U.S. v. Miranda-Enriquez, MIRANDA-ENRIQUE

• Decision Date: 12 August 1991
• Docket Number: MIRANDA-ENRIQUE,No. 89-2191,D,89-2191
• Citation: 941 F.2d 1081
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Victorefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1081

941 F.2d 1081

UNITED STATES of America, Plaintiff-Appellee, v. Victor MIRANDA-ENRIQUEZ, Defendant-Appellant.

No. 89-2191.

United States Court of Appeals Tenth Circuit.

Aug. 12, 1991.

Michael G. Katz, Federal Public Defender, and Susan L. Foreman, Asst. Federal Public Defender, Denver, Colo., for defendant-appellant.

William L. Lutz, U.S. Atty., and Don J. Svet, First Asst. U.S. Atty., Albuquerque, N.M., for plaintiff-appellee.

Before McKAY, SEYMOUR, and EBEL, Circuit Judges

McKAY, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Defendant-appellant Victor Miranda-Enriquez appeals from his conviction for illegal possession with intent to distribute marijuana based on the district court's denial of his motion to suppress evidence obtained during a stop by a border patrol agent.

Background

At approximately 9:00 p.m. on February 15, 1989, a sensor connected to an immigration checkpoint on I-25 near Truth or Consequences, New Mexico indicated the presence of vehicle travelling north on New Mexico Highway 52. Border patrol agent Robert Johnston responded to the sensor alert by driving to the intersection of Highway 52, I-25 and U.S. Highway 85 and parking perpendicular to Highway 52 with his car headlights shining into the intersection. Agent Johnston testified that from his experience at the nearby I-25 checkpoint he knew that Highway 52 was commonly used by illegal alien smugglers to avoid the checkpoint and that smugglers were most likely to be on the highway in the nighttime hours. He had also made several hundred arrests of smugglers as a result of alerts from the Highway 52 sensor. The government did not put on any evidence which would inform us of how many innocent persons he stopped during the same period.

Shortly after Agent Johnston parked, a 1984 Datsun Nissan Sentra travelling north on Highway 52 approached the intersection. As the car came to a stop at the stop sign, it was illuminated by the headlights of Agent Johnston's car. Agent Johnston noted that the car was heavily covered with fine powdery dust similar to the type of dust found on vehicles entering Highway 52 from a dirt road near Upham, New Mexico, that was also a well-documented smuggling route. He also admitted that the same dust is found in and around Highway 52 and that highway is also extensively traveled by tourists visiting a nearby lake and that the same dust is often seen on their cars. In addition, Agent Johnston saw several undefined shapes in the rear seat of the car which turned out to be child restraint seats. He testified that the car's driver, Mr. Miranda-Enriquez, appeared curiously "frozen" and did not look left or right, i.e., into the headlights of Agent Johnston's border patrol car, before turning onto U.S. Highway 85. Finally, as the car turned, Agent Johnston noted that it had Arizona license plates.

Agent Johnston stopped the car approximately one mile from the intersection. After an exchange with the driver, the officer testified that he received permission to open the trunk where he discovered marijuana. Defendant denied that he gave consent.

A federal grand jury subsequently indicted Mr. Miranda-Enriquez for possession with intent to distribute less than 50 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1). Mr. Miranda-Enriquez filed a motion to suppress that challenged the validity of both Agent Johnston's stop of his vehicle and his search of the car trunk. The district court denied the motion after an evidentiary hearing, holding that the stop was proper, that Mr. Miranda-Enriquez had consented to Agent Johnston searching the trunk and that even if Mr. Miranda-Enriquez had not consented, Agent Johnston had probable cause for conducting the search. Rec., vol. III, at 53-54. Mr. Miranda-Enriquez then entered a guilty plea to the indictment conditioned on his right to appeal the denial of his motion to suppress. After being sentenced to 37 months imprisonment, Mr. Miranda-Enriquez timely appealed from the judgment recording that sentence.

Discussion

The controlling issue in this case is defendant's claim that the initial stop was unlawful. If it was, there clearly was insufficient attenuation between the stop and the search to purge it of the prior illegality.

Under the government's view of this case, every out-of-state driver traveling on New Mexico Highway 52 at 9:00 p.m. with a dusty car who does not turn her or his head to look for oncoming cars at the intersection of Highway 52, I-25, and U.S. Highway 85, 98 miles from the Mexican border, can be stopped and questioned by the Border Patrol. We conclude that this proposition cannot be reconciled with the protections of the Fourth Amendment to the Constitution of the United States.

"The ultimate determination of reasonableness under the Fourth Amendment is ... a conclusion of law that we review de novo." United States v. McKinnell, 888 F.2d 669, 672 (10th Cir.1989).

"[A]n investigatory stop is justified when an officer 'observes unusual conduct which leads him reasonably to conclude in the light of his experience that criminal activity may be afoot.' "

United States v. Monsisvais, 907 F.2d 987, 990 (10th Cir.1990) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968)).

"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."

Id. at 990; see United States v. Pollack, 895 F.2d 686, 690 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 520, 112 L.Ed.2d 532 (1990).

"Terms like 'articulable reasons' and 'founded suspicion' are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances--the whole picture--must be taken into account.

Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity."

Monsisvais, 907 F.2d at 990 (citing United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981)) (emphasis in original). In analyzing the picture as a whole, it must be remembered that "not every suspicion that is 'articulable' is...