAVIDES, Circuit Judge:
Sonia Luz Lopez-Valdez (“Lopez”) appeals from her criminal
conviction for willfully transporting illegal aliens. Lopez
contends that the district court erred in denying her motion to
suppress certain evidence gathered after law enforcement officers
stopped her car near the U.S.-Mexican border. This Court has
jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons set
forth below, we REVERSE the district court’s July 22, 1997 denial
of Lopez’s motion to suppress and remand for further proceedings
consistent herewith.
I. BACKGROUND
At about 8:30 a.m. on August 14, 1996, Appellant was driving
east on Farm to Market Road (FM) 2644. FM 2644, which connects FM 1021 to U.S. Highway 277, originates in El Indio, Texas, a
small town near the U.S.-Mexican border. FM 2644 is the main
road from El Indio to the larger towns of Carrizo Springs and
Crystal City.
Heading east, away from the border, Lopez’s Buick passed the
west-bound marked patrol unit of Texas Department of Public
Safety (“DPS”) trooper Charles Flori. Flori’s passenger, United
States Border Patrol Agent Matthew Mizell,1 noticed numerous
passengers in the Buick. Based on the number of people in the
car and the fact that FM 2644 circumnavigates the Highway 277
checkpoint, Agent Mizell suspected that the vehicle could be
engaged in alien smuggling. Agent Mizell and Trooper Flori
discussed these suspicions. Trooper Flori decided to turn his
patrol car around so that he and Agent Mizell could get a better
look.
Before turning his patrol car around, Trooper Flori saw in
his rearview mirror the Buick’s brake lights come on. Flori
observed that the right taillight had a hole in its lens cover
and that the taillight emitted both red and white light.2 Agent
Mizell also saw that the Buick had a damaged taillight. Later
inspection revealed that an inch-long, rectangular-shaped piece
of the taillight lens was missing. The bulb was behind the
intact part of the red lens.
1 Agent Mizell had been assigned to ride with Flori as part of a joint investigatory effort by the U.S. Border Patrol and the Texas Department of Public Safety to detect narcotics trafficking and alien smuggling. 2 Essentially, all the witnesses (both from the Government and the Defense) at trial conceded that the brake light emitted both a white and a red light. Trooper Flori stopped the Buick because he believed that a
broken taillight constituted a traffic infraction. Trooper Flori
turned on his patrol car’s flashing lights; the Buick stopped.
As Flori talked with Lopez, Agent Mizell asked the passengers
about their citizenship status. Most of the passengers did not
have documents with them. They were arrested and read their
Miranda rights. Lopez was also arrested and advised of her
rights.
Lopez was transported to the border patrol station in
Carrizo Springs, Texas, where she was processed and placed in a
cell. Border Patrol Agent Eduardo Martinez removed Lopez from
the cell to question her. Once in the interrogation room, he
informed her, in English and Spanish, of her rights concerning
remaining silent and receiving assistance of counsel. Lopez
signed forms indicating that she understood her rights, and she
answered the officer’s questions. After the interrogation was
finished, Lopez signed a typed statement of her answers. In the
statement, Lopez admitted that she knew the people in her car
were illegal aliens and that she was paid to drive them to
Carrizo Springs.
Lopez was indicted on August 21, 1996, in the United States
District Court for the Western District of Texas for two counts
of willfully transporting illegal aliens. Before trial, she
moved to suppress certain evidence, including her post-arrest
statements and witness testimony, on the basis that it was the
-3- fruit of an illegal detention.3 Lopez waived her right to a jury
trial. The district court carried the motion to suppress with
the bench trial.
At the end of Lopez’s trial, the district court heard
arguments on the motion to suppress. Lopez, relying on State v.
