258 F.3d 423 (5th Cir. 2001), 00-50757, United States v Jacquinot

Docket Nº:00-50757
Citation:258 F.3d 423
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL BRETT JACQUINOT, Defendant-Appellant.
Case Date:July 17, 2001
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 423

258 F.3d 423 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

MICHAEL BRETT JACQUINOT, Defendant-Appellant.

No. 00-50757

IN THE UNITED STATES COURT OF Appeals, FOR THE FIFTH CIRCUIT

July 17, 2001

Page 424

[Copyrighted Material Omitted]

Page 425

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

Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.

PER CURIAM:

Michael Brett Jacquinot appeals his conditional guilty plea conviction and sentence for possession with intent to distribute marijuana. He argues that the district court erred by: (1) denying his motion to suppress the evidence obtained from a roving border patrol stop of the truck in which he was a passenger and (2) applying U.S.S.G. § 2D1.1(b)(1) to increase his base offense level for possession of a firearm. We affirm.

I. FACTS

Michael Brett Jacquinot was indicted for possession with the intent to distribute between 100 and 1,000 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1). Jacquinot moved to suppress the evidence obtained as the result of the stop of a vehicle in which he was riding, asserting that the border patrol agents did not have reasonable suspicion to stop the vehicle.

An evidentiary hearing was held on Jacquinot's motion. Border Patrol Agent Andrew P. Graham, a three-year veteran of the Border Patrol, testified that he and eleven-year veteran Border Patrol Agent Jay Snodgrass were stationed in Alpine, Texas, and were assigned to patrol a 140-mile area of the United States/Mexican border, including the Big Bend National Park. While Graham's patrol experience was all in the Alpine, Texas, area, Snodgrass had transferred to Alpine a few months earlier, having previously served at the Marfa Sector Area Operations Center and the Laredo, Texas, border area. During his tenure with the Border Patrol, Graham had been involved with at least 30 narcotics cases and 15 to 20 alien smuggling cases.

Texas Highway 385 is notorious for smuggling, and in the prior six months, Agent Graham had noticed an increase in alien and smuggling apprehensions on that highway. Agent Graham attributed this increase in activity on Highway 385 to the Border Patrol's enhanced enforcement on other nearby highways.

In the early morning hours of Sunday, January 16, 2000, Agents Graham and Snodgrass were parked on Highway 385, approximately 75 miles north of the United States/Mexican border. At 5:45 a.m., the agents were notified by Marfa Sector Communications that vehicle sensors located inside Big Bend National Park and well within 50 miles of the United States/Mexican border had indicated two northbound vehicles traveling from within the park. The area in which the sensors are located is very remote and is intersected only by ranch roads. The fact that two vehicles activated the sensors at approximately the same time made Graham suspicious that one may be a lead car and the other a load car carrying contraband. Subsequent vehicle sensors were triggered, indicating to Agent Graham that the two vehicles that had triggered the first sensor were continuing toward their location.

At approximately 6:45 a.m., Agent Graham observed two vehicles pass by his location. Agent Graham believed that these were the vehicles that had activated the first sensor within the park, and he and Agent Snodgrass began to follow them in separate marked Border Patrol vehicles. The first vehicle that had passed the agents' location was a late model four-door sedan carrying an older Anglo couple and bearing a park registration receipt taped

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to the windshield and a Mississippi license plate. The vehicle appeared typical of the tourist traffic coming out of the park. Agent Graham got directly behind the vehicle to check its registration, and the vehicle continued to drive normally. Agent Graham concluded that the first vehicle was probably not involved in any illegal activity.

The second vehicle was a large white Ford pickup truck with a lot of equipment in its bed; it appeared to be a work truck and did not have a park sticker on its windshield. Agent Graham was able to see only that the driver was a small-framed person wearing a baseball cap. Agent Graham was surprised to see a work truck coming out of the park on a Sunday morning before six o'clock. He normally saw construction vehicles leaving the park in groups at the end of the work day or on Friday evenings at the end of the work week. The truck bore a Kansas license plate, which made Agent Graham suspicious because the park typically hires contractors from the local area. Additionally, Agent Graham was aware of a recent narcotics smuggling operation in the Alpine area destined for locations in Kansas.

