U.S. v. Quintana-Garcia, 02-2127.

• Decision Date: 09 September 2003
• Docket Number: No. 02-2127.,02-2127.
• Citation: 343 F.3d 1266
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Guadalupe Quintana-Garcia, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

343 F.3d 1266

UNITED STATES of America, Plaintiff-Appellee, v. Guadalupe Quintana-Garcia, Defendant-Appellant.

No. 02-2127.

United States Court of Appeals, Tenth Circuit.

September 9, 2003.

Norman Cairns, Assistant United States Attorney, Albuquerque, NM (David C. Iglesias, United States Attorney, Albuquerque, NM, with him on the brief), for Plaintiff-Appellee.

Rosanne Camunez, Las Cruces, NM, for Defendant-Appellant.

Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and MURPHY, Circuit Judge.

EBEL, Circuit Judge.

Defendant-Appellant Guadalupe Quintana-Garcia ("Defendant") entered a conditional guilty plea to a three-count indictment charging her with conspiring to possess with intent to distribute less than 50 kilograms of marijuana, in violation of 21 U.S.C. § 846; possession with intent to distribute less than 50 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(d) and 18 U.S.C. § 2; and possession of cocaine, in violation of 21 U.S.C. § 844. She reserved her right to appeal the district court's denial of her motion to suppress evidence obtained as the result of a Border Patrol Agent's allegedly illegal stop of the vehicle in which she was traveling. We take jurisdiction pursuant to 28 U.S.C. § 1291 and, for the reasons that follow, AFFIRM the district court's denial of Defendant's motion to suppress.

I. BACKGROUND¹

On the morning of June 30, 2001, Border Patrol Agent Rudy Sanchez parked his marked patrol vehicle on the side of Highway 26, a road that carries mostly local traffic between the towns of Deming and Hatch in southern New Mexico, approximately 50 to 60 miles from the Mexican border. There are three permanent Border Patrol checkpoints in southern New Mexico but none on Highway 26, which is known as a "back door" for smugglers wanting to avoid the checkpoints.

At approximately 11:45 a.m., Agent Sanchez saw a large, gray Chevy Suburban traveling north on Highway 26, away from the Mexican border. Having previously arrested smugglers of both illegal aliens and drugs who drove sport utility vehicles, he knew that smugglers tended to prefer large vehicles because they can carry more cargo. The Suburban also had tinted windows, which is another feature preferred by smugglers, and Mexican license plates, which was somewhat unusual as most of the traffic on Highway 26 was local traffic used by New Mexico residents in the area. Agent Sanchez learned from a radio dispatcher that the car had passed through a border checkpoint at the Mexican border approximately two to three hours earlier. Agent Sanchez also thought it significant, for two reasons, that the car was approaching his area around lunchtime. First, one week earlier he had apprehended a vehicle carrying illegal aliens around lunchtime. Second, Border Patrol agents had learned through interviews and investigation that smugglers knew the agents' schedules and would often try to slip past them at lunch or during shift changes.

Agent Sanchez's vehicle was not equipped with a radar device, but he estimated that the car was traveling about 75 miles per hour, 10 miles per hour above the posted speed limit. The district court found that in Agent Sanchez's experience, "smugglers move [as] quickly as possible through the border area to make certain that their presence for any protracted period doesn't expose them to interception." As the car approached (and presumably saw) Agent Sanchez's vehicle, it slowed "significantly," which indicated to Agent Sanchez that the driver did not want to be "detected or be noticed if they were transporting illegal aliens."

Based on these observations, Agent Sanchez suspected that the driver of the Suburban might be smuggling illegal aliens. He pulled onto the highway and began to follow the Suburban, but he did not at that time turn on his flashing lights or his siren. As he followed it, the Suburban slowed again, this time to approximately 45-50 miles per hour. It soon slowed even further and pulled over to the right side of the road, still moving. Agent Sanchez was worried, based on experience, that the occupants of the Suburban might attempt a "bailout," which is an escape tactic in which the occupants jump from a slowly moving car and run in different directions to avoid capture. As the Suburban pulled to the side of the road, Agent Sanchez turned on his patrol vehicle's flashing lights. Unlike most cars, the Suburban did not stop immediately; rather, it continued moving for approximately another minute before it stopped.

