U.S. v. Lamas, 78-5751

• Decision Date: 17 December 1979
• Docket Number: No. 78-5751,78-5751
• Citation: 608 F.2d 547
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan Antonio LAMAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 547

608 F.2d 547

UNITED STATES of America, Plaintiff-Appellee, v. Juan Antonio LAMAS, Defendant-Appellant.

No. 78-5751.

United States Court of Appeals Fifth Circuit.

Dec. 17, 1979.

Herbert E. Cooper, Asst. Fed. Public Defender, El Paso, Tex., for defendant-appellant.

LeRoy Morgan Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before WISDOM, HILL, and VANCE, Circuit Judges.

JAMES C. HILL, Circuit Judge.

This appeal is brought by Juan Antonio Lamas who, when stopped by a United States Border Patrol Agent, was found to be transporting four undocumented aliens in his automobile. Following a bench trial, Lamas was found guilty of violating 8 U.S.C.A. § 1324(a)(2) and sentenced accordingly. Without challenging the trial court's conclusion that he violated the law, Lamas appeals, asserting only that the agent who stopped his automobile and discovered the illegal aliens did so in violation of the Fourth Amendment. Our task at this juncture is to decide whether the facts known to the border patrol agent were sufficient to give rise to a reasonable suspicion that illegal activity was afoot.

I. The Facts.

Shortly after noon on September 29, 1978, United States Border Patrol Agent Rene Garza was stopped in his automobile at the intersection of a farm road and Highway 180 in New Mexico. This point is approximately 190 miles north of El Paso, Texas and the Mexican Border. Garza is an experienced border patrol agent who knew that Highway 180 was a major artery for transporting illegal aliens from Mexico to Colorado and that the surrounding area was not visited frequently by tourists.

As he waited to turn onto Highway 180, Garza spotted appellant's car approaching from the south. The car, a green and white 1966 Ford Galaxy with flashy mirrors, a hood ornament, hub caps, and "fuzzy balls" around the windows, did not, in Garza's opinion, look like the typical tourist's car. It appeared to be heavily loaded and had Colorado license plates. As the car passed, the occupants seemed to avoid eye contact with Garza, and the passengers in the back seat appeared to "slouch down" so as to avoid being seen. His suspicion aroused, Garza followed the car for approximately 3 miles and finally made the stop just north of Cliff, New Mexico. Garza's questioning of the occupants confirmed his suspicion that the four passengers were undocumented aliens.

We have little difficulty in accepting as a fact that Garza honestly believed the car to be carrying illegal aliens. Indeed, the conviction of appellant on four counts of violating 8 U.S.C.A. § 1324(a)(2) is evidence of the absolute correctness of his belief. If the reasonableness of a stop depended on the border patrol agent's subjective beliefs our inquiry would end here. The Fourth Amendment, however, requires us to test this stop in a different manner.

II. The Legal Standard.

Since the stop in this case was made by a roving border patrol, our decision is controlled by the principles articulated in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). There, the Court held that the Fourth Amendment permits roving border patrols to stop travelers for the limited purpose of questioning them about their citizenship only if the agent is "aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country." Id. at 884 95 S.Ct. at 2582. The Court went on to list several factors that the agent may consider in determining whether a stop is justified: (1) characteristics of the area in which the vehicle is encountered; (2) unusual patterns of traffic on the particular road; (3) proximity to the border; (4) information about recent illegal crossings in the area; (5) appearance of the vehicle; (6) number and appearance of passengers; (7) behavior of the driver; and (8) behavior of the passengers. Id. at 884-85, 95 S.Ct. 2574. No particular factor is controlling; "(e)ach case must turn on the totality of the particular circumstances." Id. at 885 n. 10, 95 S.Ct. at 2582. When deciding whether to stop a vehicle, the agent "is entitled to assess the facts in light of his experience in detecting illegal entry and smuggling." Id. at 885, 95 S.Ct. at 2582.

