U.S. v. Bautista-Silva

• Decision Date: 11 May 2009
• Docket Number: No. 08-13803.,08-13803.
• Citation: 567 F.3d 1266
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Juan BAUTISTA-SILVA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

567 F.3d 1266

UNITED STATES of America, Plaintiff-Appellant, v. Juan BAUTISTA-SILVA, Defendant-Appellee.

No. 08-13803.

United States Court of Appeals, Eleventh Circuit.

May 11, 2009.

Peter J. Sholl, Tampa, FL, for U.S.

Craig L. Crawford and Donna Lee Elm, Fed. Pub. Defenders, Orlando, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before BARKETT, PRYOR and FARRIS,^* Circuit Judges.

PRYOR, Circuit Judge:

This appeal presents the question whether a veteran border patrol agent, while on patrol in a marked vehicle in a corridor known for human smuggling in South Florida, reasonably suspected that a sport-utility-vehicle with California license plates containing six adult males of apparently Hispanic descent was transporting illegal aliens when the driver changed speeds erratically on a slippery road and the passengers appeared nervous and refused to acknowledge the agent's attempts to gain their attention. The district court ruled that the agent lacked reasonable suspicion to stop the vehicle, which was driven by Juan Bautista-Silva, and the district court granted Bautista-Silva's motion to suppress all statements and physical evidence obtained as a result of the stop. We conclude that the agent's decision to stop the vehicle was based on specific and articulable facts that, viewed cumulatively and in the light of the agent's extensive experience, created a reasonable suspicion of illegal activity. We reverse and remand for further proceedings.

I. BACKGROUND

Our discussion of the background of this prosecution is divided in two parts. We first discuss the facts leading to the stop of Bautista-Silva's vehicle. We then discuss Bautista-Silva's motion to suppress all statements and physical evidence obtained as a result of the stop.

A. Facts Leading to the Stop of Bautista-Silva's Vehicle

Senior Agent Richard Cole testified that he joined the United States Border Patrol in 1992. From 1992 to 1998, Agent Cole was stationed in Nogales, Arizona, where he "was involved with many aspects of enforcing immigration nationality law." In 1998, Agent Cole transferred to Orlando, Florida, where he continued to assist with enforcing immigration law. Agent Cole has "monitored traffic for human smuggling operations" throughout his career and has performed countless investigative stops based on "reasonable suspicion for illegal aliens or alien smuggling."

On March 20, 2008, Agent Cole and Agent Sergio Perez were monitoring southbound traffic on Interstate 95 in Brevard County, Florida, as they had done throughout the previous three years, based on intelligence provided by the Border Patrol that illegal aliens used that interstate highway to travel to South Florida. The uniformed agents were in Agent Cole's official marked vehicle, and Agent Cole was in the driver's seat of the vehicle. The vehicle was parked at a rest stop in a "very wide, open area" that allowed the agents to observe, and be observed by, southbound traffic.

Around 11:00 a.m., Agent Cole saw a silver Chevrolet Suburban that contained Bautista-Silva and five passengers. As the Suburban approached the agents' location, it was "driving along with traffic," "more or less behind" a "pickup truck pulling a flat trailer with some objects in it." As the Suburban passed the agents it suddenly "seemed to get up alongside" the truck. Agent Cole observed that the Suburban had California license plates, the driver and passenger in the front of the vehicle were Hispanic adult males, and the other four passengers were also adult males. Agent Cole suspected that the Suburban contained illegal aliens and decided to pursue the Suburban to investigate.

After Agent Cole drove onto the highway, the Suburban increased its speed. As he attempted to "catch up" with the Suburban, Agent Cole observed that "it was traveling very fast because it was passing a lot of vehicles in the left lane." It took Agent Cole about "two or three minutes" to catch up with the Suburban, during which time he drove "in excess of 100 miles an hour." When Agent Cole first caught up with the Suburban, Agent Cole's vehicle was positioned behind the Suburban and both vehicles were traveling "about 90 miles an hour."

When Agent Cole "pulled up alongside" the Suburban "to get a better look," the Suburban "immediately slowed down very quickly." Agent Cole decelerated to maintain his position beside the Suburban, opened the passenger window of his vehicle, and tried to get the attention of the passengers of the Suburban. The passengers appeared nervous, did not acknowledge the agents, and "just continued to look straight ahead." Agent Cole then stopped the Suburban. Bautista-Silva and all five of the passengers admitted they were illegal aliens from Mexico, and the agents took all six men into custody.

