U.S. v. Villalobos, 97-50640

• Decision Date: 19 November 1998
• Docket Number: No. 97-50640,97-50640
• Citation: 161 F.3d 285
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bivian VILLALOBOS, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 285

161 F.3d 285

UNITED STATES of America, Plaintiff-Appellee, v. Bivian VILLALOBOS, Jr., Defendant-Appellant.

No. 97-50640.

United States Court of Appeals, Fifth Circuit.

Nov. 19, 1998.

Joseph H. Gay, Jr., United States Attorney, San Antonio, TX, Mark Randolph Stelmach Assistant U.S. Attorney, Austin, TX, for Plaintiff-Appellee.

Philip J. Lynch, Henry Joseph Bemporad, San Antonio, TX, for Defendant-Appellant.

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

Before KING, GARWOOD and HIGGINBOTHAM, Circuit Judges.

KING, Circuit Judge:

Defendant-Appellant Bivian Villalobos, Jr., appeals his conditional plea of guilty on the grounds that the district court erred in denying his motion to suppress evidence obtained as the result of an allegedly unconstitutional stop by a United States Border Patrol agent. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case concerns a Border Patrol stop on Highway 67, which runs north from the Presidio, Texas port of entry to the United States to Shafter, Texas, a small ex-mining community, and then to Marfa, Texas. Two numbered roads intersect Highway 67. Ranch Road 170 runs along the United States-Mexico border, intersecting Highway 67 at Presidio. Ranch Road 169 intersects Highway 67 about seven miles south of Marfa. The terrain from Presidio to Shafter consists of rugged desert and mountains; the thirty-odd miles from Shafter to Marfa are primarily rolling hills. This area of far West Texas is occupied mainly by large ranches and is extremely sparsely populated. Highway 67 is a known alien and drug trafficking route, especially late at night.

During the early morning hours of March 14, 1997, United States Border Patrol Agent Joe Threadgill was stationed at a Border Patrol checkpoint about fifty-nine miles north of the border and five miles south of Marfa, Texas, on Highway 67. The checkpoint was closed at the time, but at about 1:15 a.m., Threadgill received a call from the Presidio port of entry informing him that a light blue Chrysler, with Texas license plate number 397XDL, had just entered the United States and "would be a good check for narcotics if it came north." ¹ Threadgill radioed this information to Border Patrol Agent Rodney Hall, who was observing traffic on Highway 67 approximately twelve to fifteen miles south of the Marfa checkpoint. At about 2:20 a.m., Hall noticed two vehicles approaching his location. Pulling out to the edge of the highway, he illuminated the first vehicle with his headlights as it passed and noted that it resembled the light blue Chrysler that Threadgill had described. Hall was able to pull in behind the first car because the two vehicles were traveling about a quarter of a mile apart, but as soon as he did so, the second vehicle decelerated and fell back a mile or more.

Hall verified that the license plate number of the first car matched the number that Threadgill had relayed to him. He also advised Threadgill that he was following the Chrysler and that he believed that the second vehicle was traveling with it. Hall testified at the suppression hearing that smugglers often used a lead car-load car arrangement, in which two vehicles travel together so that the first vehicle can drive ahead to serve as a scout for the car carrying the contraband. Upon hearing this news, Threadgill left the checkpoint and drove south to meet Hall, stopping at the intersection of Highway 67 and Ranch Road 169, about four miles south of the checkpoint. Threadgill illuminated the three vehicles with his headlights as they passed and noticed that the third vehicle, the vehicle originally following the Chrysler, was a "brown stake-bed Ford pickup" truck. He could not, however, see into the truck's cab because the windows were darkly tinted. Although he considered running a vehicle registration check, he ultimately concluded that he would be unsuccessful because the truck had temporary paper tags. Hall testified that the tags were "another indicator to us that something could possibly be wrong" because smugglers often use vehicles with temporary tags. The agents then decided that they would pull over both vehicles when they reached the Marfa checkpoint.

