U.S. v. Escamilla, 76-3658

• Decision Date: 14 October 1977
• Docket Number: No. 76-3658,76-3658
• Citation: 560 F.2d 1229
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Valentin ESCAMILLA and Cosme Sanes Escamilla, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1229

560 F.2d 1229

UNITED STATES of America, Plaintiff-Appellee, v. Valentin ESCAMILLA and Cosme Sanes Escamilla, Defendants-Appellants.

No. 76-3658.

United States Court of Appeals, Fifth Circuit.

Oct. 14, 1977.

L. Aron Pena, Edinburg, Tex., for defendants-appellants.

James R. Gough, Jr., U. S. Atty., Mary L. Sinderson, George A. Kelt, Jr., Asst. U. S. Attys., Houston, Tex., Rene J. Gonzalez, Asst. U. S. Atty., Laredo, Tex., for plaintiff-appellee.

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

Before TUTTLE, WISDOM and COLEMAN, Circuit Judges.

TUTTLE, Circuit Judge:

On May 4, 1976, Border Patrol Agents Ortiz and Casas were monitoring traffic at the intersection of Highways 16 and 359 near Hebbronville, Texas. Hebbronville is situated some 70 miles from the Mexican border via the most direct route. At approximately 9:30 a. m., the agents were alerted by "Chekar" signals that several vehicles were approaching the intersection on Highway 359, which originates at Laredo, Texas. The Chekar device was imbedded in Highway 359 some 12 miles west of Hebbronville. Agent Ortiz testified that the agents observed a 1968 Chevrolet truck, a Continental Trailways bus and a 1973 Hornet car approach the intersection. It was later determined that appellants Cosme Sanes Escamilla and Valentin Escamilla were driving the truck and automobile respectively. The truck made a left turn and proceeded north on Highway 16 toward Freer, Texas, and the car followed, after stopping for a red light at the intersection. The bus turned south on Highway 16.

Agents Ortiz and Casas testified that after viewing the sequence of events described above, they became suspicious of appellants' activities. They said their suspicions were grounded upon several factors. First, the truck had out-of-county license plates (Bexar County) and made a left turn on Highway 16 going toward Bexar County. Second, both the truck and the car were traveling close to a commercial bus. The agents were aware of reports that smugglers and transporters of illegal aliens travel close to busses in hopes of escaping detection, while the agents occupy themselves with the immigration check on the bus. Finally, as appellants proceeded through the intersection, neither "acknowledged the presence" of the agents' vehicle parked at the intersection, i. e. appellants stared straight ahead.

Their suspicions aroused, Agents Casas and Ortiz abandoned their original plan to conduct an immigration check on the bus and followed appellants. The agents immediately passed the car driven by Valentin Escamilla in order to obtain a better view of the truck. Again Valentin Escamilla did not look at the agents as they passed and immediately fell back some distance from the agents' vehicle. From their vantage point behind the truck, the agents observed that the truck was loaded with bales of hay, that the bales were "clumsily stacked" and that there were 4 gaps between some of the bales. From these factors, the agents suspected that the truck contained secret compartments, with gaps between the bales to provide air for illegal aliens. Although neither had observed aliens transported in this manner, both had "heard reports" of similar incidents. A decision was made to stop the truck for an immigration check.

While Agent Ortiz questioned Cosme Escamilla as to his citizenship, Agent Casas peered through some cracks in the side board of the truck, seeing what he thought to be burlap sacks. Agent Casas also detected a "strong odor" of marijuana emanating from the truck. Based on these observations, the agents searched the truck and discovered 2,844 pounds of marijuana underneath the bales of hay. ¹ After finding the marijuana, Agent Ortiz drove north on Highway 16, stopped the vehicle driven by Valentin Escamilla and placed him under arrest. Ortiz testified that he had thought the two vehicles were connected because, after turning north on Highway 16, the truck slowed down, enabling the car to negotiate the turn and catch up.

Following a jury trial in the United States District Court, Southern District of Texas, appellants were convicted of conspiracy to possess and possession with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 846. Prior to trial on the merits, appellants moved to suppress all evidence obtained by means of the allegedly unlawful search of their vehicle. The trial court, convinced that the evidence sufficed to meet the "reasonable suspicion" standard applicable to investigatory stops by roving border patrols, denied the motion. We reverse.

I. The Legal Standard

The decision in this case is controlled by the principles announced in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). In that case, the Court held that

"(e)xcept at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country."

