United States v. Vega

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 26, 2001
• Docket: 00-50156
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-50156 _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALFREDO VEGA,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Western District of Texas USDC No. P-99-CR-195 _________________________________________________________________ April 24, 2001

Before JOLLY, MAGILL,* and BENAVIDES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:**

Alfredo Vega appeals the denial of his motion to suppress

evidence found in his vehicle after he was stopped by border patrol

agents heading north on Highway 385, about 35 to 40 miles from the

United States/Mexico border. Because we believe the district court

properly found that the border patrol officers based their stop of

Vega’s vehicle on reasonable factors, we affirm.

* Circuit Judge of the Eighth Circuit, sitting by designation. ** 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

On June 10, 1999, Vega was indicted for possession of

marijuana with intent to distribute in violation of 21 U.S.C.

§ 841(a)(1). Vega moved to suppress the evidence--bundles of

marijuana discovered during a search of his car--on the grounds

that border patrol agents did not have reasonable suspicion to stop

his vehicle. Following an evidentiary hearing, Vega’s motion was

denied.

Vega entered a conditional guilty plea, reserving the right to

appeal the denial of his motion to suppress. He was sentenced to

42 months’ imprisonment, followed by five years of supervised

release. He has filed a timely notice of appeal.

At Vega’s motion to suppress evidentiary hearing, the only

witness was United States Border Patrol Agent Sam Pat Ferguson.

Agent Ferguson had worked for the border patrol for thirteen years.

According to his testimony, he and his supervisor, Nell Hernandez,

were on Highway 385 on the morning of February 21, 1999. At this

location, ten to fifteen miles north of the intersection with

Highway 2627, they were in a desolate area approximately thirty

five to forty miles north of the United States/Mexico border at La

Linda. Because Highway 2627 to La Linda is the only junction off

of Highway 385 before the entry to Big Bend National Park, any cars

traveling north must have come either from Big Bend National Park

or from La Linda. La Linda is not an official point of entry into

the United States from Mexico; the La Linda bridge, which crosses

2 the Rio Grande, is privately owned and is blockaded from vehicular

traffic with concrete barriers.

Ferguson and Hernandez parked on the west side of Highway 385,

facing south, and set out on foot looking for bike tracks and other

signs of illegal aliens. Sensor devices in La Linda had detected

bicycle traffic that morning, which the Border Patrol suspected was

a group of aliens coming north up Highway 385. Agent Ferguson

testified that groups ride bicycles on the highway north from La

Linda, and lay up during the day off the highway. Highway 385 is

a well known corridor for drug and alien trafficking.

The agents were returning to their car when they saw a clean,

green Hyundai coming around a curve heading north. Agent Ferguson

testified that the driver of the vehicle, who turned out to be

Vega, appeared startled upon seeing the officers and slowed his

vehicle drastically. Vega made eye contact with the agents, but

did not wave or otherwise acknowledge them in any way before

proceeding, and regaining normal speed. Agents Ferguson and

Hernandez decided to follow the vehicle, thinking that the

circumstances and driver’s behavior were somewhat suspicious.

The agents caught up with the Hyundai, at which time Vega, who

appeared to be traveling at a normal rate of speed, slowed to about

40 miles an hour, 30 to 40 miles below the speed limit of 70 miles

an hour. The agents followed four car lengths behind Vega while

they ran a registration check on the vehicle.

3 While awaiting the registration information, the agents

observed Vega to be preoccupied with the agents, constantly

checking his rearview mirror and swerving the vehicle slightly each

time he looked back. Agent Ferguson noted that Vega did not appear

to be a tourist from Big Bend National Park because he was alone

and had no visible camping gear. In addition, Agent Ferguson, who

was familiar with local traffic, did not recognize Vega as a local.

The registration information revealed that the vehicle

belonged to a Troy Croft from Midland, Texas. The suspicion of the

agents was heightened because Vega’s Hispanic appearance did not

match the non-Hispanic name on the car registration. Agent

Ferguson testified that, based on his experience, the name of the

apprehended driver in narcotics incidents “fairly often” does not

match the person to whom the vehicle is registered.*** Agent

Ferguson also testified that the Midland address alerted him, since

the Midland/Odessa area is known as a pipeline for aliens and

drugs. Vega was headed in the direction of Midland/Odessa.

At this time, Agent Ferguson testified that they knew “based

on everything that we had seen that we needed to stop [Vega] and it

was possible he was carrying contraband.” When the agents

activated their emergency lights, Vega threw on his brakes and

jerked his vehicle to a stop very quickly, almost causing a

*** Agent Ferguson had been involved in approximately 50 to 100 smuggling stops in his career, and he testified that many of those stops involved drivers who had a Hispanic appearance in a vehicle with an Anglo name on the registration.

4 collision with the agents’ vehicle. Agent Ferguson approached

Vega’s car and noticed the strong smell of fabric softener in

addition to seeing a bag of potpourri on the seat. He asked Vega

where he was from, and Vega replied that he was from Mexico. Agent

Ferguson then asked Vega if he could search the truck, and Vega

consented. Vega was arrested after Agent Ferguson found bundles of

marijuana in the trunk.