Vicknair, 751 SW.2d 180 (Tex.Crim.App. 1986, no pet.), asserted
that it is well established law in Texas that a broken lens
causing a taillight to emit both red and white light does not
constitute an offense and as such could not serve as the basis
for a traffic stop. Additionally, she contended that the facts
known to the officers did not give rise to a reasonable suspicion
that she was involved in illegal activity. The Government, on
the other hand, argued that the totality of the circumstances
justified the initial stop and that Flori’s conduct amounted to a
good-faith view of Texas traffic laws concerning broken
taillights. The Government contended that this good-faith view
would except from exclusion the evidence gathered subsequent to
the stop.
The district court rightly decided that the suppression
motion turned on the lawfulness of the vehicular stop. The court
found that the taillight on Lopez’s Buick emitted both white and
red light. The court also found that officers Flori and Mizell
3 At trial, the Government introduced Lopez’s post-arrest statements as well as testimony by Jose Louis Perez Cordero and Roberto Manriquez, who had been passengers in Lopez’s car. Both men testified that they had entered the United States illegally. They had arranged the entry with a woman, not Lopez, and had crossed the Rio Grande river guided by a man. After crossing, they waited until Lopez picked them up in her Buick.
-4- did not manufacture the circumstances under which Flori
effectuated the stop. The court noted that, to the extent that
Lopez’s vehicle had been stopped for a traffic violation,
Vicknair would require the motion to suppress to be granted
because, in Texas, a damaged taillight which emits both red and
white light could not justify a traffic stop. The court did not
attempt to carve out a good-faith exception to the exclusionary
rule. Instead the district court relied on the reasonable
suspicion test that governs roving border patrol stops, and
concluded that, given all the facts and circumstances in
possession of both the federal agent and state trooper, there
were sufficient articulable facts to raise a reasonable suspicion
justifying the initial stop.
The district court denied the motion to suppress and found
Lopez guilty as charged. Lopez received five years’ probation.
II. DISCUSSION
On appeal, Lopez argues that law enforcement officers lacked
the reasonable suspicion necessary to justify an immigration stop
of her vehicle; that a broken taillight did not provide probable
cause for the police to effect a traffic stop; that a Texas DPS
trooper’s erroneous belief that a broken taillight constituted a
traffic infraction did not excuse the vehicular search under the
good-faith exception to the probable cause requirement; and that,
in accordance with the Fourth Amendment prohibition against
illegal searches and seizures, the illegal stop and detention of
Lopez requires the suppression of all evidence acquired
-5- subsequent to the stop. The Government argues that the district
court improperly concluded that the good-faith exception to the
exclusionary rule was inapplicable and that either reasonable
suspicion or the good-faith exception justified the vehicular
stop.
A.
In reviewing the denial of a motion to suppress, a district
court’s purely factual findings are reviewed for clear error.
See United States v. Nichols, 142 F.3d 857, 864-65 (5th Cir.
1998). Its conclusion that the facts provided the probable cause
or reasonable suspicion necessary to justify a detention is
reviewed de novo. See Ornelas v. United States, 517 U.S. 690,
699 (1996).
B.
A vehicle may not be stopped simply because it is traveling
on a road near the U.S.-Mexican border. See Brown v. Texas, 443
U.S. 47, 49-52 (1979) (noting that presence in a high-crime area
does not provide reasonble suspicion); United States v. Newell,
506 F.2d 401, 405 (5th Cir. 1975) (explaining that presence in a
border area does not place a citizen “within a
deconstitutionalized zone”). A border patrol agent may briefly
detain a vehicle only if the agent is “aware of specific
articulable facts, together with rational inferences from those
facts, that reasonably warrant suspicion” that the vehicle is
involved in illegal activities. United States v. Brignoni-Ponce,
422 U.S. 873, 884 (1975); see also United States v. Inocencio, 40
-6- F.3d 716, 722 (5th Cir. 1994). In assessing the objective
reasonableness of a stop, the reviewing court must consider the
“whole picture.” United States v. Cortez, 449 U.S. 411, 417-18
(1981). Several factors comprise that picture: (1) the area’s
proximity to the border, including evidence that the vehicle
recently crossed the border; (2) the previous experience of the
arresting agents with criminal activity; (3) known
characteristics of the area; (4) the usual traffic patterns of
that road; (5) information about recent illegal trafficking in
aliens or narcotics in the area; (6) the behavior of the
vehicle’s driver; (7) the appearance of the vehicle; and (8) the
number, appearance, and behavior of any passengers. See
Brignoni-Ponce, 422 U.S. at 884. In applying the Brignoni-Ponce
standard, this Court has recognized that the Supreme Court
underpinned the standard with a balancing test; the public
interest in addressing the continuing problems of alien and drug
smuggling must be weighed against the private interest of an
individual to be let alone in exercising his or her liberty. See
Nichols, 142 F.3d at 861-62.
