U.S. v. Rubio-Hernandez, P-97-CR-211-F.

CourtUnited States District Courts. 5th Circuit. Western District of Texas
Citation39 F.Supp.2d 808
Docket NumberNo. P-98-CR-171-F.,No. P-97-CR-211-F.,P-97-CR-211-F.,P-98-CR-171-F.
PartiesUNITED STATES of America v. Luis Arturo RUBIO-HERNANDEZ. United States of America v. Rigoberto Hernandez-Vizcaino.
Decision Date02 March 1999
39 F.Supp.2d 808
United States of America
Rigoberto Hernandez-Vizcaino.
No. P-97-CR-211-F.
No. P-98-CR-171-F.
United States District Court, W.D. Texas, Pecos Division.
March 2, 1999.

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Fred C. Brigman, Assistant U.S. Attorney, Alpine, TX, for United States.

Kurt J. Mayer, Assistant Federal Public Defender, El Paso, TX, for defendants.


FURGESON, District Judge.

How do we balance our Fourth Amendment rights, which "belong in the catalog of indispensable freedoms," Brinegar v. United States, 338 U.S. 160, 180, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (Jackson, J., dissenting) with our legitimate need to prevent alien and drug smuggling across our borders? As Justice Powell observed:

There can be no question as to the seriousness and legitimacy of the law enforcement problem with respect to enforcing along thousands of miles of open border valid immigration and related laws. Nor can there be any question as to the necessity, in our free society, of safeguarding persons against searches and seizures proscribed by the Fourth Amendment.

Almeida-Sanchez v. United States, 413 U.S. 266, 275, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973) (Powell.J., concurring). Justice Powell also acknowledged that, while the "magnitude of the problem is clear," an "answer, reconciling the obvious needs of law enforcement with relevant constitutional rights, is far less clear." Id. at 277, 93 S.Ct. 2535. Although many judges have written many opinions on the subject since Justice Powell penned these words in 1973, an answer remains elusive. The two cases now before this Court illustrate the point.

In each case, Defendants filed motions to suppress under the Fourth Amendment, asserting that the Border Patrol agents who stopped them did not have reasonable suspicion to believe that the Defendants were engaged in criminal activity. The motions were initially referred to United States Magistrate Judge L. Stuart Platt, who held evidentiary hearings and then recommended that the motion to suppress filed by Luis Arturo Rubio-Hernandez ("Rubio") should be granted and that the motion filed by Rigoberto Hernandez-Vizcaino ("Hernandez") should be denied. In this Order, the Court will not only rule on Judge Platt's well-researched and well-written recommendations, but will also invite the Fifth Circuit to revisit its present jurisprudence regarding Fourth Amendment law involving roving patrol stops in the border region.

I. Roving Patrol Stops on the Border

In United States v. Brignoni-Ponce, the Supreme Court first articulated how the roving patrols of the U.S. Border Patrol could constitutionally make stops of vehicles traveling near the border. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). Utilizing the reasoning enunciated in Terry v. Ohio, the Supreme Court stated "that in appropriate circumstances the Fourth

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Amendment allows a properly limited `search' or `seizure' on facts that do not constitute probable cause to arrest or to search for contraband or evidence of crime." Brignoni-Ponce, 422 U.S. at 881, 95 S.Ct. 2574 (analyzing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Likewise, in roving patrol cases at the border,

because 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.


In Brignoni-Ponce, the Supreme Court further held that, except "at the border and its functional equivalents, 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 aliens who may be illegally in the country." Id. at 884, 95 S.Ct. 2574. This test was extended to include criminal activity as well as alien smuggling in United States v. Cortez, which held that "the question is whether, based upon the whole picture, they, as experienced Border Patrol officers, could reasonably surmise that the particular vehicle they stopped was engaged in criminal activity." United States v. Cortez, 449 U.S. 411, 421-22, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). In Cortez, the Supreme Court emphasized how the test was to be administered:

Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like "articulable reasons" and "founded suspicion" are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is 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. at 417-18, 101 S.Ct. 690 (emphasis added).