B. Bautista-Silva's Motion To Suppress All Statements and Physical Evidence Obtained as a Result of the Stop

Bautista-Silva was charged with knowingly transporting five illegal aliens within the United States for private financial gain. 8 U.S.C. §§ 1324(a)(1)(A)(ii), (a)(1)(B)(i). Bautista-Silva moved to dismiss the indictment or, in the alternative to suppress all statements and physical evidence obtained as a result of the stop, on the ground that the agents lacked reasonable suspicion to stop his vehicle. The government responded that the agents had reasonable suspicion to stop the vehicle based on their experience, specific and articulable facts, and rational inferences drawn from those facts that the vehicle contained illegal aliens.

The district court held an evidentiary hearing, at which Agent Cole testified on behalf of the government, and Bautista-Silva presented the testimony of a defense investigator. Agent Cole testified that his decision to stop Bautista-Silva's vehicle was based on several factors that, in his experience, suggested the vehicle contained illegal aliens: (1) the Suburban was the kind of large vehicle often used by smugglers to transport illegal aliens; (2) the driver and all five passengers were Hispanic adult males; (3) the Suburban was registered in California, a known staging area for human smuggling; (4) the Suburban was traveling south on I-95, a route known to be used by smugglers to transport aliens to South Florida; (5) as it passed Agent Cole's parked patrol vehicle, the Suburban appeared to hide behind another vehicle in an attempt to avoid detection; (6) Bautista-Silva drove erratically on a slippery road after passing Agent Cole, when he first accelerated in an apparent attempt to evade the agents and decelerated immediately after Agent Cole caught up in an apparent attempt to let the agents pass; and (7) the passengers of the Suburban appeared nervous, stared straight ahead, and refused to acknowledge Agent Cole's attempt to gain their attention.

On cross-examination, Agent Cole testified that he was familiar with the Treasury Enforcement Communications System, a computer database of information about vehicles that cross the border of the United States, but he did not check that system for information about Bautista-Silva's vehicle. Agent Cole acknowledged that several of the factors on which he based his decision to stop Bautista-Silva's vehicle were susceptible of innocent explanation: (1) it was not unusual on that portion of I-95 to see large vehicles, vehicles with California license plates, or vehicles with multiple Hispanic passengers; (2) it was not unusual, in the morning, to "see people going to and from work with many males in the car"; and (3) I-95 is a "heavily traveled road[.]" Agent Cole also testified that nothing about the Suburban itself made the vehicle appear suspicious or overloaded.

The district court ruled that the agents lacked reasonable suspicion to stop Bautista-Silva's vehicle. The district court credited Agent Cole's testimony about the events but concluded that most of the factors on which Agent Cole based his decision to stop Bautista-Silva's vehicle were "too commonplace to support [reasonable suspicion] or to be given meaningful weight in a `totality of the circumstances' analysis." According to the district court, it was of "some relevance" that Bautista-Silva's vehicle was large, was traveling south on I-95, had California license plates, and contained passengers that appeared to be Hispanic, but the district court found that those facts were insufficient to justify the stop. The district court also found that it "would not be proper to assign much weight" to the type of vehicle that Bautista-Silva was driving because "agents are hardly unanimous in their belief that vehicles such as SUVs, trucks and vans are the vehicles of choice for those engaged in smuggling of aliens." The court weighed against the factors relied on by Agent Cole the lack of proximity of the Suburban to the Mexican border, the normal appearance of the Suburban, Agent Cole's failure to describe the passengers of the Suburban as "distinctively Mexican," and that "the agents were not aware of any other reasons to suspect this particular vehicle, such as an anonymous tip that it was transporting aliens or a report from other agents that it had recently been observed in an area known for illegal border crossings."

The district court concluded that "[t]he legality of the stop ... primarily rests on two factors: the behavior of the vehicle, and the behavior of its occupants." The district court concluded that neither of these factors could create a reasonable suspicion of illegal activity. The district court opined that "the driving behavior of the Suburban was not remarkable" because Agent Cole "was not certain that the Suburban was attempting to avoid his notice as it first approached him[.]" The district court also opined that Bautista-Silva's acceleration and deceleration were "not sufficiently different from the way others routinely drive on Interstate 95 to warrant suspicion." According to ...