U.S. v. Aldaco, 97-51078

• Citation: 168 F.3d 148
• Decision Date: 17 February 1999
• Docket Number: No. 97-51078,97-51078
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Guillermo Coronado ALDACO, also known as Juan Coronado Aldaco, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 148

168 F.3d 148

UNITED STATES of America, Plaintiff-Appellee, v. Guillermo Coronado ALDACO, also known as Juan Coronado Aldaco, Defendant-Appellant.

No. 97-51078.

United States Court of Appeals Fifth Circuit.

Feb. 17, 1999.

Rehearing Denied March 22, 1999.

Joseph H. Gay, Jr., U.S. Atty., Diane D. Kirstein, San Antonio, TX, for Plaintiff-Appellee.

M. Carolyn Fuentes, Philip J. Lynch, San Antonio, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before REYNALDO G. GARZA, POLITZ and BARKSDALE, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

I. Factual and Procedural Background

At approximately 10:45 p.m. on April 4, 1997, Border Patrol Agents Rene Zamora ("Zamora") and Charles Grout ("Grout") were patrolling Highway 85. At that time, they saw a Suburban traveling eastbound toward Dilley, Texas heading away from the United States-Mexico border. When the agents first observed the Suburban it was approximately seventy-five or eighty miles from the border and about seven miles from Dilley. The agents followed the Suburban because they suspected that it was the same vehicle they had seen earlier in Encinal, Texas, believed to be owned by a suspected alien smuggler. A license plate check revealed that the license plate was not the same as the alien smuggler's. However, Zamora believed that the license plates had been switched. This belief was based upon Zamora's knowledge that the alien smuggler in Encinal had a car lot with many cars and in his experience, alien smuggling often involves the changing of license plates.

The agents pulled alongside the Suburban and used a flashlight to illuminate its interior. The driver, Guillermo Coronado Aldaco ("Aldaco"), crouched down into his seat and did not look at the agents when they pulled up beside him. Zamora considered this conduct odd, but common for alien smugglers. Grout then looked through the Suburban's window with a flashlight and observed a package on the passenger's side and bulky objects covered with blankets in the back of the vehicle. Although no movement was apparent, the agents thought the bulky objects might be people. Consequently, the agents concluded that they had reasonable suspicion to conduct an immigration inspection.

The agents activated their red and blue lights, however, Aldaco did not stop for about a half mile. When Aldaco rolled down his window, Zamora immediately detected a strong odor of marijuana and recognized the bulky packages in the front passenger seat as bricks of marijuana wrapped in cellophane and duct tape. Aldaco consented to a search of the vehicle. The total weight of the marijuana seized from Aldaco's vehicle was 503 pounds.

An indictment charged Aldaco with possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a), and with illegal reentry into the United States after deportation in violation of 8 U.S.C. § 1326. Aldaco filed a motion to suppress asserting that the marijuana seized was the result of an illegal detention by the Border Patrol agents. The district court denied the motion. Aldaco then entered a conditional plea of guilty to both counts of the indictment, reserving the right to appeal the denial of his motion to suppress. Aldaco was sentenced to two concurrent 80-month terms of imprisonment. This appeal followed.

II. Standard of Review

We review the denial of a motion to suppress under two standards. United States v. Rodriguez-Rivas, 151 F.3d 377, 379 (5th Cir.1998) (citing United States v. Inocencio, 40 F.3d 716, 721 (5th Cir.1994)). First, we review the district court's factual findings for clear error and view the evidence presented at a pretrial suppression hearing in the light most favorable to the prevailing party. United States v. Villalobos, 161 F.3d 285, 288 (5th Cir.1998) (citing United States v. Cardona, 955 F.2d 976, 977 (5th Cir.), cert. denied, 506 U.S. 942, 113 S.Ct. 381, 121 L.Ed.2d 291 (1992)). This Court will not conclude that a factual finding is clearly erroneous unless we are definite that a mistake has been committed. Villalobos, 161 F.3d at 288. Secondly, conclusions of law derived from the district court's factual findings are reviewed de novo. United States v. Jones, 149 F.3d 364, 367 (5th Cir.1998). Therefore, the determination of whether reasonable suspicion existed to stop Aldaco's vehicle is reviewed de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Villalobos, 161 F.3d at 288.

