Revised December 9, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-50640 _____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BIVIAN VILLALOBOS, JR,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the Western District of Texas _________________________________________________________________ November 19, 1998 Before KING, GARWOOD, and HIGGINBOTHAM, Circuit Judges.
KING, Circuit Judge:
Defendant-Appellant Bivian Villalobos, Jr., appeals his
conditional plea of guilty on the grounds that the district court
erred in denying his motion to suppress evidence obtained as the
result of an allegedly unconstitutional stop by a United States
Border Patrol agent. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case concerns a Border Patrol stop on Highway 67, which
runs north from the Presidio, Texas port of entry to the United
States to Shafter, Texas, a small ex-mining community, and then to Marfa, Texas. Two numbered roads intersect Highway 67. Ranch
Road 170 runs along the United States-Mexico border, intersecting
Highway 67 at Presidio. Ranch Road 169 intersects Highway 67
about seven miles south of Marfa. The terrain from Presidio to
Shafter consists of rugged desert and mountains; the thirty-odd
miles from Shafter to Marfa are primarily rolling hills. This
area of far West Texas is occupied mainly by large ranches and is
extremely sparsely populated. Highway 67 is a known alien and
drug trafficking route, especially late at night.
During the early morning hours of March 14, 1997, United
States Border Patrol Agent Joe Threadgill was stationed at a
Border Patrol checkpoint about fifty-nine miles north of the
border and five miles south of Marfa, Texas, on Highway 67. The
checkpoint was closed at the time, but at about 1:15 a.m.,
Threadgill received a call from the Presidio port of entry
informing him that a light blue Chrysler, with Texas license
plate number 397XDL, had just entered the United States and
“would be a good check for narcotics if it came north.”1
Threadgill radioed this information to Border Patrol Agent Rodney
Hall, who was observing traffic on Highway 67 approximately
1 This information had been entered into a database maintained by the El Paso Intelligence Center. The agents later discovered that its source was an anonymous informant who, on January 22, 1997, tipped off a customs investigator that the Chrysler and three cars with Mexican license plates had made multiple narcotics smuggling trips across the border via ports of entry to the United States.
2 twelve to fifteen miles south of the Marfa checkpoint. At about
2:20 a.m., Hall noticed two vehicles approaching his location.
Pulling out to the edge of the highway, he illuminated the first
vehicle with his headlights as it passed and noted that it
resembled the light blue Chrysler that Threadgill had described.
Hall was able to pull in behind the first car because the two
vehicles were traveling about a quarter of a mile apart, but as
soon as he did so, the second vehicle decelerated and fell back a
mile or more.
Hall verified that the license plate number of the first car
matched the number that Threadgill had relayed to him. He also
advised Threadgill that he was following the Chrysler and that he
believed that the second vehicle was traveling with it. Hall
testified at the suppression hearing that smugglers often used a
lead car-load car arrangement, in which two vehicles travel
together so that the first vehicle can drive ahead to serve as a
scout for the car carrying the contraband. Upon hearing this
news, Threadgill left the checkpoint and drove south to meet
Hall, stopping at the intersection of Highway 67 and Ranch Road
169, about four miles south of the checkpoint. Threadgill
illuminated the three vehicles with his headlights as they passed
and noticed that the third vehicle, the vehicle originally
following the Chrysler, was a “brown stake-bed Ford pickup”
truck. He could not, however, see into the truck’s cab because
the windows were darkly tinted. Although he considered running a
3 vehicle registration check, he ultimately concluded that he would
be unsuccessful because the truck had temporary paper tags. Hall
testified that the tags were “another indicator to us that
something could possibly be wrong” because smugglers often use
vehicles with temporary tags. The agents then decided that they
would pull over both vehicles when they reached the Marfa
checkpoint.
Hall pulled over the Chrysler; Threadgill stopped the truck.
