U.S.A. v. Morales, 98-50921

• Decision Date: 04 October 1999
• Docket Number: No. 98-50921,98-50921
• Parties: (5th Cir. 1999) UNITED STATES of AMERICA, Plaintiff-Appellee, v. JAMIE CHACON MORALES, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 602

191 F.3d 602 (5th Cir. 1999)

UNITED STATES of AMERICA, Plaintiff-Appellee, v. JAMIE CHACON MORALES, Defendant-Appellant.

No. 98-50921

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

October 4, 1999

Certiorari Denied February 22, 2000.

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

Before DUHE, BARKSDALE and EMILIO M. GARZA, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Having been convicted of conspiracy, and its corresponding substantive offense, for possession with intent to distribute marijuana, in violation of 21 U.S.C. 846, 841(a)(1), the sole issue presented by Jamie Chachon Morales is whether, consistent with the Fourth Amendment, and based upon the totality of the circumstances, a Border Patrol Agent had the requisite reasonable suspicion, formed by articulable facts and rational inferences, to make an investigatory stop of Morales, far inland from the Mexican border. We AFFIRM.

I.

On 11 December 1997, Border Patrol Agent Bollier, a 28-year veteran, who was in charge of the Midland, Texas, Border Patrol station, stopped Morales on I-20, near Penwell, Texas, approximately 150 miles north of the border. After observing characteristics about Morales' pickup truck as it passed the Agent's parked vehicle (such as being heavily loaded and having a fiberglass cover over the bed of the truck), and then following Morales for five miles, the Agent made the investigatory stop, because, based upon his observations and inferences drawn from them, all prompted by his extensive experience, he suspected criminal activity. After a brief conversation with Morales, the Agent received permission to search the truck; he found 1400 pounds of marijuana.

Morales' suppression motion, claiming a lack of reasonable suspicion for the stop, was denied after a hearing at which Agent Bollier testified. Morales was convicted at a bench trial and sentenced, inter alia, to 68 months imprisonment.

II.

For the sole investigatory stop issue, Morales concedes as true all of the facts underlying the suppression ruling; the stop-was-reasonable-ruling is reviewed de novo. E.g., United States v. Villalobos, 161 F.3d 285, 288 (5th Cir. 1998). Suppression hearing evidence is viewed in the light most favorable to the prevailing party. Id.

"An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981) (emphasis added). Accordingly, "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 [, inter alia,] aliens who may be illegally in the country". United States v. Brignoni-Ponce, 422 U.S. 873, 884, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975) (emphasis added); see, e.g., Cortez, 449 U.S. at 417-18; Villalobos, 161 F.3d at 288; United States v. Inocencio, 40 F.3d 716, 722 (5th Cir. 1994).

Factors that may be considered in deciding whether to make an investigatory stop include, but are not limited to: (1) "characteristics of the area in which [Agents] encounter a vehicle"; (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", or other criminal activity there; (6) "the driver's behavior", such as "erratic driving or obvious attempts to evade officers"; (7) the type vehicle, or its other "aspects", such as types known to "officers ... [to be] frequently used for transporting concealed aliens"; (8) "the vehicle may appear to be heavily loaded"; (9) "it may have an extraordinary number of passengers"; (10) they may be "trying to hide"; and (11) the officer may "recognize the characteristic appearance of persons who live" outside the United States, such as "in Mexico". Brignoni-Ponce, 422 U.S. at 884-85, as expanded by its progeny; see, e.g., Villalobos, 161 F.3d at 288 (factors expanded to cover other types of criminal activity in addition to alien trafficking).

"No single factor is determinative; the totality of the particular circumstances must govern the reasonableness of any stop by roving border patrol officers." United States v. Moreno-Chaparro, 180 F.3d 629, 631-32 (5th Cir. 1998) (emphasis added). "Obviously[,] only those factors known to the officer at the time of the stop can be considered when determining whether the stop was reasonable." Id. at 632.

Of considerable importance to the case at hand is that, "in all situations the officer is entitled to assess the facts in light of his experience in detecting illegal entry[,] ... smuggling", or other criminal activity. Brignoni-Ponce, 422 U.S. at 885; see, e.g., Cortez, 449 U.S. at 418; United States v. Aldaco, 168 F.3d 148, 151 (5th Cir. 1999); Villalobos, 161 F.3d at 288.

Agent Bollier had 28-years experience interdicting, among other things, smugglers; he had handled hundreds of such cases. At the suppression hearing, based on this extensive experience, he articulated the numerous facts and corresponding inferences that prompted the investigatory stop.

The Agent testified that I-20 is "notorious for alien smuggling and narcotics". It has its western terminus at I-10, approximately 120 miles east of El Paso, Texas, and runs easterly cross-country through numerous heavily populated areas, including at least six with connecting north/south interstate highways: Dallas, Texas; Shreveport, Louisiana; Jackson, Mississippi; Birmingham, Alabama; Atlanta, Georgia; and Columbia, South Carolina (eastern terminus). I-10, the I-20 western terminus, runs through El Paso, a heavily trafficked border crossing point. Moreover, southeast from El Paso for approximately 60 miles, I-10 runs very close to the border. And, the I-10 terminus for I-20, approximately 30 miles southwest of Pecos, Texas, is approximately 100 miles north of the border. That area of Texas south of the I-10/I-20 intersection, which includes Big Bend National Park on the border, is frequently (and then some) used for illegal trafficking of aliens and drugs.

In the past year alone, the Agent had detained approximately 600 illegal aliens on this stretch of the highway. For those instances, 15-20 aliens were usually found hidden in the back of a van or pickup truck.

The Agent was parked facing eastbound traffic (toward Dallas), where the highway had a series of bumps. He selected this spot in order to observe the reaction of vehicles driven over those bumps. A heavily loaded vehicle tended to keep bouncing or "floating" as it passed; Morales' pickup truck did so.

A similar factor, observed later by the Agent after he began following Morales, was that the tires on the pickup truck appeared to be underinflated. This condition usually results from a heavy load.

The pickup truck had a fiberglass cover over the truck bed. The Agent knew that smugglers use such cover to hide contraband. For example, based on his experience, persons could have been lying under it.

In addition, Morales did a "doubletake" when he passed the Agent's stationary, marked Border Patrol vehicle. Immediately thereafter, the pickup truck's motor sounds changed, indicating that the vehicle was slowing down.

The majority of the smuggling detected by the Agent occurred between 9:30-10:00 a.m. Morales passed by the Agent during that time period.

These observations and inferences caused Agent Bollier to follow Morales -- the first vehicle the Agent followed that day. He had been parked by the side of the interstate, visible for about 200 yards, observing traffic since 8:00 a.m., and hundreds of vehicles had passed.

Upon reading Morales' license plate, Agent Bollier checked the vehicle registration. The registered owner was "E. J. Philips" from Dallas, Texas. The Agent thought Morales' Hispanic appearance was inconsistent with the non-Hispanic surname of the registered owner.

Additionally, Morales was paying more attention, through use of the rear view mirror, to Agent Bollier's vehicle than to the road, and was "weaving back and forth across the line". These factors further raised the Agent's level of suspicion that illegal activity was afoot.

It goes without saying that...