Although no single Brignoni-Ponce factor is controlling,
see Inocencio, 40 F.3d at 722, we have considered physical
proximity to the border to be a “vital element” in analyzing the
totality of the circumstances. Nichols, 142 F.3d at 867
(citation omitted).4 The Government relies on United States v.
4 It is important to note that--although the Nichols Court did observe that Nichols’ proximity to the border was an essential fact to consider, see 142 F.3d at 886-68--its conclusion that the stop was justified rested not on proximity
-7- Cardona, 955 F.2d 976 (5th Cir. 1992) (finding that agents had a
reasonable suspicion to conclude that the defendant’s vehicle had
originated at the border in light of the number of towns along
the road, the number of intersecting roads, and the number of
miles from the border), and argues that when, such as here, the
stop occurs relatively close to the border (20 miles) and the
road (FM 2644) comes directly from El Indio on the border--El
Indio is the only town south of where Lopez’s vehicle was
stopped--it is reasonable to conclude that Lopez originated her
journey at the border.
Even were we to agree with the Government and assume that
Lopez originated her journey at the border, that factor “alone
[is] not dispositive in the reasonable suspicion analysis.”
United States v. Pacheco, 617 F.2d 84, 86 (5th Cir. 1980); see
also United States v. Diaz, 977 F.2d 163, 165 (5th Cir. 1992)
(concluding that presence on the border is insufficient for a
finding of reasonableness). Other Brignoni-Ponce factors must be
considered. The Government identifies two additional facts that
it contends justify the stop: the presence of numerous passengers
in Lopez’s car and the fact that the road on which Lopez was
traveling could be used to circumvent an immigration checkpoint.
A review of Fifth Circuit authority, however, reveals that
these facts are insufficient to justify the stop. First, in
cases where the numerosity of passengers contributed to a finding
alone, but on the totality of the circumstances reflected in the record. Id. at 859, 873.
-8- of reasonable suspicion, we have consistently found the presence
of additional factors indicative of wrongdoing. See, e.g.,
Brignoni-Ponce, 422 U.S. at 885 (finding, as indicative of
wrongdoing, passengers’ attempts to hide); United States v.
Garcia, 732 F.2d 1221, 1223 (5th Cir. 1984) (explaining that
passengers’ “unwashed” and “unkempt” appearance contributed
toward a determination of reasonable suspicion); United States v.
Salazar-Martinez, 710 F.2d 1087, 1089 (5th Cir. 1983) (noting the
significance of passengers kneeling on floor with their heads
down). Here, the record contains no evidence that the passengers
engaged in evasive or unusual behavior. Additionally, the record
contains no evidence that the passengers appeared unkempt or
unwashed. Therefore, we find that the mere presence of several
people in Lopez’s Buick does not alone raise a reasonable
suspicion; Fifth Circuit precedent requires that something more
be shown.
Second, Lopez’s presence on FM 2644 does not give rise to a
reasonable inference of wrongdoing. Although there was testimony
that FM 2644 could be used to avoid an immigration checkpoint,
the Government did not introduce at trial any evidence that it
was unusual to see a car on FM 2644 at 8:30 in the morning. The
Appellant correctly notes, to the contrary, that the record
showed that a resident of El Indio would take FM 2644 if she were
heading to the larger towns of Carrizo Springs or Crystal City.