III. Discussion

Roving Border Patrol agents may make a temporary investigative stop of a vehicle if they are "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, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); United States v. Cortez, 449 U.S. 411, 416, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). The factors that are considered in determining whether reasonable suspicion existed are: (1) proximity of the area to the border; (2) known characteristics of a particular area; (3) previous experience of the arresting agents with criminal activity; (4) 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 the passengers. Brignoni-Ponce, 422 U.S. at 884-85, 95 S.Ct. 2574; Inocencio, 40 F.3d at 722. In analyzing whether reasonable suspicion existed, however, no single factor is determinative. Jones, 149 F.3d at 367. Thus, determining whether the Border Patrol objectively possessed 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.' " Villalobos, 161 F.3d at 288 (quoting United States v. Casteneda, 951 F.2d 44, 47 (5th Cir.1992)).

Aldaco argues that the marijuana was discovered as a result of an illegal stop and that it should have been suppressed by the district court. He contends that the agents lacked reasonable suspicion to stop his vehicle because the factors that they cited for conducting the search did not reach the level of "reasonable suspicion." Aldaco asserts that the factors are too general. Aldaco maintains that his failure to look at the agents when they pulled alongside his vehicle was not suspicious because he was traveling at about fifty-five miles per hour on a wet, two-lane highway and thus had to keep his eyes on the road. Furthermore, there was no evidence that he had recently crossed the border. Aldaco also argues that he was not traveling during a shift change and the lack of predictability for roving patrols makes shift change an unimportant factor that cannot support reasonable suspicion.

This Circuit has recognized that the proximity of a stop to the border is a paramount factor. Inocencio, 40 F.3d at 722 n. 6. When a stop occurs a substantial distance from the border, this element is missing. Rodriguez-Rivas, 151 F.3d at 380 (citing United States v. Melendez-Gonzalez, 727 F.2d 407, 411 (5th Cir.1984)). A "substantial distance" from the border usually constitutes vehicles traveling more than fifty miles from the border. Rodriguez-Rivas, 151 F.3d at 380; Inocencio, 40 F.3d at 722 n. 7 (internal quotes omitted). If there is no reason to believe that the vehicle has traveled from the border, the remaining factors must be examined carefully. Rodriguez-Rivas, 151 F.3d at 380.

Aldaco's Suburban was first observed seventy-five or eighty miles from the border. Accordingly, Aldaco's vehicle was a substantial distance from the border. Therefore, Aldaco was not close enough to the border for the agents to reasonably presume that he had recently crossed the border from Mexico. Thus, this Court must examine the remaining Brignoni-Ponce factors carefully. Id. at 380.

The appearance of Aldaco's vehicle is another important factor which this Court must consider. Zamora testified that the agents suspected that Aldaco's Suburban was the same vehicle that belonged to a notorious alien smuggler whom they had seen earlier that day in Encinal, Texas. The agents came to this conclusion because Aldaco's Suburban was "almost identical" to the smuggler's vehicle. Moreover, Zamora knew that the alien smuggler owned a car lot with "a bunch" of cars on it. Thus, even though a license plate check revealed that the license plates were not the same, Zamora based upon his experience as an agent knew that smugglers often change license plates on vehicles as part of the transportation of illegal aliens. This Court finds the fact that Aldaco's vehicle was almost identical to one owned by a notorious alien smuggler is significant. Zamora did not stop Aldaco's vehicle based solely on the fact that it was a Suburban. The stop was executed because the two vehicles were almost indistinguishable. Although the license plate check did not prove that the vehicle belonged to the alien smuggler, the common practice of switching plates adequately maintained the agents' suspicions.

Zamora testified that both agents observed bulky objects in the back of the Suburban and that they believed that these objects were people hiding...