U.S. v. Nichols, 97-40843

• Decision Date: 29 May 1998
• Docket Number: No. 97-40843,97-40843
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Dale NICHOLS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 857

142 F.3d 857

UNITED STATES of America, Plaintiff-Appellee, v. Robert Dale NICHOLS, Defendant-Appellant.

No. 97-40843.

United States Court of Appeals, Fifth Circuit.

May 29, 1998.

Rehearing Denied July 6, 1998.

Kathlyn Giannaula Snyder, Paula Camille Offenhauser, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.

Paul C. Looney, Clay S. Conrad, Houston, TX, for Defendant-Appellant.

On Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, and REYNALDO G. GARZA and DENNIS, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

Robert Dale Nichols pleaded guilty, under a conditional plea, to one count of possession with intent to distribute in excess of 100 kilograms of marijuana. Prior to that plea, the district court had denied Nichols' motion to suppress the marijuana and Nichols' statements while in custody, holding that the Border Patrol had reasonable suspicion to stop Nichols' automobile, "based on sufficient articulable facts." The district court also held, in the alternative, that the border patrol agents had an "objectively reasonable good faith belief that they had sufficient basis to make the stop."

Nichols argues on appeal that the district court erred in denying his motion to suppress any evidence or statements that the Border Patrol obtained while detaining and holding him in custody. Nichols argues that the Border Patrol agents did not have reasonable suspicion to stop his vehicle, but does not challenge the ensuing search of his vehicle, which revealed the marijuana. Nichols further asserts that the district court erred in its alternative holding, arguing that the "good faith" exception to the exclusionary rule does not apply to reasonable suspicion determinations.

We find below that, based on sufficiently articulable facts, the totality of the circumstances surrounding the Border Patrol's stop of Nichols' vehicle satisfied the constitutional requirement of reasonable suspicion. ¹ We begin by discussing the Supreme Court decision establishing the reasonable suspicion standard for roving Border Patrol investigatory stops. We also briefly examine the important public interest justifying a departure from the probable cause requirement of the Fourth Amendment in such circumstances, as well as the recent application of the reasonable suspicion standard in this circuit. This opinion next sets forth the facts of the present case, and then examines those facts in light of the reasonable suspicion standard. Due to the presence of several factors supporting the reasonableness of the Border Patrol agents' suspicion in this case, we conclude that, based on the totality of the circumstances, there were sufficient articulable facts to support the Border Patrol's reasonable suspicion that Nichols was engaged in criminal activity. As such, we find no violation of the Fourth Amendment, and we affirm the district court's denial of Nichols' motion to suppress.

I. Background

A. The Fourth Amendment and Roving Border Patrol Stops

The Supreme Court addressed the Border Patrol's authority to stop automobiles near the Mexican border in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), finding that such authority exists only where Border Patrol agents "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." Id. at 884, 95 S.Ct. at 2582. Specifically, Brignoni-Ponce required the Court to address whether roving Border Patrol agents may stop a vehicle near the Mexican border where the only ground for suspicion is that the vehicle's occupants appear to be of Mexican ancestry. Id. at 876, 95 S.Ct. at 2577-78. The Court held that the mere appearance of Mexican ancestry did not alone amount to the reasonable suspicion necessary for a roving Border Patrol stop near the border. Id. at 886-87, 95 S.Ct. at 2582-83.

The Court began by noting that the Fourth Amendment applies to all seizures of the person, including seizures involving only a brief detention short of traditional arrest. Id. at 878, 95 S.Ct. at 2578-79 (citing, e.g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Quoting from the seminal Terry decision, the Court explained that a police officer's restraint of an individual's freedom to walk away constitutes a seizure, for which the Fourth Amendment imposes a reasonableness requirement. Id. The reasonableness of such a seizure, as the Court pointed out, "depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." Id.