Id. at 884, 95 S.Ct. at 2582. Although the Court catalogued several factors which may be taken into account in deciding whether reasonable suspicion exists, id. at 884-85, 95 S.Ct. 2574, it emphasized that "(e)ach case must turn on the totality of the particular circumstances." Id. at 885 n. 10, 95 S.Ct. at 2582.

Our Court has had numerous occasions to apply the Brignoni-Ponce standards. The vast majority of cases, however, involved such clearly suspicious circumstances that it is difficult to determine precisely where the line has been drawn. See, e. g., United States v. Payne, 555 F.2d 475, 477-78 (5th Cir. 1977) (vehicle on highway used to transport aliens had heavy-duty shocks, blacked-out rear windows and appeared heavily loaded); United States v. Barnard, 553 F.2d 389, 391-92 (5th Cir. 1977) (two cars, one appearing heavily loaded, both equipped with C.B. radios, in secluded border area using "lead car, load car" scheme); United States v. Macias, 546 F.2d 58, 62 (5th Cir. 1977) (vehicle executed "turn around" at fixed checkpoint near border); United States v. Canales, 527 F.2d 440, 441 (5th Cir. 1976) (per curiam) (agent observed six Mexican men carrying large sacks and weapon one mile from border; vehicle with six Mexican passengers subsequently emerged from the same location); United States v. Estrada, 526 F.2d 357, 358 (5th Cir. 1976) (per curiam) (vehicle attempted to evade officers after vehicle immediately in front stopped for citizenship check); United States v. Nunn, 525 F.2d 958, 959 (5th Cir. 1976) (anonymous tip that six aliens were in open bed of truck); United States v. Walker, 522 F.2d 194, 195 (5th Cir. 1975) (per curiam) (high-speed chase of three heavily-loaded vehicles); United States v. Lara, 517 F.2d 209, 210-11 (5th Cir. 1975) (heavily-loaded camper on gravel road, two miles from Rio Grande). Although this case must turn on the particular circumstances involved, it is worthwhile to note that the "suspicious" activities here do not approach the type of activities involved in the above cases.

II. Applying the Standard

On three separate occasions, this Court has stressed that a "vital" element of the Brignoni-Ponce test is whether the agents had "reason to believe that the vehicle (in question) had come from the border." See United States v. Woodard, 531 F.2d 741, 743 (5th Cir. 1976); United States v. Martinez, 526 F.2d 954, 955 (5th Cir. 1976); United States v. DelBosque, 523 F.2d 1251, 1252 (5th Cir. 1975) (per curiam). As an initial matter, we conclude that Agents Ortiz and Casas did not have reasonable grounds to believe appellants had come from the border. Appellants' vehicle was first detected on Highway 359 some 12 miles west of Hebbronville, Texas. By referring to the map printed as fn. 2 of the opinion of this Court in United States v. Shields, 534 F.2d 605 (5th Cir. 1976), it is clear that Highway 359 does run west from Hebbronville to Laredo and the Mexican border some 70 miles away. However, several small towns, including Aquilares, Oilton, Mirando City and Druval, are situated between the border and the location of the Chekar device. Also, at least three north-south highways intersect Highway 359 between those same coordinates. Considering these factors, it was pure speculation on the part of the agents to opine that appellants' journey originated at the border. To be sure, Agent Ortiz testified that he "assumed" appellants had come from Laredo and not from any point between Hebbronville and Laredo. One could "assume" appellants had come from Mexico City, but that would not be a reasonable inference to draw from the mere presence of appellants' vehicles on Highway 359. If the mere presence of a vehicle upon a public highway leading away from the border constitutes a sufficient "reason to believe" the vehicle in fact came from the border, an untold number of innocent travelers are daily subject to inclusion in this dangerous category.

In United States v. Martinez, 526 F.2d 954 (5th Cir. 1976), this Court en banc held that agents who, after receiving Chekar signals, stopped a vehicle traveling north on Road 1017 into Hebbronville acted illegally because "they had no reason to believe that the vehicle had come from the border or that (the driver) was violating any law." Hebbronville, by way of Road 1017 and Road 755, is 73 miles due north of the border city of Rio Grande City. Although Road 1017 does not itself go to the border, it joins 755 so that the road to Rio Grande is about as straight as the road to Laredo in this case. Thus, the proof here did not meet the "vital" test.

Although we have stated that having "reason to believe that the vehicle in question had come from the border" is a vital element of the Brignoni-Ponce test, it is not an essential element if other articulable facts "reasonably warrant...