Threadgill informed the driver of the truck, later identified as
Bivian Villalobos, Jr., that he was an immigration officer and
that he wanted to check the driver’s citizenship. Villalobos
produced a driver’s license, stated that he was a United States
citizen, and, like the driver of the Chrysler, orally consented
to a canine sniff of his vehicle. The dog alerted to both
vehicles, and although no drugs were found in the Chrysler, the
agents discovered sixty bundles (about 133 pounds) of marijuana
hidden in the frame of the truck.
Villalobos was charged with possession with intent to
distribute marijuana, a violation of 21 U.S.C. § 841(a)(1). At a
pretrial suppression hearing, the district court concluded that
the stop of the truck was supported by reasonable suspicion
because of the time of night, the proximity of the two vehicles
as they traveled on a highway known as an illegal alien and
narcotic trafficking route, the truck’s paper tags, and the very
dark tint on the truck’s windows. Villalobos then entered a
4 conditional guilty plea, reserving his right to appeal the
district court’s denial of his motion to suppress.
II. STANDARD OF REVIEW
We review the district court’s factual findings for clear
error, viewing the evidence presented at a pretrial suppression
hearing in the light most favorable to the prevailing party, in
this case the government. See United States v. Cardona, 955 F.2d
976, 977 (5th Cir. 1992). We will not say that a finding is
clearly erroneous unless we are left with the definite and firm
conviction that a mistake has been committed. See United States
v. Casteneda, 951 F.2d 44, 47 (5th Cir. 1992) (citing United
States v. Fernandez, 887 F.2d 564, 567 (5th Cir. 1989)). We
review de novo, however, conclusions of law derived from the
district court’s factual findings, such as the determination that
reasonable suspicion justified the investigatory stop of
Villalobos’s vehicle. See United States v. Inocencio, 40 F.3d
716, 721 (5th Cir. 1994) (citing Cardona, 955 F.2d at 977).
III. DISCUSSION
Under United States v. Brignoni-Ponce, 422 U.S. 873, 884
(1975), and United States v. Cortez, 449 U.S. 411, 421-22 (1981),
Border Patrol agents on roving patrol may stop a vehicle only if
they are aware of specific articulable facts, together with
rational inferences from those facts, that reasonably warrant
suspicion that that particular vehicle is involved in illegal
activity. The relevant factors include: (1) the characteristics
5 of the area in which the agents encounter the vehicle; (2) the
previous experience of the arresting agents with criminal
activity; (3) the proximity of the area to the border; (4) the
usual traffic patterns on the road in question; (5) information
about recent illegal trafficking in aliens or narcotics in the
area; (6) the appearance of the vehicle; (7) the behavior of the
vehicle’s driver; and (8) the number, appearance, and behavior of
the passengers. See Brignoni-Ponce, 422 U.S. at 884-85; United
States v. Nichols, 142 F.3d 857, 865 (5th Cir. 1998) (quoting
Inocencio, 40 F.3d at 722). Reasonable suspicion is not limited
to an analysis of any one factor. See Inocencio, 40 F.3d at 722.
Instead, since “reasonable suspicion” is a fact-intensive test,
each case must be examined from the “totality of the
circumstances known to the agent, and the agent’s experience in
evaluating such circumstances.” Casteneda, 951 F.2d at 47.
We first consider the characteristics of the area in which
the agents encountered Villalobos’s vehicle and the proximity of
that area to the border. The record shows that the area between
Presidio and Marfa was both close to the border and frequented by
border traffic. Agent Threadgill testified that this region was
a “border area,” a description further borne out by the Border
Patrol’s decision to maintain a permanent checkpoint at Marfa.
Moreover, the road on which Villalobos was driving led directly
from the border and was intersected only by other roads leading
to the border. Villalobos was relatively close to the border
6 when Agent Hall first noticed him. This court previously has
determined that vehicles traveling more than fifty miles from the
border usually are a “substantial distance” from the border. See
Inocencio, 40 F.3d at 722 n.7 (internal quotes omitted). In this
case, Villalobos’s truck was about thirty-six miles from the
border--well under the benchmark fifty miles--when Hall first
spotted it. Although the agents did not stop the truck until the
Marfa checkpoint, more than fifty miles from the border, their
uncontroverted testimony reveals that for safety reasons, they
chose to wait until they reached a lighted area to investigate
further. In short, Villalobos was unquestionably traveling
through an area heavily traversed by border traffic, even closer
to the border than a checkpoint designed to intercept illegal
international smuggling.
