U.S. v. Gonzalez
| Decision Date | 24 September 1999 |
| Docket Number | No. 98-50860,98-50860 |
| Citation | 190 F.3d 668 |
| Parties | (5th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BLASA GONZALEZ, Defendant-Appellant |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Western District of Texas
Before POLITZ, DeMOSS, and BENAVIDES, Circuit Judges.
Blasa Gonzalez was stopped on a rural Texas road near Marfa, Texas, and found to be transporting 64.5 pounds of marijuana. Gonzalez was subsequently charged with importing the marijuana, in violation of 21 U.S.C. 952(a) and 960 (a)(1), and with possessing the marijuana with intent to distribute, in violation of 21 U.S.C. 841(a)(1). Gonzalez filed a motion to suppress, arguing that the Terry stop leading to her arrest and the seizure of the marijuana was not supported by reasonable suspicion and that the search of her vehicle was not supported by probable cause. The district court received evidence in a hearing on the motion and entered a comprehensive order denying Gonzalez' motion to suppress. The jury returned a guilty verdict on the possession count only, and Gonzalez was sentenced to 27 months confinement. This appeal ensued.
Gonzalez does not challenge any aspect of her trial or sentence. Rather, Gonzalez appeals only the district court's denial of her motion to suppress. For the reasons that follow, we affirm.
In March 1998, Texas Border Patrol Agents Pigg and Baker were assigned to the Border Patrol station in Marfa, Texas. Marfa is located on Highway 67 between 65 and 70 miles north of the International Port of Entry at Presidio, Texas. The stretch of highway between the entry port at Presidio and Marfa does not intersect with other highways or frequently traveled roads. To the contrary, there are apparently only two roads leading off that stretch of road, both of which turn into gravel or dirt roads and also lead to the border. Aside from the port of entry at Presidio, there are no other official points of entry within 100 miles. There are, however, many shallow crossings of the Rio Grande River that are routinely used by aliens seeking to illegally enter the United States and by persons seeking to smuggle narcotics into the United States. As a result, Highway 67 is often used for transporting illegal aliens or smuggling narcotics. See United States v. Villalobos, 161 F.3d 285, 289 (5th Cir. 1998).
On March 5, 1998, Agents Pigg and Baker were assigned to monitor the traffic on Highway 67. The agents began their shift at 6:00 a.m., positioning their marked border patrol car on Highway 67 about one mile south of Marfa and three miles north of a closed border patrol checkpoint. See Villalobos, 161 F.3d at 285.
Both agents had significant experience in the area and were familiar with the relatively few vehicles that commonly traveled their stretch of Highway 67 in the morning. Agent Pigg testified that the normal traffic consisted mainly of farm workers traveling to local tomato farms and ranchers driving their children to school. The agents were also in possession of at least two BOLO ("be on the lookout") reports. One BOLO told the agents to be on the lookout for an individual named Jeremy Sambugard. The BOLO stated that Sambugard was from Illinois, might be driving a Honda Accord, and was suspected of being "involved in the smuggling of contraband from Mexico to the U.S." The BOLO instructed the agents to inspect the vehicle for contraband if it was spotted. The second BOLO advised agents to be on the lookout for a Honda Accord with Illinois plates marked C75S473, registered to Sambugard. The second BOLO also informed agents that the license plate may have been changed. Both BOLOS were issued by Special Customs Agent Steve Coker and were based on information received from a confidential informant almost two months before, in January 1998.
Shortly before 7:00 a.m., the agents observed a maroon Honda Accord with Illinois plates proceeding northbound on Highway 67. Neither agent recognized the vehicle as being one routinely seen in the area. Agent Pigg recalled the BOLO for a vehicle with Illinois plates. As the two agents began following the Honda, Agent Pigg confirmed that there was a BOLO for a Honda Accord with Illinois plates. The license plate number of the maroon Honda was C752473, only one digit different than C75S473, the number reported in the BOLO. While following Gonzalez, the agents ran the license plate and learned that the Honda was registered under the name Jeremy Sambugard, the same name listed in the BOLO report. The agents followed the Honda to a location about one mile north of Marfa, where they pulled Gonzalez over using their emergency lights. Gonzalez told Agent Baker that she was a United States citizen driving her boyfriend's car to Dallas. The agents ran Gonzalez' driver's license and determined that it had been suspended. Agent Baker asked Gonzalez whether she would consent to a canine inspection of the vehicle, and she gave her consent. Agent Baker then radioed for a canine unit.
The drug dog alerted to the presence of narcotics in the back seat near the trunk. Border Patrol Agent Bates, the dog handler, testified that he and Agent Pigg observed distinctive orange spots on the back seat where the drug dog alerted, on the dashboard, and in the trunk, which in his experience indicated the use of a silicone sealant. Agent Pigg then released the back seat hatch, which revealed that the trunk area was higher than it should have been and that the trunk contained a trap door. Beneath that trap door, agents recovered the 64.5 pounds of marijuana. Gonzalez was arrested and taken to the Marfa Border Patrol station where she was interviewed by Customs Special Agent Steve Coker.
The district court's fact findings on a motion to suppress are reviewed for clear error only, while the district court's legal conclusions, including whether there was reasonable suspicion for the stop, are reviewed de novo. Villalobos, 161 F.3d at 288. "We have long pitched the standard of review for a motion to suppress based on live testimony at a suppression hearing at a high level." United States v. Randall, 887 F.2d 1262, 1265 (5th Cir. 1989). The evidence introduced at the suppression hearing is viewed in the light most favorable to the government, as the prevailing party. Villalobos, 161 F.3d at 288. Moreover, the district court's denial of the motion to suppress "should be upheld `if there is any reasonable view of the evidence to support it.'" United States v. Tellez, 11 F.3d 530, 532 (5th Cir. 1993) (quoting United States v. Register, 931 F.2d 308, 312 (5th Cir. 1991)).
Border Patrol agents on roving patrol may stop a vehicle when they are aware of specific articulable facts that, together with the rationale inferences that may be drawn from those facts, reasonably warrant suspicion that the particular vehicle is involved in illegal activities. See United States v. Brignoni-Ponce, 95 S. Ct. 2574, 2582 (1975); Villalobos, 161 F.3d at 288. Reasonable suspicion requires more than merely an unparticularized hunch, but considerably less than proof of wrongdoing by a preponderance of the evidence. See United States v. Sokolow, 109 S. Ct. 1581, 1585 (1989). The validity of a stop depends upon the totality of the circumstances known to the agents making the stop. Id. Factors that may be considered include, inter alia: (1) the characteristics of the area in which the vehicle is encountered; (2) the proximity to the border; (3) the usual patterns of traffic on the particular road; (4) the agents' previous experience with traffic in the area; (5) information about recent border crossings in the area; (6) the driver's behavior; and (7) the appearance of the vehicle. See Brignoni-Ponce, 95 S. Ct. at 2582; Villalobos, 161 F.3d at 288.
The district court held that the agents had reasonable suspicion based upon: (1) the time of day and location of the stop; (2) the nearly exact match between the Gonzalez' car and the car described in the BOLO; and (3) the agents' collective experience with traffic in the area of the stop. We agree. The Court has previously recognized that the stretch of Highway 67 between Presidio and Marfa...
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