U.S. v. Melendez-Gonzalez, MELENDEZ-GONZALEZ

• Citation: 727 F.2d 407
• Decision Date: 07 March 1984
• Docket Number: No. 83-1378,MELENDEZ-GONZALEZ,83-1378
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arnaldo, a/k/a Lebrado Mendoza-Martinez, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 407

727 F.2d 407

UNITED STATES of America, Plaintiff-Appellee, v. Arnaldo MELENDEZ-GONZALEZ, a/k/a Lebrado Mendoza-Martinez,

Defendant-Appellant.

No. 83-1378.

United States Court of Appeals, Fifth Circuit.

March 7, 1984.

Robert Ramos, Federal Public Defender, R. Clark Adams, Asst. Federal Public Defender, El Paso, Tex., for defendant-appellant.

Sidney Powell, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before BROWN, REAVLEY, and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

This appeal is by Arnaldo Melendez-Gonzalez, convicted after a bench trial of possession with intent to distribute marihuana in violation of 21 U.S.C. Sec. 841(a)(1). It poses the sole question whether the stop and search of his automobile violated the Fourth Amendment. After carefully reviewing the circumstances surrounding the stop, we conclude that the roving border patrol agents lacked sufficient cause to justify the warrantless stop. Since the stop was illegal, the court erred in failing to grant defendant's motion to suppress the contraband obtained as a result of the search. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We also find that the search itself was illegally conducted since the agents did not have probable cause to search the automobile.

FACTS

On February 6, 1983, Border Patrol Agent Horger and his partner, Agent Hamilton, were stationed in Marfa, Texas. They were working the midnight to eight shift on Highway 67 between Marfa and Presidio, a town on the Texas-Mexico border. Highway 67 extends from Presidio, through Shafter to Marfa. The agents were sitting in a patrol car, stationed in an office parking lot on the east side of Highway 67 on the outskirts of Marfa. Marfa is a town of 2500 residents, located sixty miles north of the border.

At approximately 4:57 a.m., the agents were alerted by activation signals on their radio indicating that traffic was crossing a sensor located on the highway approximately 25 miles south of Marfa. Two minutes after the first activation, the agents observed a second hit on the sensor. Twenty or twenty-five minutes later, the agents observed two vehicles enter Marfa, driving only 50 yards apart. The first vehicle was a white pickup truck occupied by one person; the second vehicle was a silver automobile occupied by two persons. The automobile appeared to the agents to be "heavily loaded". The pickup truck stopped in the parking lot of a convenience store, but the silver automobile proceeded on to the intersection of Highway 67 and Highway 90. At this point, the agents switched on their red emergency lights and pursued the automobile without investigating the pickup. ¹

Agent Horger stopped the automobile, identified himself as a Border Patrol Agent, and asked the driver for identification. The driver produced a driver's license in the name of Labrado Mendoza and claimed that he was that person. The agents later discovered that the driver's real name was Arnaldo Melendez. Hereinafter, we will refer to the driver as Melendez and not Mendoza. Melendez also claimed United States citizenship and that he was coming from Presidio. The passenger, however, was more evasive. When questioned about his citizenship, the passenger claimed that he didn't speak English but that he had been living in Lovington, New Mexico, for the last ten years. When Agent Horger persisted in questioning the passenger about his nationality, he finally stated that he was born in Colorado City, Texas, but he could not offer proof of United States citizenship. At this point, Agent Horger suspected that the passenger was an illegal alien. Based on this suspicion, as well as on their earlier observations, the agents decided to investigate the trunk of the car more carefully. ²

Upon examination, the agents noticed a small hole in the trunk, a little smaller than a dime, which apparently had been used to mount a CB radio antenna at one time. With the aid of a flashlight, the agents peered into the hole and detected a burlap covered object inside. The agents then asked Melendez to open the trunk, but he refused, stating that he did not have a key. At this point, without requesting consent, Agent Horger and his partner partially sprung the lid of the trunk with a tire tool in order to get a better look at the contents. Once the trunk was sprung, the agents could see a large burlap sack inside and could smell the odor of marihuana.

