U.S. v. Monsisvais, 89-2187

• Decision Date: 03 July 1990
• Docket Number: No. 89-2187,89-2187
• Citation: 907 F.2d 987
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Heriberto Fernandez MONSISVAIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 987

907 F.2d 987

UNITED STATES of America, Plaintiff-Appellee, v. Heriberto Fernandez MONSISVAIS, Defendant-Appellant.

No. 89-2187.

United States Court of Appeals, Tenth Circuit.

July 3, 1990.

Presiliano A. Torrez (William L. Lutz, U.S. Atty., with him on the brief), Asst. U.S. Atty., Albuquerque, N.M., for plaintiff-appellee.

Robert Ramos (Gary Hill with him on the brief), of Hill & Ramos, El Paso, Tex., for defendant-appellant.

Before SEYMOUR, BARRETT, and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

After filing an unsuccessful motion to suppress evidence, appellant Monsisvais entered a conditional guilty plea to possession of more than 100 kilograms of marijuana with intent to distribute. Mr. Monsisvais asserts on appeal that the discovery of the marijuana in his vehicle was the result of an illegal search and seizure.

I

On February 17, 1989, Bruce Goad, an agent with the United States Border Patrol, was operating a Border Patrol checkpoint station on northbound Interstate 25 near Truth or Consequences, New Mexico. Agent Goad testified that at approximately 7:30 p.m. a sensor alarm alerted the checkpoint's officers to the presence of a vehicle traveling northbound on Highway 85, a route by which it is possible to bypass the checkpoint and which is commonly used to bypass the checkpoint. Agent Goad then looked over to Highway 85 and saw the headlights of appellant's northbound vehicle.

Accompanied by another agent, Goad drove north on I-25 in a marked Border Patrol car to Exit 83 in order to intercept the vehicle. Exit 83 was described by Goad as the point "where State Road 52 and Highway 85 meet, ... there's an on-ramp for I-25 north, or if they're going up the road or turning from 52 they can catch I-25 south." Goad elaborated that "there's three ways you can go right there at the intersection" and that the intersection is "somewhat" confusing and "[p]eople have gotten lost there."

Agent Goad testified that he stopped his patrol car at the intersection with his lights off and turned his headlights on again as appellant's vehicle drew near. Goad described the vehicle as a small Chevrolet S-10 pickup with a camper shell and noted that he could see two occupants in the cab. He said the vehicle was "riding extremely heavy. The rear end was real low on the vehicle, and the front of the vehicle was raised like there was a lot of weight in the rear...." Goad stated that he had previously found aliens concealed in pickup trucks with camper shells, and that the pickup had Arizona plates and "we don't get many Arizona vehicles on the old highway there."

According to Goad, appellant's vehicle slowed as it approached the intersection, and it

appeared to [Agent Goad] that he [appellant] was going to take the on-ramp on to I-25 north, and I believe that when he saw the border patrol vehicle and the headlights, he corrected his turn. Instead of going on I-25 north he continued on up the old highway, and eventually took the on-ramp to I-25 south....

Goad added:

It's not an uncommon practice for aliens or alien smugglers, either case may be, if they see the border patrol vehicle, they will sometimes instead of entering the freeway northbound in the direction they were going, they will continue up the old highway, if they are using Old Highway 85, and enter the freeway southbound, sometimes they will just continue on up Old Highway 85 'til it ends."

Goad further testified that, after noticing "the weight and the two occupants and the out-of-state plates, it kind of aroused my suspicions and we stopped the vehicle on I-25 southbound, pretty close to the exit." After questioning appellant as to his citizenship, Goad smelled "a very strong odor of marijuana" emanating from the camper shell. Goad then placed appellant and his passenger under arrest for possession of marijuana. After another agent arrived at the scene with a dog to verify the marijuana odor, the agents opened the camper shell and discovered the marijuana inside.

At the conclusion of the hearing on the Motion to Suppress, the district court announced its findings and conclusions from the bench:

The Court finds that Agent Goad was working the T or C fixed checkpoint when they had a sensor alert on Highway 85, which is the old Highway 85 which now parallels I-25.

That he observed a car proceeding north on 85. That he stationed himself at the intersection of 85, 52 and I-25.

That--at least he perceived that when the vehicle noticed his presence, the vehicle continued on 85 and then proceeded to the ramp, which then placed the defendant's car traveling south on I-25.

I should state that the reason why the sensor on 85 was placed was an attempt to alert the checkpoint to vehicles which normally were using 85 to circumvent the fixed checkpoint.

Upon noticing the vehicle he noticed that it was riding extremely heavy, using his words. That it had Arizona plates and that it was not common to see an automobile with Arizona plates in that vicinity.

And so he then proceeded to follow the vehicle and then he suspected that it might contain illegal aliens, as there was a camper on the pickup, and so therefore he stopped the vehicle.

....

[T]hat this is an appropriate and proper Terry

Additionally, the district court held that the subsequent search was proper. Appellant now challenges the legality of both the stop of the vehicle and the resulting search. Because we reverse the district court on the issue of the investigatory stop, we do not address the propriety of the search.

II

This case returns the court to familiar geographic and legal territory; we have frequently been called upon to assess the legality of investigatory stops made by the Border Patrol near the New Mexico-Mexico border. See, e.g., United States v. Pollack, 895 F.2d 686 (10th Cir.1990); United States v. Merryman, 630 F.2d 780 (10th Cir.1980); United States v. Leyba, 627 F.2d 1059 (10th Cir.), cert. denied, 449 U.S. 987, 101 S.Ct. 406, 66 L.Ed.2d 250 (1980); United States v. Sperow, 551 F.2d 808 (10th Cir.), cert. denied, 431 U.S. 930, 97 S.Ct. 2634, 53 L.Ed.2d 245 (1977).

An investigatory stop need not be supported by probable cause. United States v. Espinosa, 782 F.2d 888 (10th Cir.1986). However, 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, 2581, 45 L.Ed.2d 607 (1975) (extending Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to the border context). Stated alternatively, an investigatory stop is justified when an officer "observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot." Terry, 392 U.S. at 30, 88 S.Ct. at 1884.

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. 422 U.S. at 884-85, 95 S.Ct. at 2581-82. Additionally, an "officer 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 (citing Terry, 392 U.S. at 27, 88 S.Ct. at 1883).

In United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), the Supreme Court provided further direction for applying the Terry/Brignoni-Ponce standard:

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.

449 U.S. at 417-18, 101 S.Ct. at 695 (emphasis added).

Incorporating the "totality of the circumstances" relied upon by appellees in support of the instant stop, we fashion the reasonable-suspicion question before us as follows: Whether the Border Patrol agents operating the Truth or Consequences checkpoint may stop every heavily loaded pickup truck bearing a camper shell and out-of-state license plates that travels northbound on this stretch of Highway 85 at 7:30 p.m. For the reasons outlined below, we believe the question must be answered in the negative.

Appellee places considerable significance on the fact that appellant was intercepted while traveling northbound on Highway 85. To be sure, all parties agree that it is possible to bypass the permanent checkpoint by traveling Highway 85. However, due to the state of the record before us, this fact represents the sum total of our knowledge about this stretch of highway. The record is barren of information describing the origins of Highway 85 in this area and thus fails to instruct us as to the types of legitimate traffic that might be expected to make use of the road at this time of day.

For all the record reveals, this stretch of Highway 85 might be the sole artery connecting the city of Truth or Consequences to northbound I-25, or it may represent a primary means of access from I-25 to Elephant Butte Reservoir. ¹ We certainly are not willing to assume without some evidence that "old"...