690 F.3d 376 (5th Cir. 2012), 09-30648, United States v. Rico-Soto

Docket Nº:09-30648.
Citation:690 F.3d 376
Opinion Judge:JERRY E. SMITH, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Francisco RICO-SOTO, Defendant-Appellant.
Attorney:Camille Ann Domingue, Asst. U.S. Atty. (argued), James Thomas McManus, Lafayette, LA, for Plaintiff-Appellee. Mark David Plaisance (argued), Thibodaux, LA, for Defendant-Appellant.
Judge Panel:Before SMITH, GARZA and SOUTHWICK, Circuit Judges.
Case Date:August 02, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 376

690 F.3d 376 (5th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,


Francisco RICO-SOTO, Defendant-Appellant.

No. 09-30648.

United States Court of Appeals, Fifth Circuit.

August 2, 2012

Page 377

Camille Ann Domingue, Asst. U.S. Atty. (argued), James Thomas McManus, Lafayette, LA, for Plaintiff-Appellee.

Mark David Plaisance (argued), Thibodaux, LA, for Defendant-Appellant.

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

Before SMITH, GARZA and SOUTHWICK, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Francisco Rico-Soto was convicted, after being arrested at a traffic stop, of harboring illegal aliens. He appeals the admission of evidence obtained from the warrantless stop, claiming lack of reasonable suspicion. We affirm.


U.S. Border Patrol Agent Harold Gill was patrolling Interstate 10 near Lake Charles, Louisiana, waiting at a spot where he could look into passing vehicles as they slowed at a curve. That morning,

Page 378

he watched a fifteen-passenger van with " Paisanos" on it drive by, and he remembered that the Paisanos company had recently started transporting illegal aliens. That " intel" came from reports in his and other Border Patrol sectors, where Paisanos vans were stopped at least three times in the past five months. At least one of those times, sixteen aliens were found in the van, and on at least one other occasion, there was evidence consistent with alien smuggling.

Gill had worked for the Border Patrol for 19 1/2 years, ten of which were in Lake Charles. Interstate 10 is a major travel route for smuggling illegal aliens to the Eastern Seaboard. From his experience, Gill knew that smugglers often used fifteen-passenger vans. He also was aware that vans that had already dropped off illegal aliens on the East Coast were usually passing westbound through his area of Interstate 10 between 9:00 a.m. and 12:00 p.m. on a return trip to the Mexican border. He knew that such vans usually carried a driver, a co-driver, and one or two illegal aliens who had to return to the point of origin for some reason.

Gill had several concerns with the van. First, he saw the passengers seated spaced out among the four rows instead of being grouped together. He followed the van for three miles, during which time he checked the license plates and found that the van was registered not to the transportation company but to a woman named " Daisy Cruz" with a Houston address. In Gill's experience, most vans used to transport illegal aliens are registered to unaffiliated women rather than to the company itself. Still, during the entire time he followed the van, Gill did not see Rico-Soto, the driver, commit any traffic violation.

Determining that the van was likely returning from dropping off illegal aliens, Gill signaled for it to pull over, and Rico-Soto immediately complied. Gill asked for the passengers' immigration documents, but they admitted that they had none. Rico-Soto produced a log of the passengers along with $7070 that he said was to be given to the transportation company after he deducted his pay.


Rico-Soto was charged with harboring aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (B)(i). He moved to suppress the evidence seized during the stop, arguing it violated the Fourth Amendment. The district court held an evidentiary hearing and denied the motion. After a jury trial, Rico-Soto was found guilty. On appeal, he challenges only the denial of his motion to suppress.


A law enforcement officer must have reasonable suspicion to justify warrantless investigatory stops of vehicles. United States v. Banuelos-Romero, 597 F.3d 763, 766 (5th Cir.2010). Several Supreme Court opinions guide our inquiry into whether a vehicle's seizure is " reasonable" under the Fourth Amendment: (1) " [T]he officer must be able to point to specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warrant that intrusion," Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); and (2) " [a]ny number of factors may be taken into account in deciding whether there is reasonable suspicion to stop a car in the border area. Officers may consider [the Brignoni-Ponce factors]." 1 We review a

Page 379

district court's determinations of reasonable suspicion de novo. United States v. Zavala, 541 F.3d 562, 574 (5th Cir.2008).

The government presented several different elements that, when combined, led Gill reasonably to suspect criminal activity. First, he was positioned on Interstate 10, a major corridor for alien-smuggling between hub cities such as Houston and the East Coast. In particular, smugglers are often traveling westbound through Gill's region in the mid-morning, returning from eastbound trips. Gill has pulled over vans transporting illegal aliens on this route multiple times. A road's reputation as a smuggling route helps support an agent's reasonable suspicion. See United States v. Aldaco, 168 F.3d 148, 151-52 (5th Cir.1999). Though these pieces of information provide only limited support for reasonable suspicion, the combination does show some factors Gill noticed that raise an experienced agent's suspicions in spite of the fact that tremendous amount of legitimate traffic uses Interstate 10 as well.

Various characteristics of the van and its passengers added to Gill's suspicion. The van was a fifteen-passenger model of the kind often used in transporting illegal immigrants. Moreover, it was registered not to a transportation company but to a woman with a Houston address. Vans used to transport illegal aliens are often registered to an individual woman rather than to the transportation company. The fact that this van was supposedly part of a company fleet, yet not registered to the company, understandably raised Gill's suspicions even further.

The quantity and arrangement of the passengers supported Gill's suspicion, although that factual detail provides little support on its own. First, when vans return from dropping off illegal aliens on the East Coast, they bring back a few aliens who could not pay or whom the company

Page 380

told to return. Gill noticed there were only a few passengers in the car— about the right number as would be expected for a return trip— and that they were seated in separate rows rather than clustered as people usually sit. That seating arrangement struck Gill as unusual, although without the other suspicious factors, it would be consistent with how strangers sit when using a commercial van service.

Finally, the strongest individual pieces of information come from the labeling on the van. Gill noticed the name " Paisanos" on the side; his agency's intel agent reported that Paisanos was a new player in...

To continue reading