Appellant additionally points out that in poorer areas, such as
many communities along the U.S.-Mexican border, people are more
-9- likely to share rides to work or to the larger towns and cities.
In sum, the facts seem to show only that Lopez was driving
an older-model mid-size sedan with anywhere from six to eight
visible passengers about 20 miles from the border. We note that
the Government failed to introduce at trial evidence of other
Brignoni-Ponce factors. In particular, the record before us
contains no information about the border patrol agents’ relevant
experience, see, e.g., United States v. Ortega-Serrano, 788 F.2d
299, 302 (5th Cir. 1986) (reversing the denial of a motion to
suppress and observing that the record contained no evidence of
agent’s relevant experience); no evidence of the usual traffic
patterns on FM 2644; no evidence that there was anything unusual
about the appearance or behavior of either Lopez or her
passengers, see, e.g., Nichols, 142 F.3d at 866 (finding
significant the fact that driver sat at the intersection for 30
seconds, then drove erratically as he watched a patrol vehicle in
his rear view mirror); and no evidence that the Buick’s
appearance suggested smuggling, see, e.g., United States v.
Chavez-Villarreal, 3 F.3d 124, 126 (5th Cir. 1993) (noting an
agent’s testimony that alien smugglers favored Suburbans);
Ortega-Serrano, 788 F.2d at 302 (observing that no evidence was
presented that a Camaro was the type of car frequently
encountered in smuggling or that the car had somehow been
modified for smuggling).
Because proximity to the border cannot alone justify a stop,
a finding of reasonable suspicion in this case would have to be
-10- based, in large part, upon the number of passengers in the car.
As already discussed, however, Fifth Circuit precedent indicates
that the mere presence of numerous people in a car does not raise
a reasonable suspicion. Nor are we willing in the instant case
to assign some magic number at which point reasonable suspicion
would arise. Thus, absent a showing by the Government that other
Brignoni-Ponce factors weigh in its favor, we hold that a mid-
size sedan traveling on a road near the U.S.-Mexican border with
as many as eight visible passengers does not give rise to
reasonable suspicion of unlawful activity.
C.
“As a general matter, the decision to stop an automobile is
reasonable where the police have probable cause to believe that a
traffic violation has occurred.” Whren v. United States, 517
U.S. 806, 810 (1996). This rule provides law enforcement
officers broad leeway to conduct searches and seizures regardless
of whether their subjective intent corresponds to the legal
justification for their actions. See United States v. Miller,
146 F.3d 274, 279 (5th Cir. 1998). We have explained that the
“flip-side of that leeway” is that “the legal justification must
be objectively grounded.” Id.; see also Goodwin v. Johnson, 132
F.3d 162, 173 (5th Cir. 1998) (“So long as a traffic law
infraction that would have objectively justified the stop had
taken place, the fact that the police officer may have made the
stop for a reason other than the occurrence of the traffic
infraction is irrelevant for purposes of the Fourth Amendment and
-11- comparable Texas law.”). In United States v. Miller, 146 F.3d
274 (5th Cir. 1998), we held that where the supposed traffic
infraction that formed the basis for a vehicular stop in fact was
not a violation of state law, there was no objective basis for
probable cause justifying the stop. See id. at 279 (concluding
that a driver operating a vehicle by flashing the left turn
signal without turning or changing lanes did not violate Texas
traffic law and thus that no probable cause existed to justify
the traffic stop).
In this case, the Government argues that Trooper Flori
stopped Appellant’s Buick based upon his good-faith belief that
the broken taillight constituted a violation of § 547.303 of the
Texas Transportation Code. Trooper Flori’s belief, however, was
incorrect. In Texas, state police officers do not have authority
to stop vehicles with cracked taillight lenses that “permit[]
some white light to be emitted with red light.” Vicknair v.
