U.S. v. Barron-Cabrera

• Decision Date: 21 July 1997
• Docket Number: BARRON-CABRER,D,No. 96-2060,96-2060
• Parties: 97 CJ C.A.R. 1247 UNITED STATES of America, Plaintiff-Appellee, v. Felixefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1454

119 F.3d 1454

97 CJ C.A.R. 1247

UNITED STATES of America, Plaintiff-Appellee, v. Felix BARRON-CABRERA, Defendant-Appellant.

No. 96-2060.

United States Court of Appeals Tenth Circuit.

Argued Jan. 15, 1997.

Decided July 21, 1997.

Michael W. Lilley, Las Cruces, NM, argued the cause, for Appellant.

Lauren A. Mickey, Assistant United States Attorney, Las Cruces, NM, argued the cause, for Appellee. John J. Kelly, United States Attorney, Las Cruces, NM, assisted on the brief.

Before PORFILIO, LOGAN, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

While driving a rented Ryder truck on a rural road about 45 miles north of the Mexican border, defendant-appellant Felix Barron-Cabrera was stopped by Border Patrol Officer Robert Glenn Garcia. Officer Garcia found 21 illegal aliens in the truck, including Barron-Cabrera. Barron-Cabrera moved to suppress the evidence obtained during the traffic stop, on the grounds that Officer Garcia lacked reasonable suspicion to make the stop. After the district court denied Barron-Cabrera's motion, Barron-Cabrera pled guilty to one count of transporting illegal aliens and aiding and abetting, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) (1994 & Supp.1997) and 18 U.S.C. § 2 (1994), reserving under Fed.R.Crim.P. 11(a)(2) his right to appeal the district court's denial of his motion to suppress. Barron-Cabrera now brings that appeal. Because we agree with the district court that, under the facts and circumstances of the case, the traffic stop was predicated on reasonable suspicion, we affirm.

BACKGROUND

On Wednesday, August 30, 1995, Felix Barron-Cabrera was driving north on New Mexico Highway 180, in a rented Ryder truck. The City of Deming, New Mexico (pop.15,000) was behind him, and Silver City was ahead. Except during morning and afternoon rush hours, when some workers commute between Deming and Silver City, Highway 180 is lightly traveled. There are no established Border Patrol checkpoints on Highway 180, which bypasses other north-south routes with established checkpoints. However, in April 1995, the Northern County Unit of the Deming Border Patrol station began daily patrols of Highway 180 north of Deming. Between April 1995 and October 1995, that Unit apprehended 30 "smuggling loads" carrying a total of 140 illegal aliens on Highway 180 north of Deming.

At about 2:45 p.m., Barron-Cabrera drove a Ryder truck past a marked Border Patrol vehicle (a white Chevy Suburban) which was being driven southbound by Officer Robert Glenn Garcia. Officer Carlos Roches was a passenger in the Border Patrol vehicle. At that time, Barron-Cabrera was driving north at about 55 mph, and Officer Garcia was driving south at 45 mph. Officer Garcia testified that he was suspicious of Ryder trucks because he knew that a Border Patrol unit operating out of Lordsburg, New Mexico had recently apprehended a rental truck filled with either illegal aliens or narcotics. He was especially suspicious of Ryder trucks, such as Barron-Cabrera's, which were neither towing nor driving in tandem with another vehicle. This was because, in Officer Garcia's life experience, "[n]ormally you would see a Ryder truck with the personally owned vehicle of the driver, say, in tow behind it, or there may be a husband and wife, a spouse, driving their personally owned vehicle behind it as they were moving to wherever they were going."

Officer Garcia testified that he was first able to observe Barron-Cabrera when the two vehicles were about 120 feet apart from each other. Garcia claimed that he and his partner Officer Roches then made the following observations as the cars drew closer: (1) Barron-Cabrera had a passenger in the cab of the truck; (2) Barron-Cabrera, the driver, looked at Garcia with a surprised look as the two vehicles passed; (3) Barron-Cabrera's eyes got wider after looking at the Border Patrol vehicle; (4) Barron-Cabrera then looked straight forward at the road, with both hands on the steering wheel in the 10:00 and 2:00 position; and (5) Barron-Cabrera's passenger also looked at the Border Patrol vehicle once, looked a second time, and then stared straight forward. At the speeds the two vehicles were moving, Officer Garcia would have had nine-elevenths of one second to make these observations, before the two vehicles passed each other.