II

Vega asserts on appeal that the district court erred in

denying his motion to suppress. He argues the agents violated the

Fourth Amendment because they lacked reasonable suspicion to stop

him.

A

In reviewing the denial of a motion to suppress, the district

court’s factual findings are reviewed for clear error, and its

legal conclusions, including whether reasonable suspicion existed

for a stop, are reviewed de novo. United States v. Inocencio, 40

F.3d 716, 721 (5th Cir. 1994). In addition, the evidence presented

during the suppression hearing is to be viewed in the light most

favorable to the prevailing party--in this case, the government.

Id.

A border patrol agent conducting a roving patrol has the

reasonable suspicion necessary to make a temporary investigative

stop of a vehicle if the agent is aware of specific articulable

facts, together with rational inferences, that reasonably warrant

5 suspicion that the vehicle or its occupant is engaged in criminal

activity. See United States v. Brignoni-Ponce, 422 U.S. 873, 884

(1975). Reasonable suspicion is to be determined by considering

the totality of the circumstances. See United States v. Cortez,

449 U.S. 411, 421-22 (1981). This is a fact-intensive inquiry, and

“each case must be examined from the totality of the circumstances

known to the agent, and the agent’s experience in evaluating such

circumstances.” United States v. Villalobos, 161 F.3d 285, 288

(5th Cir. 1998). Factors to be considered in a reasonable

suspicion analysis include: (1) proximity to the border;

(2)information about recent illegal trafficking in aliens or

narcotics in the area; (3) characteristics of the area; (4) usual

traffic patterns; (5) the agent’s previous experience in detecting

illegal activity; (6) the behavior of the driver; and (7)

particular aspects or characteristics of the vehicle. United

States v. Brignoni-Ponce, 422 U.S. at 884-85. See also Inocencio,

40 F.3d at 722. Although the satisfaction of one single factor

alone may be insufficient, the absence of a particular factor

should not control a court’s conclusion regarding reasonable

suspicion. United States v. Cardona, 955 F.2d 976, 980 (5th Cir.

1992).

B

Based on the totality of the circumstances, we agree with the

district court’s finding that Agents Ferguson and Hernandez

possessed reasonable suspicion that Vega and his vehicle were

6 engaged in possible criminal activity. In particular, we believe

a weighing of the Brignoni-Ponce factors validates the agents’ stop

of Vega.

We have characterized the first factor, proximity to the

border, as the “paramount factor” to consider in determining

reasonable suspicion. United States v. Aldaco, 168 F.3d 148, 150

(5th Cir. 1999). Proximity to the border gives the agents a reason

to believe that the vehicle came from the border. Generally, a

vehicle must be within 50 miles of the border for this factor to be

met. Inocencio, 40 F.3d at 722 n.6.

Vega has conceded that his vehicle was only 35 to 40 miles

from the border at the time he was stopped. Furthermore, Vega was

driving north, away from the border, when he encountered the

agents. We have held that these two considerations support the

reasonableness of an agent’s suspicion in stopping a vehicle. See

United States v. Zapata-Ibarra, 212 F.3d 877, 881 (5th Cir. 2000),

cert. denied, 2000 WL 1468443 (U.S. Oct. 30, 2000) (No. 00-6258).

Vega argues that the agents had no reason to believe that he had

recently crossed the border, as he could have come from Big Bend

National Park on Highway 385, rather than from La Linda on Highway

2627. Furthermore, Vega notes that he could not have crossed the

barricaded bridge at La Linda in his car. He also asserts that his

vehicle was clean, showing no signs that it had crossed the border

at a low-water crossing.

7 This court has found the proximity element satisfied even when

the agents had no evidence suggesting that the vehicle had actually

crossed the border. Inocencio, 40 F.3d at 722 (formulating the

inquiry as “whether an arresting agent could reasonably conclude

that a particular vehicle originated its journey at the border.”).

Agent Ferguson testified that, in his experience, individuals often

transport illegal contraband across the border and deliver it to a

waiting vehicle in the United States. Because these vehicles often

park on a paved road to await the deliveries, the lack of dust on

the vehicle is not inimical to the belief that it could be carrying

contraband. Vega was within fifty miles of the border, on a road

that could have come only from either a private, barricaded border

or a national park, also located on the border. The district court

correctly found that a reasonable agent could conclude that Vega’s

journey originated at the closest border. We thus agree that the

first, and paramount, Brignoni-Ponce factor is satisfied in this

case.

The fact that the agents were at that spot on Highway 385

because there had been recent “hits” on sensor intrusion devices

indicating bicycle traffic near the border south of their location

also supports the agents’ suspicion that Vega might have come from

the border at La Linda. Vega argues that the sensors indicated

bicycle traffic, not automobile traffic, and thus, this information

could not have affected the officer’s suspicion of his vehicle.