Agent Sanchez exited his vehicle and approached the Suburban. He spoke first to the driver, Leahmanda Barnes, and asked her if she was a United States citizen. She said that she was and produced her driver's license. He then asked the person sitting in the passenger's seat, Defendant, if she was a U.S. citizen. Defendant produced her border crossing card, which showed that she was a Mexican national. A border crossing card allows the holder to cross the Mexico/U.S. border as long as she stays within 25 miles of the border; to go farther, a special permit is required.² Agent Sanchez then asked Barnes if she owned the vehicle, and Barnes told him that Defendant owned it. Agent Sanchez asked Defendant if that was correct, and Defendant indicated that she did not speak English.

Agent Sanchez switched to Spanish and continued questioning Defendant about her ownership of the Suburban. As he did so, he "smelled a strong odor" that he "recognized as silicone sealant." Agent Sanchez said that based on his experience, "silicone sealant, along with bondo, are the two most commonly used materials to secrete [sic] narcotics[,] to seal trap doors, to seal compartments, and it aroused [his] suspicion that this vehicle might be carrying narcotics." Based on this suspicion, Agent Sanchez asked Defendant for permission to have his K9 police dog inspect the Suburban. Defendant consented.

During the inspection, the police dog alerted to the Suburban's gas tank. Agent Sanchez noticed immediately that the bolts attaching the gas tank to the vehicle had been tampered with: "they had shiny tool marks on them, and the hose, the filler neck hose, the camp, was left loose, it was just dangling there, it had not even been tightened down." When Agent Sanchez used a fiberoptic scope to inspect the gas tank, he saw fresh welding marks inside it, which indicated to him that something was hidden in the tank. He then asked Defendant and Barnes if they would follow him to a nearby Border Patrol checkpoint where he could further examine the tank. They agreed to do so. At the checkpoint, the gas tank was opened and twenty-one bundles of marijuana, weighing approximately ninety-three pounds, were found inside. Defendant also had some cocaine in her purse.

Defendant moved to suppress the evidence obtained as a result of the stop on the ground that Agent Sanchez lacked the required reasonable suspicion to conduct the stop. After a hearing, the district court denied the motion. Defendant was later sentenced to, inter alia, 330 days' imprisonment and two years' supervised release.

II. DISCUSSION

In reviewing a district court's denial of a motion to suppress, we accept the district court's factual findings unless they are clearly erroneous. United States v. Gandara-Salinas, 327 F.3d 1127, 1129 (10th Cir.2003). We review de novo, however, the ultimate question of Fourth Amendment reasonableness. Id.

"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), and United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). The requirements of the Fourth Amendment are satisfied in this context "if the officer's action is supported by reasonable suspicion to believe that criminal activity `"may be afoot."'" Id. (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting Terry, 392 U.S. at 30, 88 S.Ct. 1868)).

The Supreme Court has emphasized that, in determining whether an investigatory stop is supported by reasonable suspicion, courts must "`look at the totality of the circumstances' of each case to see whether the detaining officer has a `particularized and objective basis' for suspecting legal wrongdoing." Id. The evaluation is made from the perspective of the reasonable officer, not the reasonable person. Officers must be permitted "to 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.'" Id. (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)); see also Gandara-Salinas, 327 F.3d at 1130.

In determining whether a stop in a border area is supported by reasonable suspicion, the following factors are relevant:

(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.

Gandara-Salinas, 327 F.3d at 1129-30 (quoting United States v. Monsisvais, 907 F.2d 987, 990 (10th Cir.1990) (citing United States v. Brignoni-Ponce, 422 U.S. 873, 884-85, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975))). When evaluating these factors, a court must not engage in the kind of "divide-and-conquer analysis" rejected by the Arvizu Court. See Ar...