Nevertheless, Villalobos contends that the characteristics
of the area do not support any inference that he was involved in
illegal activity because he could have been returning from Big
Bend National Park or traveling from one of the towns along
Highway 67. His first argument is unavailing, however, because
Highway 67 is a substantial distance from the southwestern edge
of the park. The likelihood that a driver proceeding north on
Highway 67 at 2:20 a.m. is a tourist returning from Big Bend is
thus considerably lower here than in the cases Villalobos cites,
which concern stops on Highways 118 and 385, routes that lead
directly out of Big Bend. See Rodriguez-Rivas, 151 F.3d at 378;
7 United States v. Jones, 149 F.3d 364, 366 (5th Cir. 1998); United
States v. George, 567 F.2d 643, 644 (5th Cir. 1978); United
States v. Frisbie, 550 F.2d 335, 336-37 (5th Cir. 1977). And the
possibility that Villalobos could have been an innocent traveler
from Presidio or Shafter does not negate the fact that the area
through which he was driving was both very close to the border
and very heavily traversed by border traffic.
The other Brignoni-Ponce factors also support the validity
of the stop. First, the arresting agents’ law enforcement
background suggests that they were knowledgeable and experienced.
Threadgill had been stationed in Marfa as a Border Patrol agent
for more than twelve years and Hall for about fifteen months.
Second, the usual traffic patterns on Highway 67 support the
agents’ suspicion of Villalobos’s truck. Threadgill testified at
the suppression hearing that in the early morning hours on
Highway 67, he would see only one car every hour or hour and a
half. Although traveling at an unusual time of day may not by
itself give rise to reasonable suspicion, it is a permissible
consideration. See United States v. Lujan-Miranda, 535 F.2d 327,
329 (5th Cir. 1976). Moreover, the agents, who were familiar
with area residents, did not recognize Villalobos’s truck as a
local vehicle. Third, there was ample evidence that Highway 67
was a notorious smuggling route. Threadgill stated that
smugglers had transported both narcotics and illegal aliens north
on Highway 67 in the month prior to Villalobos’s arrest and that
8 he normally apprehended aliens in the area from Presidio to Marfa
at least once a week.
Fourth, the appearance of the truck was suspicious because
it displayed only temporary fifteen-day tags rather than a
permanent license plate. Agent Hall testified that this was
“another indicator to us that something could possibly be wrong”
because “smugglers tend to use vehicles that have temporary tags
or license plates that are expired because they buy them off the
lots, they don’t have to pay insurance and they are planning on
using them only once or twice.” Villalobos contends that
temporary tags cannot be suspicious given our refusal to find
reasonable suspicion in Rodriguez-Rivas, where the vehicle
stopped had no license plates at all. But while we acknowledged
in Rodriguez-Rivas that “the absence of Texas license plates
alone does not authorize a Border Patrol agent to stop a
vehicle,” 151 F.3d at 381, we also emphasized that “the lack of
required vehicle tags is a factor to consider in determining the
reasonableness of the stop . . . .” Id. This factor takes on
increased significance where, as here, it is known to be a tactic
employed by contraband traffickers to escape detection.
Furthermore, while the truck’s darkly tinted windows are not
uncommon in southwest Texas, see United States v. Diaz, 977 F.2d
163, 165 n.5 (5th Cir. 1992), the extreme darkness of
Villalobos’s tint did not allay the other suspicious
circumstances.