The agents took Melendez and his passenger to the station and gave both men Miranda warnings. At that time, while he was in custody, Melendez agreed to allow the agents to search the car, and he signed a consent form to this effect. Melendez claimed that he did not own the car and that he was not familiar with its contents. The agents pried open the trunk and found twenty-one pounds of marihuana. DEA agents ultimately found the trunk key taped under the dash board of the car and learned that Melendez had purchased the automobile a few months earlier in Mexico.

Melendez waived his right to a trial by jury and was convicted by the court of possession with intent to distribute marihuana in violation of 21 U.S.C. Sec. 841(a)(1). Prior to trial, defendant moved to suppress all evidence obtained as a result of the stop and subsequent search of his car, alleging that the stop and search were illegal. The trial court denied the motion, finding that the initial stop was justified by the agents' reasonable suspicion that the car contained aliens illegally entering the country and that the subsequent search of the automobile was justified by probable cause. Alternatively, the court found that the defendant voluntarily signed a "consent to search" form and that such consent vitiated the earlier allegedly illegal stop and search. We reverse, finding that neither the stop nor the search were justified. Further, any consent signed by the defendant came too late to vitiate the illegality, since by the time the consent form was signed, the illegal stop and search had already been conducted.

I. The Stop

Since this case involves the stop and search of an automobile by a roving border patrol, our decision is controlled by the principles announced by the Supreme Court in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). In Brignoni-Ponce, 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; see also United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

Several objective factors may be taken into account by the border patrol agent in determining whether a stop would be justified by "reasonable suspicion." These factors include: (1) characteristics of the area in which the vehicle is encountered; (2) proximity to the border; (3) usual patterns of traffic on the road; (4) previous experience with alien traffic; (5) information about recent illegal crossings in the area; (6) behavior of the driver; (7) appearance of the vehicle; and (8) number, appearance and behavior of the passengers. United States v. Brignoni-Ponce, supra, 422 U.S. at 885, 95 S.Ct. at 2582. Reasonable suspicion is not limited to any or all of these factors. Instead, "[e]ach case must turn on the totality of the particular circumstances," and "the officer is entitled to assess the facts in light of his experience in detecting illegal entry and smuggling." Ibid.

When someone has "definitely and positively entered this country from abroad" a stop is automatically justified. United States v. Lopez, 564 F.2d 710, 712 (5th Cir.1977). Thus, agents need not show probable cause or even reasonable suspicion in order to justify a stop and search at the border or its functional equivalent. See Almeida-Sanchez v. United States, 413 U.S. 266, 272-73, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973). When a person is traveling within our country, however, we are more hesitant to allow interference, even if the vehicle is close to the border. For this reason, this Court has repeatedly emphasized that one of the vital elements in the Brignoni-Ponce reasonable suspicion test is whether the agents had reason to believe that the vehicle in question recently crossed the border. See, e.g., United States v. Pena-Cantu, 639 F.2d 1228, 1229 (5th Cir.1981); United States v. Pacheco, 617 F.2d 84, 86 (5th Cir.1980); United States v. Lamas, 608 F.2d 547, 549 (5th Cir.1979). When the stop occurs a substantial distance from the border, we have found this element missing. United States v. Lamas, supra at 549; (190 miles from border); United States v. Escamilla, 560 F.2d 1229, 1232 (5th Cir.1977) (70 miles from border).

In the present case, the border patrol stopped appellant's automobile some sixty miles from the Mexican border. While Highway 67 extends from the border, it goes through Presidio, Texas, a town with a population of 1100-1200, and Shafter, with a population of 700-800, before reaching Marfa. It was possible, of course, that appellant had begun his trip south of the border. But it was also possible that appellant had begun his trip north of the border in Presidio or in Shafter. Agent Horger had no independent reason to believe that the former was more likely than the latter. If a vehicle is already past towns in this country, the mere fact that it is proceeding on a public highway leading from the border is not sufficient cause to believe the vehicle came from the border.

Even if the agents did not have sufficient information reasonably to suspect that defendant came from the border, however, Brignoni-Ponce may still be satisfied if other articulable...