U.S. v. Jones

• Decision Date: 31 July 1998
• Docket Number: No. 97-50629,97-50629
• Citation: 149 F.3d 364
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Allison Haskell JONES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 364

149 F.3d 364

UNITED STATES of America, Plaintiff-Appellee, v. Allison Haskell JONES, Defendant-Appellant.

No. 97-50629.

United States Court of Appeals, Fifth Circuit.

July 31, 1998.

Richard L. Durbin, Jr., Joseph H. Gay, Jr., Asst. U.S. Attys., San Antonio, TX, for Plaintiff-Appellee.

Stephen M. Orr, Hans Viktor Olavson, Austin, TX, for Defendant-Appellant.

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

Before HIGGINBOTHAM, PARKER and DENNIS, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

I.

FACTS & PROCEDURAL HISTORY

Allison Haskell Jones appeals his conviction for possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). Appellant was stopped by a border patrol agent on suspicion of smuggling aliens, while driving northbound on Texas state Highway 118 some eighty (80) miles north of the Texas-Mexico border. In the district court, Jones made a motion to suppress the evidence from the search, which was denied, whereupon Jones pleaded guilty, reserving his right to appeal.

The facts relevant to Jones's motion to suppress are these. On March 8, 1997, a little after 7:00 a.m., Jones was driving northbound on Highway 118 in a blue Toyota 4 Runner, ¹ about five miles south of Alpine, Texas, approximately four miles north of a fixed border checkpoint, and some eighty (80) miles north of the Texas-Mexico border. His lights were on, though it was after sunrise. United States Border Patrol Agent Luis Barrera was proceeding southbound on Highway 118 when he noticed Jones's oncoming vehicle. Barrera pulled onto the shoulder to observe Jones as he passed. Barrera noticed that the 4 Runner was covered in mud, which Barrera thought was fresh (not dry), even though Barrera was aware of no rainfall in the area in the previous several weeks. Barrera thought Jones looked like a tourist and did not recognize him from the area. Barrera also saw a blue tarpaulin draped over something in the rear cargo area of the 4 Runner.

Barrera decided to follow Jones. Barrera pulled in behind Jones at between fifty-five (55) and sixty-five (65) miles an hour. Barrera kept his cruiser within three car lengths of Jones and at one point got close enough to read the license plate, i.e., he was tail-gating Jones. ² A license check revealed that the vehicle was registered to one Allison Jones of Garland, Texas. Jones was continually glancing back at Barrera in the rear view mirror, and a couple of times let the 4 Runner slip off the pavement. Barrera noticed that the 4 Runner's right rear tail light was inoperative.

Barrera finally pulled Jones over and called his partner, Agent Scott Roddy, for back-up. When Agent Roddy arrived, Barrera approached the 4 Runner with a dog, which alerted to the vehicle immediately. Barrera asked Jones what his citizenship was and for him to produce his driver's license. Jones told Barrera that he was a United States citizen and handed Barrera his driver's license. Barrera could smell the odor of marijuana and deodorizer. Jones was visibly nervous. Agent Roddy asked Jones to exit the 4 Runner. Barrera put the dog inside the 4 Runner, where he alerted to contraband in the rear cargo area. Barrera looked through the rear side glass of the 4 Runner and saw flour or seed sacks. Barrera then raised the tarp and discovered 222.46 pounds of marijuana.

II.

LAW & ANALYSIS

A. Standard of Review

"A district court's purely factual findings are reviewed under the clearly erroneous standard. The evidence presented at a pre-trial hearing on a motion to suppress is viewed in the light most favorable to the prevailing party. The conclusions of law derived from a district court's findings of fact, such as whether a reasonable suspicion existed to stop a vehicle, are reviewed de novo." United States v. Inocencio, 40 F.3d 716, 721 (5th Cir.1994), citing United States v. Cardona, 955 F.2d 976, 977 (5th Cir.1992).

The question for this Court is whether, viewing the evidence in the light most favorable to the government, the district court erred by holding that Agent Barrera properly formed a reasonable suspicion of illegal activity upon observing a Toyota 4 Runner with its lights on at 7 a.m., covered in fresh mud, with an inoperative tail light and a blue tarp draped over something in the rear cargo area traveling northbound on Highway 118 (which comes from Big Bend National Park just on this side of the border), five miles south of Alpine, Texas, and approximately eighty (80) miles north of the Texas-Mexico border, driven by a middle-aged, tourist-looking, Caucasian male who had probably just come through the border checkpoint around shift change and who continually glanced back in his rear-view mirror when Agent Barrera decided to follow him? We conclude that the district court did err and therefore reverse Jones's conviction.