The Federal Judicial Circuits, especially along the United States-Mexico border, have been left to fill in the details of the roving patrol jurisprudence enunciated by the Supreme Court. Certainly the Fifth Circuit has shouldered its fair share of the load. As these two cases before the Court will show, the difficulty is in the details.

II. The Fifth Circuit's "Vital Element" and "Fifty Mile" Rules

In the Fifth Circuit, the Brignoni-Ponce factors are evaluated for reasonableness in light of two additional rules: (1) a "vital element" of the Brignoni-Ponce test is whether the agents making the stop have reason to believe that the vehicles came from the border, see United States v. Pallares-Pallares, 784 F.2d 1231, 1233 (5th Cir.1986), and (2) when the stop occurs a substantial distance from the border, defined as over fifty miles, this "vital element" is missing. See United States v. Inocencio, 40 F.3d 716, 722 & nn. 6-7 (5th Cir.1994). If there is no reason to believe that the vehicle has come from the border, i.e., if the "vital element" rule has not been met, all other factors must be examined "charily." See United States v. Pena-Cantu, 639 F.2d 1228, 1229 (5th Cir.1981); Pallares-Pallares, 784 F.2d at 1233. Accordingly, the emphasis under these rules is whether the vehicle originated at the border.

But why is this so? Certainly nowhere in Brignoni-Ponce or Cortez does the Supreme Court suggest in any way that border origination is a "vital element" in the

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inquiry. Nonetheless, by focusing on border origination, the Fifth Circuit appears to have made the "vital element" and "fifty mile" factors more equal than any others in the examination of reasonable suspicion in the roving patrol context. One purpose of this Order is to discuss the problems caused by this "more equal" treatment.

A. The History of the "Vital Element" Rule

Tracing the "vital element" language back to the beginning leads one to United States v. Woodard, where the Fifth Circuit wrote:

As the Court has pointed out in prior cases, a vital element of the test is whether the agent had `reason to believe that the vehicle had come from the border,' Martinez, supra at 1648; accord, Del Bosque, supra at 1252.

United States v. Woodard, 531 F.2d 741, 743 (5th Cir.1976). There are some problems with this formulation. First, neither the Martinez nor Del Bosque opinions employed the words "vital element." See United States v. Martinez, 526 F.2d 954 (5th Cir.1976); United States v. Del Bosque, 523 F.2d 1251 (5th Cir.1975) (per curiam). Nor did these decisions seem to elevate the "vital element" factor in any way. Both decisions addressed the factor of reasonable suspicion in the context of whether the vehicle came from the border, but this factor was not described as a "vital" one. See Martinez, 526 F.2d at 955; Del Bosque, 523 F.2d at 1252.

The Martinez court dealt with a suspect stopped fifty miles north of the border on a road that originated thirty miles north of the border. See Martinez, 526 F.2d at 955. The only thing the Fifth Circuit noted regarding border origination was that "[the Border Patrol] had no reason to believe that the vehicle had come from the border, or that Peralez was violating any law." Id. The Del Bosque court, in a terse opinion, dealt with a suspect stopped sixty miles north of the border after his car set off a "Chekar Device." See Del Bosque, 523 F.2d at 1251. Apparently, the agent testified that the sole reason for the stop was to conduct a citizenship check:

The officer's sole reason for stopping appellant's car was to check his citizenship. The officer had no prior indication that appellant had crossed the border. The single factor that the occupants of a car appear to be of Mexican ancestry does not furnish reasonable grounds to stop the car.

Id. at 1252. In neither Martinez nor Del Bosque did the Fifth Circuit hint that, if the Border Patrol agents had known the vehicle had originated at the border, the results would have been different.

On this language, and no more, the Woodard court elevated the "vital element" factor to preeminence. See Woodard, 531 F.2d at 743. The next decision after Woodard took the dicta a step further. In United States v. Escamilla, the court stated "[o]n three separate occasions, this Court has stressed that a `vital' element of the Brignoni-Ponce test is whether the agents had `reason to believe that the vehicle (in question) had come from the border.'" United States v. Escamilla, 560 F.2d 1229, 1231-32 (5th Cir.1977) (citing Woodard, Martinez and Del Bosque, supra). The statement is, quite simply, not correct. Nevertheless, Escamilla cemented the "vital element" language into the analytical...

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