State, 751 S.W.2d at 187.5
Generally, the fruits of illegal searches and seizures are
inadmissible under the exclusionary rule. See United States v.
5 The statute at issue in Vicknair was former Texas Revised Civil Statute art. 6701d, § 111. That statute provided in pertinent part that "every motor vehicle... shall be equipped with at least two (2) taillamps mounted on the rear, which when lighted as required in Section 109 [requiring lights on from half an hour after sunset to half an hour before sunrise], shall emit a red light plainly visible from a distance of one thousand (1,000) feet to the rear [.]" Tex. Rev.Civ.Stat. art. 6701d, § 111. At the time that Lopez was stopped, 6701d, § 111 had been recodified as Texas Transportation Code § 547.322(d). The Government on appeal argued that Trooper Flori stopped Lopez's vehicle based on his good-faith belief that the broken taillight constituted a violation of § 547.303, not § 547.322(d). Whether Flori believed that Lopez was in violation of § 547.322(d) or § 547.303 is of no consequence. The requirement embodied in § 547.303 existed at the time of Vicknair. The former art. 6701d, § 115(b) simply distinguished rear lamp reflectors from the reflectors on other lamps that may be amber or white.
-12- Ramirez-Lujan, 976 F.2d 930, 932 (5th Cir. 1992). But the good-
faith exception to the exclusionary rule allows the admission of
the fruits of some illegal stops. See id. Under this doctrine,
we have held that "evidence is not to be suppressed . . . where
it is discovered by officers in the course of actions that are
taken in good-faith and in the reasonable, though mistaken,
belief that they are authorized." United States v. De Leon-
Reyna, 930 F.2d 396, 400 (5th Cir. 1991) (en banc).
Trooper Flori stopped Lopez in 1996. Ten years after
Vicknair, no well-trained Texas police officer could reasonably
believe that white light appearing with red light through a
cracked red taillight lens constituted a violation of traffic
law.6
Lopez rightly points out that this Court should be leery of
extending the good-faith exception to this appeal. Under the
general rule established in Whren, a traffic infraction can
justify a stop even where the police officer made the stop for a
reason other than the occurrence of the traffic infraction. See
Goodwin v. Johnson, 132 F.3d 162, 173 (5th Cir. 1998). But if
officers are allowed to stop vehicles based upon their subjective
6 In a recent case, United States v. Nichols, 142 F.3d 857 (5th Cir. 1998), we noted that the “application of the good-faith exception to reasonable suspicion determinations has always involved circumstances extrinsic to the government agent's personal observations at the time of the stop." See id. at 860 n.1 (citations omitted). Here, Flori's actions were not based upon any circumstances extrinsic to his own personal observations. Flori stopped the Buick because he thought that the vehicle's broken taillight violated Texas law. We need not and do not make a determination in the instant case based upon any extrinsic circumstance limitation. Rather we ground our analysis in the language of our en banc De Leon-Reyna decision which recognizes that an officer’s course of action be taken not only in good faith but be objectively reasonable as well. See De Leon-Reyna, 930 F.2d at 400.
-13- belief that traffic laws have been violated even where no such
violation has, in fact, occurred, the potential for abuse of
traffic infractions as pretext for effecting stops seems
boundless and the costs to privacy rights excessive.
Accordingly, we hold that Flori’s actions do not pass muster
under the good-faith exception to the exclusionary rule.
III. CONCLUSION
For the above reasons, we conclude that the district court
erred in denying Appellant’s motion to suppress her custodial
statements as well as the statements of the two witnesses who
were passengers in her car. We therefore reverse and remand for
further proceedings consistent herewith.
REVERSE and REMAND.
-14- EMILIO M. GARZA, Circuit Judge, dissenting:
I agree with the majority opinion that the success of Lopez’s motion to suppress evidence
depends on whether the officers had reasonable suspicion to stop Lopez’s vehicle. See Reid v.