B. Roving Border Patrol Stops Under the Fourth Amendment

Warrantless investigatory stops by border patrol agents which are not conducted at the border or its functional equivalent are unconstitutional unless supported by a reasonable suspicion of illegal activity. Inocencio, supra at 722. "Any number of factors may be taken into account in deciding whether there is reasonable suspicion to stop a car in the border area." United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607 (1975). Those factors include: (1) the characteristics of the area in which a vehicle is encountered; (2) proximity to the border; (3) the usual patterns of traffic on the particular road; (4) previous experience with alien traffic; (5) information about recent illegal border crossings in the area; (6) the driver's behavior, e.g., erratic driving or obvious attempts to evade officers; (7) aspects of the vehicle itself, e.g., suitability of the design for concealment and transport of aliens; (8) appearance of the vehicle, e.g., appears heavily loaded; (9) vehicle has an extraordinary number of passengers; (10) persons in the vehicle are observed attempting to hide; (11) appearance of the driver or passengers, e.g., certain aspects of dress and haircut, may indicate that the driver or passenger is from Mexico. Brignoni-Ponce, 422 U.S. at 884-885, 95 S.Ct. at 2582 (citing cases). Also, "[t]his Court considers the fact that a vehicle may have recently crossed the border as a vital element in making an investigatory stop." Inocencio, 40 F.3d at 722, n. 6, citing United States v. Melendez-Gonzalez, 727 F.2d 407, 411 (5th Cir.1984). "Reasonable suspicion, however, is not limited to an analysis of any one factor." Id. at 722. Rather, a finding of reasonable suspicion must be based on the "totality of the circumstances known to the agent and the agent's experience in evaluating such circumstances", United States v. Casteneda, 951 F.2d 44, 47 (5th Cir.1992), and "[i]n all situations the [agent] is entitled to assess the facts in light of his experience in detecting illegal entry and smuggling." Brignoni-Ponce, 422 U.S. at 885, 95 S.Ct. at 2582, citing Terry v. Ohio 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968).

C. Proximity to the Border

In cases of investigatory stops based on suspicion of illegal alien smuggling, "we have at times focused our inquiry initially on the question of whether the arresting agents could reasonably conclude a particular vehicle originated its journey at the border." Cardona, 955 F.2d at 980. The further the stop is conducted from the border, the less likely it is that the vehicle originated its journey at the border. United States v. Melendez-Gonzalez, 727 F.2d 407, 411 (5th Cir.1984) ("When the stop occurs a substantial distance from the border, we have found this element missing"). Our cases reveal no bright line, yet a car traveling more than fifty (50) miles from the border is usually viewed as being too far from the border to support an inference that it originated its journey there. See Inocencio, 40 F.3d at 722 n. 6. Perhaps of more importance to this case, is the combination of distance from the border and the presence of several towns and a heavily traveled national park between the point where Jones was stopped and the border. See Melendez-Gonzalez, 727 F.2d at 411 (noting that, once a vehicle is a substantial distance from the border and there are towns between the location of the stop and the border, some independent reason must exist for the border patrol agent to conclude that the vehicle originated its journey at the border rather than at one of those towns).

This factor is totally missing from this case. Jones was too far from the border to support an inference that his journey originated at the border. Furthermore, on Highway 118, between the point where Barrera first observed Jones and the border, lies Big Bend National Park and the settlements of Study Butte and Terlingua. It was just as likely that Jones left before sunrise (hence the driving with his lights on) from one of those other locations on Highway 118 as it is that he started from the border. The only independent evidence which might arguably indicate that Jones was more likely to have started at the border is the presence of "fresh" mud on Jones' 4 Runner.

Viewing the evidence in the light most favorable to the government (the prevailing party) as we must, we accept the district court's finding that Jones's 4 Runner had a noticeable quantity of fresh mud on it. Moreover, this Court has no reason to doubt that Agent Barrera sincerely suspected that the mud on the 4 Runner came from a possible crossing of the Rio Grande, because he was aware of no rainfall in Brewster County in the previous two to three weeks. The question is whether it was reasonable for Agent Barrera to suspect that. We conclude that it was not.

There are far too many places between Alpine, Texas, and the Texas-Mexico border for a vehicle to pick up fresh mud virtually any time of the year. The testimony at the suppression hearing...