U.S. v. Payne, 76-3743

• Decision Date: 07 July 1977
• Docket Number: No. 76-3743,76-3743
• Citation: 555 F.2d 475
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Andrew PAYNE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 475

555 F.2d 475

UNITED STATES of America, Plaintiff-Appellee, v. Andrew PAYNE, Defendant-Appellant.

No. 76-3743.

United States Court of Appeals Fifth Circuit.

July 7, 1977.

Rehearing Denied Aug. 30, 1977.

John E. Fitzgibbon, Laredo, Tex., for defendant-appellant.

Edward B. McDonough, Jr., U. S. Atty., James R. Gough, George A. Kelt, Jr., Rene J. Gonzalez, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

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

Before COLEMAN, Circuit Judge, KUNZIG, Associate Judge, ^* and GEE, Circuit Judge.

KUNZIG, Associate Judge:

This case comes to us on appeal from Andrew Payne's (defendant-appellant) conviction for violation of 21 U.S.C. § 841(a)(1) ¹ (marijuana possession and intent to sell). The trial was held to Judge Robert J. O'Conor of the District Court for the Southern District of Texas, defendant having waived trial by jury. After denying defendant's motion to suppress evidence allegedly obtained in violation of the Fourth Amendment, the trial court convicted and sentenced defendant Payne to imprisonment for a term of five years, to be followed by a special parole term of three years. This appeal is taken solely on the ground that the trial judge erred in ruling on the motion to suppress. We affirm the decision below and uphold the conviction.

The facts are these: On the morning of April 14, 1976, two U.S. Border patrolmen on duty in Hebronville, Texas, received a signal on the Chekar ² alerting them to the fact that a vehicle was approaching Hebronville from the south on Highway 1017. The patrolmen drove south and saw the approaching car, a Chevrolet El Camino camper and saw that, though it had no visible occupant other than the driver, it was riding low, that it had out-of-county license plates, and that the rear windows were blacked out. Making a U-turn, the patrolmen followed the El Camino and continued to observe it. They saw that the camper was erratically moving from side to side across the highway, that the camper was equipped with air shock absorbers, ³ and that the camper handled as though it was heavily loaded.

After having thus followed the El Camino camper and having formed the suspicion that it was carrying illegal aliens, the Border Patrolmen stopped the vehicle to confirm the citizenship of its driver and to determine whether it contained illegal aliens. Upon approaching the vehicle, the Border Patrol Officer detected a strong odor of marijuana. A subsequent search of the vehicle turned up approximately 565 pounds of marijuana.

Both at the suppression hearing and now on appeal, Payne contends that the warrantless search was impermissible under the Fourth Amendment and that the marijuana which was seized should have been excluded from use at the trial. Appellant Payne, relying upon United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), asserts that the initial stop was not made on reasonable suspicion and that, since the initial stop was improper (so appellant maintains), the ensuing search, even if based on probable cause, must fail.

The Government also relies on Brignoni-Ponce, supra, urging the court that the totality of the circumstances here on the record does, indeed, support the initial stop based on the reasonable suspicion that illegal aliens were in the El Camino camper. The Government further asserts that, since the search and seizure was based on probable cause found after a lawful stop of a movable vehicle on the open road, the evidence was properly admitted by the trial judge.

The Supreme Court has held, in a case such as the one at bar, that a stop by the Border Patrol is justified only where there is a reasonable suspicion to believe that a law is being broken. The standard, involving something more than mere suspicion and less than probable cause, must be met by demonstrating articulable facts and drawing rational inferences therefrom. Brignoni-Ponce, supra. Said the Court:

Any number of factors may be taken into account in deciding whether there is reasonable suspicion to stop a car in the border area. Officers may consider the characteristics of the area in which they encounter a vehicle. Its proximity to the border, the usual patterns of traffic on the particular road, and previous experience with alien traffic are all relevant. See Carroll v. United States, 267 U.S. 132, 159-61, 45 S.Ct. 280, 69 L.Ed. 543 (1925); . . . . They also may consider information about recent illegal border crossings in the area. The driver's behavior may be relevant, as erratic driving or obvious attempts to evade officers can support a reasonable suspicion. . . . Aspects of the vehicle itself may justify suspicion. For instance, officers say that certain station wagons, with large compartments for fold-down seats or spare tires, are frequently used for transporting concealed aliens. . . . The vehicle may appear to be heavily loaded, it may have an extraordinary number of passengers, or the officers may observe persons trying to hide. . . . The Government also points out that trained officers can recognize the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut. . . . In all situations the officer is entitled to assess the facts in light of his experience in detecting illegal entry and smuggling. Terry v. Ohio, 392 U.S. (1), at 27, 88 S.Ct. 1868, 20 L.Ed.2d 889. (Citations and footnote omitted)

United States v. Brignoni-Ponce, 422 U.S. 873, 884-85, 95 S.Ct. 2574, 2582 (1974).

Here we have a situation where experienced Border Patrolmen saw a vehicle with out-of-county license plates that was moving erratically, in a bouncing motion, changing lanes; a vehicle that had blacked-out rear windows and heavy duty shock absorbers; that was riding low although only one occupant was visible; a vehicle, in short, which both looked and handled as though it were heavily loaded. These Border patrolmen were posted in proximity to the Border (some 70 miles from Mexico); they knew...