9 Finally, the behavior of the driver suggested that he might
be involved in illegal activity. First, Villalobos appeared to
be traveling in a lead car-load car arrangement with the blue
Chrysler; they were driving within a quarter-mile of each other
at a time and in a place where it was unusual to see more than
one car every hour to hour and a half. Although observation of
two cars in proximity on a sparsely traveled road does not itself
justify a stop, it may raise an agent’s suspicions. See United
States v. Saenz, 578 F.2d 643, 646-47 (5th Cir. 1978); United
States v. Villarreal, 565 F.2d 932, 936 (5th Cir. 1978); United
States v. Barnard, 553 F.2d 389, 392 (5th Cir. 1977). Although
Villalobos suggests that such a suspicion is unfounded absent
some connection between the Chrysler and his truck, such as a CB
radio hookup or similar license plates, we held in United States
v. Inocencio, 40 F.3d 716, 720, 723 (5th Cir. 1994), that the
lead car-load car inference was justified where two vehicles were
traveling near each other in a sparsely populated area and one
vehicle had been observed making u-turns in the area and driving
up and down the highway.2 More important, there was “evidence to
bolster the lead car-load car inference,” Melendez-Gonzalez, 727
F.2d at 412, namely the tip that the Chrysler was likely to be
2 Both the load car and the lead car apparently contained two-way radios, but Border Patrol agents apparently did not know of their existence before they stopped the first vehicle, the load car. See Inocencio, 40 F.3d at 720-21.
10 smuggling drugs and the agents’ knowledge that smugglers favored
the lead car-load car arrangement.
Villalobos contends, however, that we cannot consider the
tip about the Chrysler in evaluating whether there was reasonable
suspicion justifying a stop of his truck. First, he claims that
the tip, nearly two months old, was stale. We note, however,
that the informant described a particular vehicle that had made
multiple smuggling trips, thus warranting the presumption that it
was engaged in continuous activity. Second, Villalobos argues
that the tip could not contribute to the agents’ reasonable
suspicion calculus because it neither bore indicia of reliability
nor contained enough detail to allow it to be independently
corroborated by the agents. We disagree. The Supreme Court
approved a vehicle stop based on an anonymous tip that the driver
was carrying drugs in Alabama v. White, 496 U.S. 325 (1990),
pointing out that the tip in that case was independently
corroborated by the officers and contained a range of details
relating not just to easily obtained facts and conditions
existing at the time of the tip, but to future actions of third
parties not easily predicted. See id. at 331-32. In White, an
anonymous telephone informant told police that Vanessa White
would leave a particular apartment at a given time in a brown
Plymouth station wagon, carrying cocaine in her attaché case.
See id. at 327. Officers waited outside the address given by the
informant and followed a woman as she left in the specified car.
11 They stopped her just before she reached the motel. See id. The
Supreme Court held that the fact that the woman left in the car
described by the informant, within the time frame given by the
informant,3 and drove the most direct route to the motel
constituted sufficient corroboration, even though the woman’s
name and exact address were not verified prior to the stop, she
was empty-handed when she left the apartment, and the officers
had no way of knowing whether she would turn in to the motel or
pass it by. See id. at 331. Although the tip in this case is
clearly less detailed than that in White, it was corroborated
insofar as the Chrysler did come into the country via a port of
entry from Mexico and travel along roads known for drug smuggling
at a time when legitimate traffic was very rare. Cf. United
States v. Lopez-Gonzalez, 916 F.2d 1011, 1014 (5th Cir. 1990)
(finding corroboration when two vehicles matching the description
given by an informant passed a Border Patrol agent at the
specified time in the general location predicted by the tip).
Although the informant in this case did not say when the Chrysler
3 The Court acknowledged that the officer who received the tip testified that the informant gave a particular time that the woman would be leaving, but did not state what that time was. It noted, however, that after the call, the officer and his partner went to the apartment complex named in the tip and put it under surveillance. “Given the fact that the officers proceeded to the indicated address immediately after the call and that respondent emerged not too long thereafter, it appears from the record before us that respondent’s departure from the building was within the timeframe predicted by the caller.” White, 496 U.S. at 331.
12 would be traveling, as did the informants in White and Lopez-
Gonzalez, he or she did claim that it was engaged in a continuous
drug trafficking enterprise. It thus appears to us that the
Chrysler’s trip, made less than two months later, was within the
approximate timeframe implied in the tip.
