U.S. v. Neufeld-Neufeld, 02-50671.

• Citation: 338 F.3d 374
• Decision Date: 08 July 2003
• Docket Number: No. 02-50671.,02-50671.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Enrique NEUFELD-NEUFELD, a/k/a Alan Rosaire Boutin, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

338 F.3d 374

UNITED STATES of America, Plaintiff-Appellee, v. Enrique NEUFELD-NEUFELD, a/k/a Alan Rosaire Boutin, Defendant-Appellant.

No. 02-50671.

United States Court of Appeals, Fifth Circuit.

July 8, 2003.

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Joseph H. Gay, Jr., Asst. U.S. Atty., Margaret M. Embry, San Antonio, TX, for Plaintiff-Appellee.

Philip J. Lynch, Lucien B. Campbell, Fed. Pub. Def., San Antonio, TX, for Defendant-Appellant.

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

Before JONES and CLEMENT, Circuit Judges, and FELDMAN, District Judge.^*

CLEMENT, Circuit Judge:

Appellant Enrique Neufeld-Neufeld ("Neufeld") asserts on appeal that the district court erred in denying his motion to suppress evidence seized following an allegedly unlawful vehicle stop. We AFFIRM.

I. FACTS AND PROCEEDINGS

Around noon on May 18, 2001, Border Patrol Agents Rodolfo Garcia ("Garcia")¹ and David Marshall ("Marshall")² (collectively, "the Agents") were traveling south on U.S. Highway 385 through Big Bend National Park ("Big Bend").³ The Agents were driving separate vehicles—Garcia in front in an unmarked vehicle and Marshall a quarter-mile behind in a marked patrol car. The Agents were planning on joining their colleagues in searching for a marijuana cache that had been reported by recently apprehended illegal immigrants.

Two miles from their destination and thirty-five miles from the U.S.-Mexico border,⁴ Garcia and Marshall encountered a red-and-white Ford pickup truck ("the pickup") traveling north on U.S. Highway 385 in Big Bend.⁵ At the time of the encounter, the Agents noticed that the pickup, which had Texas license plates and a Big Bend permit attached to its windshield, was driven by a young white male (Neufeld) traveling alone. The pickup passed Garcia's unmarked vehicle without event, but upon sight of Marshall's marked patrol car, the pickup's "nose dove down," which indicated that Neufeld had "hit the brakes really hard." Marshall found this to be suspicious because the pickup did not appear to be speeding. Neufeld also acted suspiciously by failing to acknowledge the marked patrol car and by sitting stiffly and staring straight ahead, with his hands in "the 10-2 position [that is typically taught] in driver's school."

Marshall radioed Garcia and confirmed that neither agent was familiar with the pickup or its driver. Based on their suspicions, Marshall and Garcia turned around and began following the pickup. Marshall conducted a registration check that indicated the pickup belonged to a Fort Worth couple. Marshall found it strange that a pickup registered to a couple would only have one occupant and that a pickup registered in Fort Worth would be in Big Bend. Based on all the information available to them, Marshall and Garcia stopped the pickup.

After the Agents stopped the pickup, they quickly deduced that it likely contained contraband. First, Marshall noted the strong smell of gasoline as he approached the pickup, which indicated that the gas tank either had been tampered with or had a leak.⁶ Garcia examined the undercarriage of the pickup and found tool marks on the gas tank, which indicated that something was possibly hidden inside. Second, Garcia found mud on the undercarriage and wheel wells, which suggested that Neufeld may have driven over a low-water section of the Rio Grande. Third, the Agents asked Neufeld if he had been to Mexico, and he said "no" even though he had a Mexican driver's license and spoke in Spanish and broken English.⁷ Neufeld claimed Canadian citizenship and produced a Canadian birth certificate to that effect. Fourth, Neufeld told the Agents that he was driving from Presidio, Texas, to Canada, but he had no luggage except for a duffel bag. When he Agents asked him where he was going, Neufeld simply said "Canada."

