627 F.2d 1059 (10th Cir. 1980), 79-1607, United States v. Leyba

Docket Nº:79-1607.
Citation:627 F.2d 1059
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Joe Lucero LEYBA, Defendant-Appellant.
Case Date:August 15, 1980
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1059

627 F.2d 1059 (10th Cir. 1980)

UNITED STATES of America, Plaintiff-Appellee,

v.

Joe Lucero LEYBA, Defendant-Appellant.

No. 79-1607.

United States Court of Appeals, Tenth Circuit

August 15, 1980

Argued July 8, 1980.

Page 1060

Thomas S. Udall, Asst. U. S. Atty., Albuquerque, N. M. (R. E. Thompson, U. S. Atty., Albuquerque, N. M., with him on the brief), for plaintiff-appellee.

Tova Indritz, Asst. Federal Public Defender, Albuquerque, N. M., for defendant-appellant.

Before BARRETT, DOYLE and LOGAN, Circuit Judges.

BARRETT, Circuit Judge.

Joe Lucero Leyba (Leyba) was convicted, after trial to the Court, of knowingly transporting undocumented aliens in violation of

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8 U.S.C.A. § 1324(a)(2). Leyba appeals, alleging District Court error in its failure to suppress evidence obtained as a result of the stop of his automobile by agents of the United States Border Patrol. No challenge as to the sufficiency of the evidence underlying the conviction is raised.

Early in the morning of April 8, 1979, Border Patrol agents Oscar Martinez and Lawrence Nelson were preparing to set up a temporary traffic check point on U.S. Highway 180 north of Cliff, New Mexico. At approximately 2:55 a. m. a portable sensing device, located about two miles south of the proposed checkpoint, detected the presence of a northbound vehicle. Realizing that inadequate time remained to complete the checkpoint, the agents pulled their vehicle onto a side road and positioned it on a slight knoll, perpendicular to U.S. Highway 180. As the Leyba vehicle approached, the Border Patrol agents illuminated the passing automobile with their lights. The car, a silver and black 1977 Charger Daytona, contained three individuals in the front seat and several in the back. It appeared to be "riding fairly heavy on the road" and bore Arizona license plates. 1 Believing the car to possibly contain undocumented aliens, Martinez and Nelson followed the vehicle. During this interval, the agents observed that the rear windows of the car were fogged up and that the vehicle itself was intermittently drifting across the center line of the highway. Although the agents illuminated the Charger with their bright lights on at least one occasion, they were unable to distinguish passengers in the rear of the Leyba car. This left the agents with the impression that the passengers were "slouching down" to avoid detection. In fact, they were reclined in their seats sleeping.

Both Martinez and Nelson are experienced Border Patrol agents. Each has worked as an agent in southwestern New Mexico for more than five years. Martinez has worked similar checkpoints in the Cliff, New Mexico area one hundred times or more.

U.S. Highway 180 2 is considered a major artery for smuggling undocumented aliens from Mexico, northward. During the year prior to Leyba's arrest, 1,163 undocumented aliens were apprehended on Highway 180. Agent Martinez testified that the majority of alien trafficking on Highway 180 took place between 2:00 a. m. and 7:00 a. m. hours during which traffic at the point of the stop averaged only one or two cars during the entire period. 3 In contrast, the average daily traffic on Highway 180 from Silver City to the Route 78 turnoff was 1,031 vehicles per day in 1978. Just southeast of Cliff, New Mexico, there averaged 1,071 vehicles per day; at the town of Cliff on Highway 180 an average of 1,473 vehicles per day was observed, and just north of Cliff, New Mexico, traffic on Highway 180 averaged 878 vehicles per day. Of these vehicles, 14.1% were passenger cars with out-of-state license plates. Officer Martinez, based on past experience, estimated that fifty percent of the smugglers apprehended were driving vehicles bearing out-of-state plates.

With these observations in mind and based on their past experience, the agents stopped Leyba's vehicle. The stop occurred at approximately 3:00 a. m., two and one-half miles north of Buckhorn, New Mexico. An official of the New Mexico Highway Department testified that by the shortest route it is 116.2 miles by road from the United States-Mexico border to Cliff, New Mexico. The distance from Cliff to Buckhorn, according to official state highway maps, is eight miles. Thus, the stop occurred approximately 124.2 road miles north of the United States-Mexico border. The distance in air miles from the United

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States-Mexican border is between 90 and 100 miles.

Between the point of the stop and the closest point of the border at least two major towns exist Deming, New Mexico, population 8,343, and Silver City, New Mexico, population 7,751. In addition Highway 180 is transected by various roads including a major cross-country interstate highway Interstate 10. Highway 180 itself runs directly from El Paso, Texas to the Cliff-Buckhorn area and northward.

Following the stop, the agents questioned Leyba and his passengers about their citizenship and learned that four of the passengers had entered the United States without inspection, and met Leyba at a prearranged site north of Columbus, New Mexico. Leyba was arrested, and subsequently charged with four counts of knowingly transporting undocumented aliens in violation of 8 U.S.C.A. § 1324(a)(2). At trial, Leyba moved to suppress any testimony of or about the aliens under Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The District Court denied the motion, characterizing the issue as "very close" and "just barely . . . over the line of . . . sufficien(t) articulable facts." (R., Vol. III, p. 137). The testimony sought to be suppressed was admitted in evidence, and Leyba was convicted. 4

I.

A.

The Fourth Amendment to the United States Constitution is "implicated in this case because stopping an automobile and detaining its occupants constitute(s) a 'seizure' within the meaning of (that) Amendmen(t), even though the purpose of the stop is limited and the resulting detention quite brief." Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). Inasmuch as the Warrant Clause of the Fourth Amendment does not apply to such stops, however, we need only decide whether the conduct survives the prohibition of "unreasonable searches and seizures". Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968); United States v. Mendenhall, --- U.S. ----, ---- n. 2, 100 S.Ct. 1870, 1874, n. 2, 65 L.Ed.2d 497 (1980) (Powell, J., concurring). The reasonableness of such seizures, involving means less intensive than the traditional arrest, turns on a "balance between the public interest and the individual's rights to personal security free from arbitrary interference by law officers." Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977) (per curiam), quoting, United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975); United States v. Mendenhall, supra, (Powell, J., concurring). At a minimum, this requires that the stop "be based on specific, objective facts indicating that society's legitimate interests require the seizure . . ., or that the seizure (was) carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers." Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 558-562, 96 S.Ct. 3074, 3083-3085, 49 L.Ed.2d 1116 (1976). In considering these issues, "courts need not ignore the considerable expertise that law enforcement officials have gained from their special training and experience." United States v. Mendenhall, supra, (Powell, J., concurring); Brown v. Texas, supra, 443 U.S., at p. 52, n. 2, 99 S.Ct. at p. 2641, n. 2.

In the immigration field, agents on roving patrol, 5 as here, may properly consider the following factors in determining whether there exist "specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion

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that the vehicles contain aliens who may be...

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