U.S. v. Lopez-Martinez

• Decision Date: 03 June 1994
• Docket Number: D,LOPEZ-MARTINE,No. 93-2137,93-2137
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robertoefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1481

25 F.3d 1481

UNITED STATES of America, Plaintiff-Appellee, v. Roberto LOPEZ-MARTINEZ, Defendant-Appellant.

No. 93-2137.

United States Court of Appeals Tenth Circuit.

June 3, 1994.

Charles A. Harwood, Silver City, NM, for defendant-appellant.

Kelly H. Burnham, Asst. U.S. Atty., Las Cruces, NM (Larry Gomez, U.S. Atty., Albuquerque, NM, and Judith A. Patton, Asst. U.S. Atty., Las Cruces, NM, on the brief), for plaintiff-appellee.

Before EBEL and McKAY, Circuit Judges, and VAN BEBBER, District Judge. ¹

EBEL, Circuit Judge.

This direct criminal appeal returns us to a well-traveled road: the constitutionality of a roving border patrol stop on New Mexico's Highway 185. The Defendant-Appellant, Roberto Lopez-Martinez ("Lopez-Martinez"), appeals from the district court's denial of his suppression motion. Because we concur with the court's determination that the U.S. Border Patrol Agent demonstrated the requisite reasonable suspicion necessary under the Fourth Amendment to stop Lopez-Martinez's vehicle and to inquire about the citizenship of his passengers, we affirm.

I.

This case arose when U.S. Border Patrol Agent Dale Jones ("Agent Jones") stopped Lopez-Martinez's van in Radium Springs, New Mexico, and discovered four undocumented aliens riding in the vehicle. At 10:00 a.m. on June 20, 1992, while on routine patrol, Agent Jones observed a van and a sedan exit Interstate 25 from the northbound lanes at the Radium Springs exit--less than ten miles south of the Las Cruces immigration checkpoint on Interstate 25 and less than sixty miles from the United States-Mexico border. Travelling in close proximity to one another, the two vehicles turned west on Route 157 and headed toward Highway 185, a north-south thoroughfare that runs parallel to Interstate 25. This stretch of Highway 185 is considered a notorious route by which to circumvent the Interstate 25 checkpoint north of Las Cruces.

Agent Jones initially noticed the two vehicles while he was driving east on Route 157. He promptly turned west, in the direction of the vehicles, and drove his unmarked border patrol vehicle between the van and the sedan. When Agent Jones passed the sedan, he noticed four Hispanic male passengers. Agent Jones also noted that the two vehicles' license plates indicated that the vehicles were registered in Northern New Mexico. In addition, after Agent Jones passed the sedan in order to drive between the two vehicles, the sedan dropped back approximately 100 yards. Agent Jones followed the van as it turned north on Highway 185; the sedan followed behind.

Given the close proximity in which the two vehicles had been travelling despite the absence of traffic, Agent Jones surmised that the van and the sedan were travelling in tandem. He grew more suspicious of their enterprise when he noted that both vehicles drove 30 miles per hour along Highway 185 in a 55 mile per hour zone. Next, Agent Jones watched as a passenger in the van peered through the van's back window, stared at Agent Jones for roughly twenty to thirty seconds, and then "sank back out of sight." Although Agent Jones drove in an unmarked vehicle, the vehicle contained a visible security cage separating the front and back seats and Agent Jones wore a uniform. Agent Jones conducted a registration check on the van based on the license plate numbers, but discovered nothing extraordinary.

His suspicion nevertheless aroused by the surrounding circumstances, Agent Jones stopped the van on Highway 185, just north of Radium Springs. Agent Jones discovered Lopez-Martinez driving the van and verified his United States citizenship. As the sedan drove past the scene, Agent Jones asked Lopez-Martinez whether he was travelling with the other vehicle, to which Lopez-Martinez replied: "No we are not together. He is going to Albuquerque." Agent Jones promptly discovered four undocumented aliens in Lopez-Martinez's van.

On July 30, 1992, Lopez-Martinez filed a motion to suppress the evidence gathered at the stop along Highway 185, contending that Agent Jones lacked reasonable suspicion to conduct the roving border patrol stop. After the court issued extensive factual findings and denied his suppression motion, Lopez-Martinez entered a conditional guilty plea to a two-count indictment charging him with transporting illegal aliens, in violation of 8 U.S.C. Sec. 1324(a)(1)(B) ²; and aiding and abetting, in violation of 18 U.S.C. Sec. 2. Before us is Lopez-Martinez's timely appeal of the court's denial of his suppression motion.