Georgia, 448 U.S. 438, 440, 100 S. Ct. 2752, 2754, 65 L. Ed. 2d 890 (1980) (“[A]ny curtailment
of a person’s liberty by the police must be supported at least by a reasonable and articulable
suspicion that the person seized is engaged in criminal activity.”). However, I disagree that the
officers lacked reasonable suspicion to stop Lopez’s vehicle. Accordingly, I dissent.
The district court denied Lopez’s motion to suppress, finding that the officers had a
reasonable suspicion that Lopez’s vehicle was involved in criminal activity. When reviewing such
a ruling, we review a district court’s factual findings “under the clearly erroneous standard.”
United States v. Inocencio, 40 F.3d 716, 721 (5th Cir. 1994). “The conclusions of law derived
from a district court’s findings of fact, such as whether a reasonable suspicion existed to stop a
vehicle, are reviewed de novo.” Id.
The Supreme Court has made clear that “any number of factors may be taken into account
in deciding whether there is reasonable suspicion to stop a car” near the border. United States v.
Brignoni-Ponce, 422 U.S. 873, 884, 95 S. Ct. 2574, 2582, 45 L. Ed. 2d 607 (1975). These
factors include: (1) the characteristics of the area; (2) proximity to the border; (3) the usual traffic
patterns on the particular road; (4) previous experience with alien traffic; (5) information about
recent illegal border crossings in the area; (6) the driver’s behavior; (7) aspects of the vehicle
itself; (8) the vehicle’s appearance; (9) whether the vehicle has an extraordinary number of
passengers; (10) whether passengers are attempting to hide; and (11) the appearance of the driver
and passengers. See United States v. Jones, 149 F.3d 364, 367 (5th Cir. 1998) (citing Brignoni-
Ponce, 422 U.S. at 884-85, 95 S. Ct. at 2582). A court’s inquiry into reasonable suspicion “is not
limited to an analysis of any one factor.” Inocencio, 40 F.3d at 722. “Rather, a finding of
reasonable suspicion must be based on the ‘totality of the circumstances known to the agent and
-15- the agent’s experience in evaluating such circumstances.’” Jones, 149 F.3d at 367 (quoting
United States v. Castaneda, 951 F.2d 44, 47 (5th Cir. 1992)).
The totality of the circumstances known to Federal Agent Mizell gave rise to a reasonable
suspicion that Lopez was involved in transporting illegal aliens. Mizell’s testimony addressed
several of the Brignoni-Ponce factors. Mizell testified that he stopped Lopez on FM 2644,
twenty miles from the U.S.-Mexico border. FM 2644 comes directly from El Indio on the U.S.-
Mexico border. FM 2644 was the only road circumventing the Highway 277 checkpoint.
Moreover, the checkpoint on Highway 277 was operational at the time Lopez was stopped. The
fact that a road circumvents an immigration checkpoint is relevant to establishing reasonable
suspicion. See, e.g., United States v. Aldaco, 168 F.3d 148, 152 (5th Cir. 1999); Inocencio, 40
F.3d at 723 (5th Cir. 1994); United States v. Ramirez-Lujan, 976 F.2d 930, 932, 934 (5th Cir.
1992). Finally, Mizell testified that there were “a lot of people” in Lopez’s four-door Buick, and
that the passengers were “piled in there.” Such testimony shows that Mizell saw “an
extraordinary number of passengers” in Lopez’s car. Jones, 149 F.3d at 367. According to
Mizell, the number of people in the car was “unusual.”
These articulable facts created a reasonable suspicion that Lopez’s vehicle was involved in
transporting illegal aliens. Accordingly, the district court did not err in finding that the officers’
stop of Lopez’s vehicle was constitutionally permissible. I would uphold the district court’s
denial of Lopez’s motion to suppress and affirm her conviction.
-16-