The Court then examined the interests at stake, finding that "[b]ecause of the limited nature of the intrusion, stops of this sort may be justified on facts that do not amount to the probable cause required for an arrest." Id. at 880, 95 S.Ct. at 2580. In reaching this conclusion, the Court examined the public interest in effective prevention of illegal entry of aliens at the Mexican border, which creates "significant economic and social problems." Id. at 878-79, 95 S.Ct. at 2579. Against this valid public interest, the Court weighed the interference with individual liberty that results when an officer stops an automobile and questions its occupants, finding this intrusion to be "modest." Id. at 879, 95 S.Ct. at 2579. The Court concluded:

[B]ecause 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, we hold that when an officer's observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion. As in Terry, the stop and inquiry must be "reasonably related in scope to the justification for their initiation."

Id. at 881, 95 S.Ct. at 2580.

The Court elaborated by noting that the reasonableness requirement allows the government "adequate means of guarding the public interest and also protects residents of the border areas from indiscriminate official interference." Id. at 883, 95 S.Ct. at 2581. As such, the Court found that, even though the intrusion on personal liberty by roving Border Patrol agents is modest, "it is not 'reasonable' under the Fourth Amendment to make such stops on a random basis." Id. Finally, although holding that the apparent Mexican ancestry of the vehicle's occupants was one of several factors that legitimately inform the reasonable suspicion analysis, the Court nonetheless found that "standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens." Id. at 887, 95 S.Ct. at 2583.

B. The Valid Public Interest Underlying the Reasonable Suspicion Standard

In Brignoni-Ponce, the Supreme Court noted the important public interest in effective prevention of the illegal entry of aliens at the Mexican border:

Estimates of the number of illegal immigrants in the United States vary widely.... Whatever the number, these aliens create significant economic and social problems, competing with citizens and legal resident aliens for jobs, and generating extra demand for social services. The aliens themselves are vulnerable to exploitation because they cannot complain of substandard working conditions without risking deportation.

422 U.S. at 878, 95 S.Ct. at 2579. These concerns are no less pressing today. The United States Immigration and Naturalization Service ("INS") estimates that in October 1996, there were about 5 million undocumented immigrants residing in the United States. INS Statistics: Illegal Alien Resident Population (last modified Nov. 25, 1997) (summarized in William Branigin, Illegal Immigrant Population Grows to 5 Million, WASH. POST , Feb. 8, 1997, at A3). The undocumented immigrant population grew by an estimated 275,000 annually from 1992-96. Id. Since 1988, the number of undocumented Mexican immigrants in the United States has grown an estimated 150,000 annually. Id. Of the 5 million estimated undocumented immigrants in the United States in October 1996, an estimated 2.7 million, or 54 percent, came from Mexico. Id. About 60 percent of the total population of undocumented immigrants entered the United States surreptitiously across land borders, either between official ports of entry, or assisted by professional "alien smugglers." Id. A "very large majority" of these EWI's (entry without inspection) came from Mexico. Id.

Of course, these alarming statistics say nothing of the Border Patrol's other important role in protecting the public interest: preventing the smuggling of illegal narcotics across our borders. At the end of 1997, official estimates held that between 5 and 7 tons of illegal drugs are smuggled across our borders every day. See 143 CONG. REC . E2272-01 (daily ed. Nov. 9, 1997) (statement of Hon. James A Traficant, Jr.); see also Border Patrol Will Extend Its Rio Grande Operations, AUSTIN AMERICAN-STATESMAN, Apr. 4, 1998 (noting that Border Patrol seized 37,652 pounds of marijuana in March 1998, compared with 9,383 pounds seized in March 1997). In fiscal year 1996, the United States Customs Service discovered and seized 2,895 pounds of heroin, 180,946 pounds of cocaine, and 775,225 pounds of marijuana. U.S. Customs Strategic Plan, (last visited Apr. 24, 1998) ; Commissioner of the Customs Service: Oversight Hearing with the Customs Service Before the House Committee on Ways and Means Subcommittee on Trade, 1997 WL 10571632 (May 15, 1997) (statement of Customs Commissioner George Weise) ("In FY 1996, Customs seized or participated in the seizure of a record 1,000,000 pounds of drugs."). According to the Drug Enforcement Agency, the amount of marijuana seized annually rose from approximately 400,000 pounds in 1990 to approximately...