Moreover, even assuming that the tip alone was too
unreliable to justify a stop, it contributes, along with the
other Brignoni-Ponce factors, to the agents’ particularized
suspicion of the truck. The tip, taken in combination with the
characteristics of the area, the time of day, the truck’s
appearance, and Villalobos’s behavior, raised a suspicion that
Villalobos, and not just any traveler along Highway 67 late at
night, was engaged in wrongdoing. This is the essence of our
Fourth Amendment investigatory stop jurisprudence. See Cortez,
449 U.S. at 417-18 (“Based upon that whole picture the detaining
officers must have a particularized and objective basis for
suspecting the particular person stopped of criminal activity.”).
But Villalobos’s suspicious behavior was not limited to
traveling closely behind the truck. He also decelerated
noticeably when Agent Hall pulled in front of him, even though he
had not been speeding. Although Villalobos’s counsel suggested
at the suppression hearing that he could have been following the
Chrysler for greater illumination or safety, he not only failed
to take advantage of the increased light (and safety) from the
law enforcement vehicle but fell back far enough to negate the
13 benefits of traveling with another car. Villalobos argues,
however, that his dropping back three-quarters of a mile after
Agent Hall pulled in front of him cannot be a suspicious
circumstance, because innocent individuals typically slow in the
presence of a law enforcement vehicle. The record does not show
whether Agent Hall was driving a marked car; he refers only to
his “patrol car” in his suppression hearing testimony. If the
vehicle was unmarked, Villalobos’s behavior was certainly
suspicious; an innocent individual likely would not have
decelerated sharply and fallen three-quarters of a mile behind a
civilian car where he had been following another automobile at a
distance of only a quarter-mile. Even if Hall’s car was marked,
however, Villalobos’s behavior was unusual. We have held that
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. Compare United
States v. Lopez, 911 F.2d 1006, 1010 (5th Cir. 1990), with Diaz,
977 F.2d at 165. Such deceleration may be additionally
suspicious when the car was not speeding to begin with: We
emphasize that Diaz held that “there is nothing suspicious about
a speeding car slowing down after a marked patrol unit turns to
follow.” Id. (emphasis added). The car in Diaz was traveling
seventy-five miles an hour on a rainy night, whereas Villalobos’s
car was not speeding. Moreover, even though the typical driver
may slow at the sight of a law enforcement vehicle, Villalobos
14 dropped back a full mile or more. While we recognize that
deceleration is a common and often completely innocent response
to the approach of a patrol car, we hold that it may be one
factor contributing to the reasonable suspicion justifying a stop
such as this one.
The district court correctly concluded that, under the
totality of the circumstances, the agents had reasonable
suspicion to stop Villalobos’s truck. Villalobos was traveling
through a sparsely populated border region along a notorious
smuggling route at a time of day preferred by smugglers. He was
driving a truck that experienced Border Patrol agents did not
recognize as a local vehicle and that carried the temporary tags
smugglers commonly use to avoid detection. Most important, he
appeared to be traveling in tandem, an arrangement favored by
smugglers, with a car that an informant had stated frequently
carried drugs across the border. When a Border Patrol agent
pulled in front of Villalobos, he slowed considerably and
maintained three times the distance between his truck and the
patrol car that he had kept up between himself and the Chrysler.
Given these facts, we cannot say that reasonable suspicion was
lacking. The Fourth Amendment seeks to prevent arbitrary police
action, not to require absolute certainty before law enforcement
officers may investigate. See White, 496 U.S. at 330 (quoting
United States v. Sokolow, 490 U.S. 1, 7 (1989)); Brignoni-Ponce,
422 U.S. at 878; United States v. Garza, 544 F.2d 222, 225 (5th
15 Cir. 1976). The stop here was not merely the result of a lucky
hunch; it was based on articulable factors indicating that
illegal activity might be afoot.
IV. CONCLUSION
For the reasons above, we AFFIRM the judgment of the
district court.