II.

In reviewing the court's denial of a motion to suppress evidence, "we must accept the court's factual findings unless they are clearly erroneous and must consider the evidence in the light most favorable to the government." United States v. Maestas, 2 F.3d 1485, 1490 (10th Cir.1993). "The ultimate determination of reasonableness under the fourth amendment is, however, a conclusion of law that we review de novo." United States v. Guillen-Cazares, 989 F.2d 380, 382 (10th Cir.1993). Insofar as Lopez-Martinez does not dispute the court's factual findings, we proceed directly to review the court's legal conclusion that Agent Jones' reasonable suspicion warranted the roadside stop that gave rise to Lopez-Martinez's guilty plea.

The Supreme Court instructs that border patrol "officers on roving patrol may stop vehicles only if they are 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." United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607 (1975). Derived from the principles underlying Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the "reasonable suspicion" standard for roving border patrol stops reflects the Court's balancing of "the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border." Brignoni-Ponce, 422 U.S. at 881, 95 S.Ct. at 2580.

In Brignoni-Ponce, the Court unveiled a non-exhaustive, multi-factor test that guides our inquiry into whether Agent Jones demonstrated the requisite reasonable suspicion necessary under the Fourth Amendment to stop Lopez-Martinez's vehicle and inquire about the citizenship of his passengers, which we have summarized:

In determining whether there is reasonable suspicion to stop a car in the border area, officers may consider any number of factors, including: (1) characteristics of the area in which the vehicle is encountered; (2) the proximity of the area to the border; (3) the usual patterns of traffic on the particular road; (4) the previous experience of the agent with alien traffic; (5) information about recent illegal border crossings in the area; (6) the driver's behavior, including any obvious attempts to evade officers; (7) aspects of the vehicle, such as a station wagon with concealed compartments; and (8) the appearance that the vehicle is heavily loaded.

United States v. Monsisvais, 907 F.2d 987, 990 (10th Cir.1990) (citing Brignoni-Ponce, 422 U.S. at 884-85, 95 S.Ct. at 2582).

Agent Jones is "entitled to assess the facts in light of his experience in detecting illegal entry and smuggling," Brignoni-Ponce, 442 U.S. at 885, 95 S.Ct. at 2582, and we must scrutinize his decision to stop Lopez-Martinez by examining the "totality of the circumstances." United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989); United States v. Barbee, 968 F.2d 1026, 1028 (10th Cir.1992). Neither Brignoni-Ponce nor its progeny identify a minimum number of factors necessary to constitute reasonable suspicion or any outcome determinative criteria. Indeed, such an approach would be antithetical to a totality of the circumstances inquiry.

Insofar as our roving "border patrol stop cases are fact driven and must be considered on a case-to-case basis," United States v. Martin, 15 F.3d 943, 950 (10th Cir.1994), Lopez-Martinez is not persuasive in his attempt to distill our numerous opinions and to isolate three factors from the Brignoni-Ponce test that always exist when we have upheld a roving border patrol stop. Compare United States v. Barbee, 968 F.2d at 1028 (upholding evening stop of vehicle, with out-of-state license plates, driving on a little-used highway commonly used by alien and drug smugglers, where passengers in back seat crouched down when headlights illuminated them), with Martin, 15 F.3d at 945 (upholding early evening stop on New Mexico's Highway 185, despite vehicle's in-state license plates, given extensive additional surrounding facts). Contrary to Lopez-Martinez's contention, "[t]he concept of reasonable suspicion, like probable cause, is not 'readily, or even usefully, reduced to a neat set of legal rules,' " Sokolow, 490 U.S. at 7, 109 S.Ct. at 1585 (quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983)), and we decline his invitation to proclaim an ironclad formula.

To be sure, an officer's specific articulable facts, when viewed in isolation, will often comport with general notions of innocent travel rather than criminal activity. Roads situated adjacent to an international border facilitate legitimate traffic. There is nothing inherently suspect about a van or station wagon utilizing such a thoroughfare. Our task, however, is not to pigeonhole each purported fact as either consistent with innocent travel or manifestly suspicious. Rather, the reasonable suspicion calculus turns on whether the specific articulable facts, when viewed together through the lens of a reasonable law enforcement officer, justified a brief roadside detention to determine whether the vehicle contained undocumented aliens. See Brignoni-Ponce, 422 U.S. at 884-885, 95 S.Ct. at 2582; see also Terry, 392 U.S. at 22-23, 88 S.Ct. at 1880-81 (acknowledging that "a series of acts, each of...