U.S. v. Espinoza-Santill, P-96-CR-95.

CourtUnited States District Courts. 5th Circuit. Western District of Texas
Citation976 F.Supp. 561
Docket NumberNo. P-96-CR-95.,P-96-CR-95.
PartiesUNITED STATES of America, Plaintiff, v. Gabriela ESPINOZA-SANTILL, Defendant.
Decision Date17 April 1997
976 F.Supp. 561
UNITED STATES of America, Plaintiff,
Gabriela ESPINOZA-SANTILL, Defendant.
No. P-96-CR-95.
United States District Court, W.D. Texas, Pecos Division.
April 17, 1997.

Page 562

James K. Blankinship, Asst. U.S. Atty., Alpine, TX, for the Government.

Elizabeth Rogers, Asst. Fed. Public Defender, El Paso, TX, for Defendant.


FURGESON, District Judge.

Currently pending before the court is Defendant's Motion to Suppress Evidence. A hearing on the Motion was held in Pecos, Texas on March 12, 1997. Having considered the oral arguments, and the relevant case law, the court is the opinion that the Motion should be denied.


On the morning of December 9, 1996, Border Patrol Agent Ronald Garcia was traveling east in a marked Border Patrol vehicle on O'Reiley Street in Presidio, Texas. At the edge of town, O'Reiley Street turns into Farm-to-Market (FM) Road 170, which runs parallel to the Rio Grande in the direction of Big Bend National Park. Roughly in the center of town, U.S. Highway 67 begins its northeasterly trek towards Marfa, Alpine and Dallas. The southern tip of Highway 67 abuts O'Reiley Street. Traffic traveling east-west on O'Reiley Street must yield to traffic turning onto Highway 67 from either

Page 563

direction. As Agent Garcia approached the turn-off point, he noticed a 1982 Chevrolet van traveling towards him. The van slowed down, seemingly to permit Agent Garcia to make his left turn onto Highway 67, and then inexplicably sped up, nearly colliding with the Border Patrol vehicle.

Agent Garcia had to brake sharply in order to avoid a collision. The Chevrolet van proceeded west on O'Reiley Street. Not having recognized the van nor the driver, Agent Garcia decided to turn around and run a license plate check on the vehicle. At the time of the near collision, Agent Garcia was able to notice only that there were two occupants and that the driver was a Hispanic female. Agent Garcia began following the van west on O'Reiley and noticed that it had pulled into a closed gas station. It was around 6:50 in the morning and all of the gas stations in Presidio were closed. A license check of the vehicle revealed that it was registered to an individual in El Paso, Texas. As the Agent neared the parked van, the van abruptly left the gas station and began traveling east on O'Reiley towards the intersection of Highway 67. Agent Garcia likewise turned around and continued to follow the van. The van, indeed, turned north onto Highway 67 and Agent Garcia did likewise. Then something very peculiar happened. While the Agent had not turned on his lights to signal for the van to pull over, the van slowed down and began driving on the shoulder of the road. After about half a mile or so of such driving, Agent Garcia turned on his lights to signal for the van to pull over. The van did not immediately pull over, but continued to hug the shoulder for another one-half mile until it reached the parking lot of the Three Palms Motel, at which point it came to a complete stop.

Agent Garcia testified at the suppression hearing that his reason for deciding to pull the vehicle over was to check the citizenship status of its occupants. Several factors made the Agent suspect that the car's occupants may be in the country illegally, even though the vehicle bore Texas license plates. First, the Agent suspected that the occupants may be from out of town when they slowed down to make the turn onto Highway 67, overshot it, and then accelerated, oblivious to the yield sign directing traffic. Second, all local residents would know that gas stations in Presidio were closed at that time of the morning. Next, Agent Garcia became most suspicious when the van suddenly departed the gas station as soon as his Border Patrol vehicle came into clear view. Finally, Defendant's erratic driving behavior with a Border Patrol vehicle in tow, i.e. driving on the shoulder of the highway when the Agent had not signaled for the van to pull over, made the Agent suspect that something illegal was afoot.