Vega’s vehicle, however, could have been the “waiting vehicle” for

8 contraband transported by those individuals who set off the sensor

intrusion devices. Thus, the suspected illegal activity at La

Linda that morning contributed to the reasonableness of the agents’

suspicion.

The third and fourth factors, characteristics of the area and

traffic patterns, also weigh in favor of the agents’ finding of

reasonable suspicion. The district court noted that Highway 385,

where Vega was first observed and stopped, runs from Big Bend

National Park, which is located on the border, to Marathon, Texas.

The court further found that most of the traffic on this road is

local traffic or tourist traffic coming in or out of Big Bend,

although Agent Ferguson testified that the other highway into Big

Bend, Highway 118, is more heavily traveled by tourists. Agent

Ferguson testified that he did not recognize Vega as a local, and

that Vega did not appear to be a tourist from Big Bend because he

was alone and had no visible camping gear. Although Vega noted

that there are hotels located in Big Bend, the fact that Vega was

traveling alone and was not obviously a tourist added to the

agents’ reasonable suspicion of Vega.

Highway 385 is also known for being a major corridor for alien

and narcotics smuggling. A road’s reputation as a smuggling route

contributes to the reasonableness of an agent’s suspicion. See

United States v. Nichols, 142 F.3d 857, 867 (5th Cir. 1998). In

United States v. Rodriguez-Rivas, 151 F.3d 377, 380 (5th Cir.

1998), this court specifically noted that the record revealed that

9 “U.S. Highway 385 is frequently used by smugglers in an attempt to

avoid the regularly-manned checkpoint on U.S. Highway 67.” The

district court recognized this in Vega’s suppression hearing, and

Agent Ferguson testified that he was aware of the road’s

reputation.

Another factor, the previous experience of the agents, also

supports the reasonableness of the agents’ suspicion in this case.

The district court noted that Agent Ferguson has worked for the

United States Border Patrol for thirteen years, while Agent

Hernandez has been an agent for twelve years. The district court

further noted that Agent Ferguson has been involved in somewhere

between fifty and one hundred smuggling cases in the area. Vega

does not question the experience of these border patrol agents--

thus, this factor is properly considered as support for the agents’

stop of Vega’s vehicle. See Aldaco, 168 F.3d at 151-52.

Vega’s behavior also contributes to the reasonableness of the

agents’ suspicion. Agent Ferguson testified that Vega appeared

startled upon seeing the agents, slowed his car drastically, and

failed to acknowledge them after making eye contact. Furthermore,

while the agents were following him, Vega slowed down from 70 miles

per hour to approximately 35 or 40 miles per hour. In general,

Vega appeared preoccupied with the agents, constantly checking his

rearview mirror, and swerving his vehicle slightly when he would

check his rearview mirror.

10 We recognize that the failure of a driver to make eye contact

with officers cannot support an officer’s reasonable suspicion.

See United States v. Chavez-Villareal, 3 F.3d 124, 127 (5th Cir.

1993). However, we have held that an individual’s “noticeable

deceleration in the presence of a patrol car can contribute to

reasonable suspicion, even though drivers often slow when they see

law enforcement personnel.” Villalobos, 161 F.3d at 291. Here,

Vega slowed drastically when the agents began following him, to a

point thirty to forty miles below the posted speed limit. While

repeatedly looking into a rearview mirror is not suspicious conduct

when it is the result of an officer’s actions, for instance, if the

patrol car is “tailgating” the vehicle, see United States v. Jones,

149 F.3d 364, 370-71 (5th Cir. 1998), Vega repeatedly looked into

the rearview mirror when Agents Ferguson and Hernandez were

following four car lengths behind his vehicle. This, combined with

the drastic reduction in speed, contributes to the agents’

reasonable suspicion.

The district court also considered other factors, including

the fact that Vega’s Hispanic appearance was incongruous with the

non-Hispanic name on the vehicle’s registration. This court has

affirmed the use of this incongruity as a factor supporting the

reasonableness of an agent’s suspicion. United States v. Morales,

191 F.3d 602, 605 (5th Cir. 1999), cert. denied, 120 S.Ct. 1211

(2000). The district court also noted that Agent Ferguson found it

suspicious that Vega’s vehicle was registered in Midland, given his

11 knowledge that Midland often serves as a staging point for illegal

trafficking. These factors, combined with the Brignoni-Ponce

factors discussed above, all support the reasonableness of the

agents’ suspicion in this case.

III

In conclusion, we acknowledge that several of the factors that

contribute to reasonable suspicion are commonplace occurrences and

reactions that might apply to innocent citizens, especially when

considered singularly. But when all of these factors are

considered of one piece, the outline of a picture begins to emerge,

especially to the eyes of trained law enforcement officers, which

create -– not probable cause –- but reasonable suspicion. This is

the case here.

We thus agree with the district court that, based on the

totality of the circumstances and, in particular, the Brignoni-

Ponce factors, Agents Ferguson and Hernandez possessed sufficient

reasonable suspicion to warrant their stop of Vega’s vehicle. The

rulings and the judgment of the district court are therefore

A F F I R M E D.