Agent Graham got to within two car lengths of the truck to read the registration and then followed the truck from ten car lengths. Agents Graham and Snodgrass continued to follow the truck while they awaited registration information on it. The truck slowed to fifteen miles per hour below the average speed limit. Typically, Agent Graham does not see vehicles dramatically change their speed unless the vehicle was not traveling the speed limit before being followed by an agent.

The agents were unable to obtain the registration information because of computer-system problems, but they continued to follow the truck. As the truck approached Marathon, Texas, it stopped at a stop sign, activated its left turn signal, and then remained stopped for five seconds before turning left onto Highway 90. Agent Graham found the truck's pause at the stop sign to be much longer than what he normally sees. Agent Graham also found the truck's left turn to be strange because most vehicles coming up Highway 385 would continue straight on that road toward Fort Stockton and Interstate 10. By turning left, the truck began traveling toward Alpine; however, the most direct and logical route of travel from Big Bend to Alpine is Highway 118. In Agent Graham's experience, most visitors to such a remote area with limited gas stations have a map and know which roads to take.

The truck then drove through Marathon at 20 miles per hour. There was a school zone sign limiting speeds to 20 miles per hour when the sign was flashing, but the sign was not flashing, it was a Sunday morning, and there were no pedestrians, children, or other vehicles on the street. Agent Graham felt that the truck was trying to avoid being pulled over. Agent Graham confirmed Agent Snodgrass' prior observation that the truck was carrying tool boxes, a spare gas tank, and an air tank. After following the truck for a total of approximately fifteen minutes, Graham determined that it was more likely than not that the truck was involved in illegal activity. His determination was based on: the unusual hour that this apparently non-tourist work vehicle left the park; the truck's Kansas license plate, since he had personal experience with a smuggling organization transporting marijuana from the Big Bend area to Kansas; the absence of a park registration sticker on the vehicle, indicating that it had not been in the park for any length of time; the fact that the truck appeared to have transited the park from the west side to the east side, which was a tactic smugglers had recently

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been using to circumvent Border Patrol traffic or checkpoint operations; Highway 385's reputation for the smuggling of aliens and narcotics; and the driver's behavior when they were following the truck. Agent Graham stopped the truck 70 or 80 miles from the United States/Mexico border.

The district court denied Jacquinot's motion, determining that the agents' stop of the truck was justified by reasonable suspicion and did not violate the Fourth Amendment. Jacquinot entered a conditional plea of guilty, reserving his right to appeal the denial of his suppression motion. The presentence report ("PSR") applied a two-level adjustment to Jacquinot's base offense level for the possession of a dangerous weapon, as two unloaded handguns had been found in the truck. See U.S.S.G. § 2D1.1(b)(1). Jacquinot filed an objection to the adjustment, arguing that it was clearly improbable that the weapons had been connected to the drug offense. The district court overruled Jacquinot's objection to the two-level adjustment.

The district court sentenced Jacquinot to 46 months' imprisonment, three years' supervised release, a $2,500 fine, and a $100 special assessment. Jacquinot filed a timely notice of appeal.

II. ANALYSIS

a. Roving Border Patrol Stop

Jacquinot asserts that the district court erred in denying his motion to suppress the evidence obtained from the stop of the truck. He contends that the circumstances known to the border patrol agents did not give rise to a reasonable suspicion that the truck was involved in illegal activities.

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 there was reasonable suspicion for a stop, are reviewed de novo. United States v. Inocencio, 40 F.3d 716, 721 (5th Cir. 1994). A factual finding is not clearly erroneous as long as it is plausible in light of the record as a whole. United States v. Shipley, 963 F.2d 56, 58 (5th Cir. 1992). Further, "[t]he evidence presented at a pre-trial hearing on a motion to suppress is viewed in the light most favorable to the prevailing party." Inocencio, 40 F.3d at 721.

A border patrol agent conducting a roving patrol may make a temporary investigative stop of 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's occupant is engaged in criminal activity. See United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975); United States v. Cortez, 449 U.S. 411, 417-18 (1981). Factors that may be...

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