Neufeld agreed to a canine inspection, which indicated the presence of narcotics. A search of the gas tank revealed metal boxes containing marijuana. Neufeld was charged with possession of marijuana with intent to distribute. He filed a motion to suppress, which was referred to a magistrate judge. After a hearing, the magistrate judge recommended that the motion be denied. Neufeld objected to the magistrate judge's recommendation. After conducting a de novo review and hearing Neufeld's objections, the district court adopted the magistrate judge's report and recommendation and denied the motion to suppress and subsequent motion to reconsider. Neufeld pleaded guilty, but reserved the right to appeal the denial of his motion to suppress. He was sentenced to 41 months imprisonment, three years supervised release, and other terms and conditions. Neufeld filed a timely appeal. On appeal, Neufeld only challenges the initial vehicle stop, not the subsequent search and seizure.

II. STANDARD OF REVIEW

In reviewing a district court's ruling on a motion to suppress, this Court accepts findings of fact unless clearly erroneous but reviews de novo the ultimate conclusion as to the constitutionality of the law-enforcement action, "including whether there was reasonable suspicion for a stop." United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir.2001). "A factual finding is not clearly erroneous as long as it is plausible in light of the record as a whole." Id. (citing United States v. Shipley, 963 F.2d 56, 58 (5th Cir.1992)).

III. DISCUSSION

"The Fourth Amendment prohibits unreasonable searches and seizures by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest." United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (citing Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Although the protections of the Fourth Amendment extend to investigatory stops, "the level of suspicion required for [an investigatory or] Terry stop is obviously less demanding than that for probable cause." United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). "The police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks probable cause." Id.

The "somewhat abstract" and "elusive" nature of the reasonable suspicion standard makes it impossible to create "a neat set of legal rules" of what constitutes reasonable suspicion, but this very elusiveness provides courts with the flexibility needed to make case-specific determinations based on particularized facts. Arvizu, 534 U.S. at 274-75, 122 S.Ct. 744 (citing Ornelas v. United States, 517 U.S. 690, 695-96, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) and United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)); United States v. Nelson, 284 F.3d 472, 484 (3rd Cir.2002); United States v. Santiago Vega, 228 F.Supp.2d 2, 7 (D.P.R.2002) ("[P]er se rules are inappropriate in the Fourth Amendment context.").

The application of the reasonable suspicion standard requires the consideration of the totality of the circumstances. Cortez, 449 U.S. at 417, 101 S.Ct. 690 (holding 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." Id.; United States v. Michelletti, 13 F.3d 838, 840 (5th Cir.1994) (en banc) ("Reasonable suspicion must be supported by particular and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant an intrusion."); United States v. Antuna, 186 F.Supp.2d 138, 142 (D.Conn. 2002) ("The totality of the circumstances is judged based on what the officer knew before the suspect was detained.") (citing Arvizu, 534 U.S. at 266, 122 S.Ct. 744). "The officer, of course, must be able to articulate something more than an `inchoate and unparticularized suspicion or hunch.'" Sokolow, 490 U.S. at 7, 109 S.Ct. 1581 (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868); Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir.2000). Indeed, the totality of the circumstances should reflect the outcome of a process in which "officers [] draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person." Arvizu, 534 U.S. at 273, 122 S.Ct. 744; Nelson, 284 F.3d at 474, 478, 485.

This Court considers whether reasonable suspicion exists based on the following factors, among others: (1) proximity to the border; (2) characteristics of the area; (3) usual traffic patterns; (4) agent's previous experience in detecting illegal activity; (5) behavior of the driver; (6) particular aspects or characteristics of the vehicle; (7) information about recent illegal trafficking in aliens or narcotics in the area; and (8) the number, appearance, and behavior of the passengers. Jacquinot, 258 F.3d at 427 (citing United States v. Brignoni-Ponce, 422 U.S. 873, 884-85, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)).

The Brignoni-Ponce factors must not be analyzed in isolation from each other, but rather as a collective whole. Arvizu, 534 U.S. at 274, 122 S.Ct. 744 ("The court's evaluation and rejection of seven of the listed factors in isolation from each other does not take into account the `totality of the circumstances' as our cases have understood that phrase ... [because] Terry... precludes this sort of divide-and-conquer analysis."); United States v. Espinosa-Alvarado, 302 F.3d 304, 307 n. 6 (5th Cir.2002) ("Arvizu simply clarified the principle that reviewing courts `must look at the totality of the circumstances of each case' when making reasonable-suspicion determinations, making clear that a `divide-and-conquer' style analysis is inappropriate.") (internal citations omitted); ...