U.S. v. Cardona, 91-8281

• Decision Date: 05 March 1992
• Docket Number: No. 91-8281,91-8281
• Citation: 955 F.2d 976
• Parties: UNITED STATES of America Plaintiff-Appellee, v. Felix Julian CARDONA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 976

955 F.2d 976

UNITED STATES of America Plaintiff-Appellee, v. Felix Julian CARDONA, Defendant-Appellant.

No. 91-8281.

United States Court of Appeals, Fifth Circuit.

March 5, 1992.

Rehearing and Rehearing En Banc

Denied April 7, 1992.

Philip L. Lynch, Alfredo R. Villarreal, Asst. Federal Public Defenders, Lucien B. Campbell, Federal Public Defender, San Antonio, Tex., for defendant-appellant.

Mark R. Stelmach, Richard L. Durbin, Jr., LeRoy M. Jahn, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before REYNALDO G. GARZA, GARWOOD and DUHE, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

Felix Julian Cardona (Cardona) appeals his conditional plea of guilty to the offenses of conspiracy to possess more than 50 kilograms of marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846 and possession of more than 50 kilograms of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The condition of Cardona's plea rested on his belief that the district court erred in denying his motion to suppress evidence of the marijuana itself. For the reasons stated below, we AFFIRM the ruling of the district court.

I. The Facts.

A district court's purely factual findings are reviewed under the clearly erroneous standard. United States v. Lopez, 911 F.2d 1006, 1008 (5th Cir.1990) (citing United States v. Muniz-Ortega, 858 F.2d 258, 260 (5th Cir.1988)). The evidence presented at a pre-trial hearing on a motion to suppress is viewed in the light most favorable to the prevailing party. Id. (citing United States v. Reed, 882 F.2d 147, 149 (5th Cir.1989)). The conclusions of law derived from a district court's findings of fact, in this case the existence of a reasonable suspicion to stop the vehicle in which Cardona was a passenger, are reviewed de novo. United States v. Harrison, 918 F.2d 469, 473 (5th Cir.1990) (citing United States v. Basey, 816 F.2d 980, 988 (5th Cir.1987)). With these standards in mind, we turn to the facts of Cardona's case as adduced at the hearing on his motion to suppress.

On November 11, 1990, United States Border Patrol Agents Ferguson and Batero were sitting in their marked patrol vehicle at the intersection of Farm to Market Route (F.M.) 334 on F.M. 3199, approximately thirteen miles northeast of Bracketville, Texas. F.M. 3199 proceeds north from its intersection with F.M. 334 to a dead end. F.M. 334, a remote road used primarily by ranchers and hunters in trucks or jeeps, is the site of many of the Border Patrol's interceptions of vehicles transporting undocumented persons. The road is known to Border Patrol agents as a convenient route used by smugglers of undocumented persons for purposes of bypassing a permanent federal checkpoint on U.S. Highway 90 near Cline, Texas. Agent Ferguson testified he had personally made six stops on F.M. 334 and, in his approximately three and one-half years as an agent, had made over 50 stops of vehicles suspected of carrying undocumented persons or contraband. Law enforcement agents in general had made between 50 and 75 stops per year on F.M. 334.

On the evening of November 11, Ferguson and Batero had been watching traffic drive by their position on F.M. 334 for roughly three hours. Approximately 90% of this traffic was comprised of deer hunters in jeeps and trucks. At 8:00 P.M., a four-door passenger vehicle approached their position and the agents turned on their headlights to illuminate it. ¹ Although the automobile appeared to contain only two occupants, it rode considerably low to the ground. Ferguson and Batero decided to follow it.

As the agents followed the passenger vehicle, it slowed its speed considerably. The vehicle began to weave in the road, crossing the center line several times. This behavior, agent Ferguson testified, indicated the driver was aware he was being followed and was watching closely in his rearview mirror.

After the agents turned on their overhead lights, the agents observed a three square-inch decal over the place on the trunk of the vehicle where the lock to the trunk would normally be located. Ferguson and Batero had previously encountered decals located over trunk locks and knew such decals were often used to conceal the hole remaining after removal of the lock. The removal of trunk locks was known to the agents to facilitate the flow of air to a trunk when undocumented persons are smuggled therein or to prevent access to a trunk. Additionally, the agents knew that trunk lock removal was potentially indicative of a stolen vehicle.

The vehicle immediately pulled over. While agent Batero spoke with the vehicle's occupants, agent Ferguson was able to make radio contact ² and discovered the vehicle was registered to a woman, Dawn Burlick of Bronte, Texas. Agent Ferguson, familiar with the region, knew the vehicle could not have been returning to that area.