III. Applying the Standard.

In a number of recent decisions, this Court has stated that a vital element of the Brignoni-Ponce test is whether the agent had "reason to believe that the vehicle had come from the border." United States v. Ballard, 600 F.2d 1115, 1119 (5th Cir. 1979); United States v. Rivera, 595 F.2d 1095, 1098 n. 4 (5th Cir. 1979); United States v. Lopez, 564 F.2d 710, 712 (5th Cir. 1977); United States v. Escamilla, 560 F.2d 1229, 1231 (5th Cir. 1977); United States v. Woodward, 531 F.2d 741, 743 (5th Cir. 1976); United States v. Martinez, 526 F.2d 954, 955 (5th Cir. 1976); United States v. Del Bosque, 523 F.2d 1251, 1252 (5th Cir. 1975) (per curiam). We have found this element of the Brignoni-Ponce test missing where the stop occurred a substantial distance from the border. See United States v. Lopez, 564 F.2d 710, 712 (5th Cir. 1977) (55 miles from border); United States v. Escamilla, 560 F.2d 1229, 1230 (5th Cir. 1977) (70 miles from border); United States v. Martinez, 526 F.2d 954, 955 (5th Cir. 1976) (50 miles from border); United States v. Del Bosque, 523 F.2d 1251, 1252 (5th Cir. 1975) (per curiam) (60 miles from border). Here, appellant's car was first spotted by Garza at a point approximately 190 miles from the border city of El Paso, Texas. Highway 180 runs directly from El Paso to Cliff and is intersected at numerous points by other heavily trafficked highways. Between El Paso and Cliff are several small towns and a few somewhat larger cities. Thus, it is just as likely as not that a car traveling north on Highway 180 in the vicinity of Cliff, New Mexico, regardless of its appearance, might have begun its journey north from a point other than the Mexican border. Although reason to believe that the vehicle had come from the border is a "vital" element, it "is not an essential element if other articulable facts 'reasonably warrant suspicion.' " United States v. Escamilla, 560 F.2d 1229, 1232 (5th Cir. 1977). We turn then to the other circumstances that prompted Agent Garza to stop appellant's car.

Garza testified that appellant's car did not look like the typical tourist's car, appeared to be heavily loaded, and had Colorado license plates. These observations were colored by Garza's knowledge that the area was not visited frequently by tourists and that 48% Of the cars in which illegal aliens had been found in the area had Colorado plates. Although under such circumstances we might hold that Garza could have reasonably suspected that the car was not carrying "typical tourists," it is too much to ask that we go one step further and conclude that this was enough to arouse a reasonable suspicion that the car was carrying illegal aliens. To hold otherwise would render suspect all citizens of the State of Colorado traveling the roads of New Mexico or Texas in other than late model cars.

Garza also testified that, as the car passed, the passengers in the back seat appeared to slouch down to avoid being seen. While this is certainly a suspicious reaction, on its own it is not sufficient to provide justification for the stop and does not add enough to Garza's other observations to allow us to condone the stop in this case.

The only other point that requires discussion is Garza's testimony that the occupants of the car avoided eye contact with him as they passed. We have stated often that, because of the precarious position travelers on our nation's highways would be placed in if avoiding eye contact with an officer could be considered a suspicious reaction, "(t)his particular factor cannot weigh in the balance in any way whatsoever." United States v. Escamilla, 560 F.2d 1229, 1233 (5th Cir. 1977); Accord, United States v. Lopez, 564 F.2d 710, 712 (5th Cir. 1977).

IV. Conclusion.

We have before us incriminating evidence obtained by an experienced border patrol agent whose instincts led him unerringly to uncover criminal activity. At the same time, we have before us an officer whose actions violated the United States Constitution. How does a court, unaided by Congress, deal with a situation where it has standing before it two violators of the law? Certainly, the maxim In pari delicto melior est condito defendantis ¹ does not provide an appropriate solution to such a problem. The answer then? We punish neither. It is not our duty to criticize this arrangement; upon finding this to be the law, we are bound to apply it. ² To do otherwise would require us judicially to erode the safeguards of the Fourth Amendment in order that Juan Antonio Lamas be punished for the crime there is no doubt he committed.

Since its creation in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), more than 60 years ago, the Exclusionary Rule has been criticized by jurists and commentators alike for what is deemed its inherent flaw: It requires us to...