Prior to the time the Chevrolet van came to a complete stop, Agent Garcia had radioed for assistance from the Sheriff's Department. A sheriff's deputy arrived at the Three Palms Motel almost immediately. After the van had stopped, Agent Garcia approached the driver's side window and asked the driver, Defendant in the case at hand, to produce documentation evidencing her right to be in the United States. Defendant produced a tattered naturalization certificate for herself, but could not produce one for her companion, whom the Defendant said was her 15 year old niece. The Agent found that representation to be somewhat suspicious, since the passenger looked much older than fifteen. In fact, the passenger turned out to be 21, and was not in any way related to the Defendant. After Agent Garcia had checked Defendant's naturalization certificate, the sheriff's deputy asked for her to provide a driver's license and proof of insurance. She had neither.

By this time, Agent Garcia had noticed that the van's tires and the lower portion of its body had fresh mud on them, a sign of an illegal river crossing. Agent Garcia testified that at various points along the border, the Rio Grande was so shallow that there were mud banks along which cars could pass from Mexico into the United States. The Agent, personally, had made numerous apprehensions of individuals who had made illegal crossings in just such a manner. When Defendant was asked about the fresh mud on the tires of her van, she volunteered that the van had crossed the Rio Grande sometime earlier that morning at a point 10-20 miles

Page 564

east of Presidio. She later changed her story and said that the van had crossed at a different point along the river. Agent Garcia testified that there are certain unmanned border crossings along the U.S.-Mexico border, and that individuals using those crossings are required to report to a Border Patrol station, such as the one in Presidio, to undergo customs and immigration checks. While that is the way things are supposed to work in theory, Agent Garcia conceded on cross-examination that that was not how things were usually done; that more times than not, individuals crossing at these unmanned border posts did not report to manned Border Patrol stations. The van Defendant was driving, however, had not crossed at an unmanned post, but had simply crossed the river at a low water spot.

Because Defendant had admitted to the Agent that the van had illegally crossed the river, a drug sniffing canine was called to the scene. The dog failed to alert to the presence of any narcotics. Nevertheless, the van was driven back to the Border Patrol station where another dog was called. This time the animal alerted to the presence of drugs and, sure enough, 212 packets of marijuana were discovered on board.

Defendant has moved to have evidence of the drugs suppressed, arguing that they were seized in violation of her Fourth Amendment rights. Defendant first argues that the initial stop was illegal because the Agent did not, in fact, have reasonable suspicion that something illegal was afoot. Alternatively, Defendant argues that if the initial stop was legal, the subsequent search exceeded the scope of the stop. In other words, argues the Defendant, that as soon as she produced her naturalization certificate, she should have been immediately released and not questioned further without having been read her Miranda rights. The government, on the other hand, argues that Agent Garcia did have reasonable suspicion to effectuate the stop. In the alternative, argues the government, the stop occurred at the border or at its functional equivalent. While the court finds that the stop occurred neither at the border nor at its functional equivalent, it nevertheless holds that, under the totality of the circumstances, Defendant's actions did give rise to a reasonable suspicion that Defendant was in the country illegally or was transporting illegal aliens. The court also finds that the Agent's post-stop inquiry did not exceed the scope of the stop and that there was probable cause to require that the van be brought to Border Patrol headquarters for a more thorough search, even after the first canine failed to alert to the presence of drugs.


A. Fourth Amendment Bars Only Unreasonable Searches

The Fourth Amendment to the United States Constitution provides in pertinent part that

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause....

The Fourth Amendment bars only unreasonable searches and seizures. See United States v. Pierre, 958 F.2d 1304, 1308 (5th Cir.1992); United States v. Brignoni-Ponce, 422 U.S. 873, 877, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607, 614 (1975) (holding that the Fourth Amendment applies to seizures that involve only a brief detention short of traditional arrest); Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). The reasonableness inquiry is driven by a balancing of "`the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion."' Pierre, 958 F.2d at 1308-09 (citing New York v. Class, 475 U.S. 106, 118, 106 S.Ct. 960, 968, 89 L.Ed.2d 81 (1986)); see also Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1983). However, the intrusiveness of the search is not measured so much by its scope as by whether it invades an expectation of privacy that society is prepared to recognize as "reasonable." Pierre, 958 F.2d at 1309 (citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967)). The exclusionary rule, as it has developed under


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