Agent Batero, identifying himself as an immigration officer, questioned the two occupants of the vehicle about their citizenship. The passenger, later identified as Cardona, stated both he and the driver were pleased they had not been stopped by the Texas Department of Public Safety. The driver, later identified as Arnulfo Ruiz-Gonzales (Ruiz-Gonzales), did not make eye contact with agent Batero and when Batero directly questioned him about his citizenship, Cardona answered in his stead. After Ruiz-Gonzales did not answer agent Batero's second direct inquiry into his citizenship, agent Batero asked the question in Spanish and Ruiz-Gonzales then responded he was an American citizen. Upon further questioning in Spanish by agent Batero, Ruiz-Gonzales stated he was the owner of the vehicle and that he had owned it for approximately one week. ³ Throughout this period of questioning by agent Batero, agent Ferguson testified Ruiz-Gonzales appeared very nervous while Cardona appeared "too relaxed". Further, Cardona referred continually to the agents as "boss", a reference which agent Ferguson testified indicated Cardona had spent time in a penitentiary. ⁴

After agent Batero observed a road map on the back seat of the vehicle and some Mexican coins strewn on the rear floorboard, he asked Ruiz-Gonzales if he would mind opening the trunk of the vehicle. Ruiz-Gonzales went to the front of the vehicle and opened the hood over the motor. When agent Batero restated that he wanted to look into the trunk, Ruiz-Gonzales walked to the rear of the vehicle. After the driver was nonresponsive to yet another request by agent Ferguson to open the trunk, agent Batero bent down and pulled the "flap" ⁵ of the decal partially back, looked inside, and detected the smell of marijuana. ⁶ The decal remained in place on the vehicle.

Agent Batero quietly related to agent Ferguson that he had detected the odor of marijuana whereupon agent Ferguson conducted a visual weapons sweep of the vehicle and as he opened the rear door, also smelled marijuana. Responding to agent Ferguson's request to look into the trunk, Ruiz-Gonzales replied the trunk was broken and he was unable to open it. When the agents asked if they could try to open the trunk, Ruiz-Gonzales said "[i]f you can". After agent Batero disengaged the trunk release in the glove compartment of the vehicle, the trunk opened easily revealing three duffel bags. Agent Ferguson smelled marijuana again and observed that one of the duffel bags was torn and marijuana residue was on the floorboard of the trunk. He also observed marijuana wrapped in cellophane inside the torn duffel bag. The trunk was later determined to contain 121 pounds of marijuana.

After Cardona and Ruiz-Gonzales were arrested and informed of their rights, Cardona asked for his jacket. Upon retrieval of the jacket, agent Batero found it contained a small bag of marijuana along with some rolling papers. ⁷ Agent Batero replaced the jacket, together with the marijuana found therein, in the stopped vehicle. Cardona remarked, after seeing the marijuana removed from the jacket, that the jacket belonged to Ruiz-Gonzales. Ruiz-Gonzales later confirmed this statement by requesting the return of his jacket, the only jacket in the vehicle.

II. The Law.

In his first point of error, Cardona contends the district court erred in concluding reasonable suspicion existed to justify pulling over the vehicle in which Cardona was a passenger. Because this case involves a roving Border Patrol stop, our analysis is guided by the principles enunciated by the United States Supreme Court in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). Under Brignoni-Ponce, a temporary investigative stop of a vehicle may be made by a roving patrol if the Border Patrol agents are aware of "specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion" that the vehicle is involved in illegal activities. Brignoni-Ponce, 422 U.S. at 884, 95 S.Ct. at 2582. "The totality of the circumstances, including the 'collective knowledge' of all officers," provides the sum of the factors to be considered by a court in assessing reasonable suspicion. Lopez, 911 F.2d at 1009 (quoting Muniz-Ortega, 858 F.2d at 260). Relevant factors include known characteristics of a particular area, previous experience of the arresting agents with criminal activity, proximity to the border, patterns of traffic, characteristics of the vehicle stopped, including its type and appearance, and finally the behavior of the driver of the vehicle. Brignoni-Ponce, 422 U.S. at 884-85, 95 S.Ct. at 2582. Although any single factor taken alone may be insufficient, under a "totality of the circumstances" analysis, the absence of a particular factor will not control a court's conclusions. Lopez, 911 F.2d at 1009 (citing United States v. Kohler, 836 F.2d 885, 888-89 (5th Cir.1988)).

As we read the record of...