Officer Garcia then pulled onto the southbound shoulder of the road, to maintain surveillance of the northbound Ryder truck in his side-view mirror. As soon as Officer Garcia pulled over, however, he saw the Ryder truck hit its brake lights. He then immediately turned his Border Patrol vehicle around, and began to "tail" Barron-Cabrera's Ryder truck as it proceeded north on Highway 180. Garcia testified that as he approached the Ryder truck from behind, he and Officer Roches could see in the Ryder truck's outside mirrors that Barron-Cabrera and his passenger were "keeping an eye" on the Border Patrol vehicle by moving their heads in jerky fashions to see into the outside mirrors. ¹

While the Border Patrol vehicle "tailed" the Ryder truck at close distance for about two miles, the Ryder truck slowed down from about 58 mph to about 45 mph (the speed limit was 55 mph). Officer Garcia also testified that, while tailing the Ryder Truck, he observed it touch both the shoulder of the road and the center line. However, he explicitly stated that he stopped the truck not for any traffic violation, but exclusively "[t]o ascertain whether or not they were illegal aliens."

After following the Ryder truck north on Highway 180 for about two miles, Officer Garcia pulled it over. Without Barron-Cabrera's consent, Garcia searched the truck. He found it to contain 21 illegal aliens, including Barron-Cabrera.

Barron-Cabrera was charged with two counts of transporting illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) (1994 & Supp.1997), and aiding and abetting in violation of 18 U.S.C. § 2 (1994). He then moved to suppress the evidence obtained in the search of the Ryder Truck on the grounds that Officer Garcia lacked reasonable suspicion to stop and search the truck. On November 2, 1995, after holding a brief hearing, the district court denied Barron-Cabrera's motion to suppress. ²

Pursuant to a negotiated plea agreement, Barron-Cabrera then pled guilty to count one (8 U.S.C. § 1324(a)(1)(A)(ii)), and was sentenced to four months in prison plus two years supervised release. With the approval of the court and the consent of the government, as permitted by Fed. R. Crim P. 11(a)(2), Barron-Cabrera conditioned his guilty plea on the right to appeal the district court's denial of his pretrial motion to suppress. Barron-Cabrera now appeals the denial of his motion to suppress. The district court exercised original jurisdiction over the present case pursuant to 18 U.S.C. § 3231 (1994). We exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291 (1994).

DISCUSSION

Barron-Cabrera claims that the district court erred in two respects. First, he claims that the district court erred in crediting Officer Garcia's account of Barron-Cabrera's actions between the time Officer Garcia first observed Barron-Cabrera's Ryder truck, and the time the truck was stopped. Barron-Cabrera argues that Officer Garcia simply could not have observed everything that he testified to having observed in such a short period of time. Second, Barron-Cabrera claims that whether or not Officer Garcia's testimony is credited, the totality of the circumstances did not give rise to reasonable suspicion for the traffic stop. We address these contentions in turn.

I.

The district court's determinations of reasonable suspicion and probable cause are reviewed de novo on appeal. Ornelas v. United States, --- U.S. ----, ----, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996). However, its "findings of historical fact" are reviewed only for "clear error," and due weight must be given to inferences drawn from these facts by trial judges and law enforcement officers. Id. Further, "[w]hen reviewing the denial of a motion to suppress evidence, we view the evidence in the light most favorable to the government and [to] the district court's findings." United States v. Anderson, 114 F.3d 1059, 1063 (10th Cir.1997).

In the present case, the district court credited Officer Garcia's testimony, and thereby found that the factual events at issue occurred as Officer Garcia described them. The court's finding in this regard is a "finding of historical fact" which we review only for "clear error."

In Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985), the Supreme Court specifically discussed the issue of when an appellate court must defer to a trial court's credibility determinations. According to the Anderson court,

When findings are based on determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference to the trial court's findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said. This is not to suggest that the trial judge may insulate his findings from review by denominating them credibility determinations, for factors other than demeanor and inflection go into the decisions whether or not to believe a witness. Documents or objective evidence may contradict the witness' story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it. Where such factors are present, the court of appeals may well find clear error even in a finding purportedly based on a credibility determination. But when a trial judge's finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can...