Hall pulled over the Chrysler; Threadgill stopped the truck. Threadgill informed the driver of the truck, later identified as Bivian Villalobos, Jr., that he was an immigration officer and that he wanted to check the driver's citizenship. Villalobos produced a driver's license, stated that he was a United States citizen, and, like the driver of the Chrysler, orally consented to a canine sniff of his vehicle. The dog alerted to both vehicles, and although no drugs were found in the Chrysler, the agents discovered sixty bundles (about 133 pounds) of marijuana hidden in the frame of the truck.

Villalobos was charged with possession with intent to distribute marijuana, a violation of 21 U.S.C. § 841(a)(1). At a pretrial suppression hearing, the district court concluded that the stop of the truck was supported by reasonable suspicion because of the time of night, the proximity of the two vehicles as they traveled on a highway known as an illegal alien and narcotic trafficking route, the truck's paper tags, and the very dark tint on the truck's windows. Villalobos then entered a conditional guilty plea, reserving his right to appeal the district court's denial of his motion to suppress.

II. STANDARD OF REVIEW

We review the district court's factual findings for clear error, viewing the evidence presented at a pretrial suppression hearing in the light most favorable to the prevailing party, in this case the government. See United States v. Cardona, 955 F.2d 976, 977 (5th Cir.1992). We will not say that a finding is clearly erroneous unless we are left with the definite and firm conviction that a mistake has been committed. See United States v. Casteneda, 951 F.2d 44, 47 (5th Cir.1992) (citing United States v. Fernandez, 887 F.2d 564, 567 (5th Cir.1989)). We review de novo, however, conclusions of law derived from the district court's factual findings, such as the determination that reasonable suspicion justified the investigatory stop of Villalobos's vehicle. See United States v. Inocencio, 40 F.3d 716, 721 (5th Cir.1994) (citing Cardona, 955 F.2d at 977).

III. DISCUSSION

Under United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), and United States v. Cortez, 449 U.S. 411, 421-22, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), Border Patrol agents on roving patrol may stop a vehicle only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that that particular vehicle is involved in illegal activity. The relevant factors include: (1) the characteristics of the area in which the agents encounter the vehicle; (2) the previous experience of the arresting agents with criminal activity; (3) the proximity of the area to the border; (4) the usual traffic patterns on the road in question; (5) information about recent illegal trafficking in aliens or narcotics in the area; (6) the appearance of the vehicle; (7) the behavior of the vehicle's driver; and (8) the number, appearance, and behavior of the passengers. See Brignoni-Ponce, 422 U.S. at 884-85, 95 S.Ct. 2574; United States v. Nichols, 142 F.3d 857, 865 (5th Cir.1998) (quoting Inocencio, 40 F.3d at 722). Reasonable suspicion is not limited to an analysis of any one factor. See Inocencio, 40 F.3d at 722. Instead, since "reasonable suspicion" is a fact-intensive test, each case must be examined from the "totality of the circumstances known to the agent, and the agent's experience in evaluating such circumstances." Casteneda, 951 F.2d at 47.

We first consider the characteristics of the area in which the agents encountered Villalobos's vehicle and the proximity of that area to the border. The record shows that the area between Presidio and Marfa was both close to the border and frequented by border traffic. Agent Threadgill testified that this region was a "border area," a description further borne out by the Border Patrol's decision to maintain a permanent checkpoint at Marfa. Moreover, the road on which Villalobos was driving led directly from the border and was intersected only by other roads leading to the border. Villalobos was relatively close to the border when Agent Hall first noticed him. This court previously has determined that vehicles traveling more than fifty miles from the border usually are a "substantial distance" from the border. See Inocencio, 40 F.3d at 722 n. 7 (internal quotes omitted). In this case, Villalobos's truck was about thirty-six miles from the border--well under the benchmark fifty miles--when Hall first spotted it. Although the agents did not stop the truck until the Marfa checkpoint, more than fifty miles from the border, their uncontroverted testimony reveals that for safety reasons, they chose to wait until they reached a lighted area to investigate further. In short, Villalobos was unquestionably traveling through an area heavily traversed by border traffic, even closer to the border than a checkpoint designed to intercept illegal international smuggling.

Nevertheless, Villalobos contends that the characteristics of the area do not support any inference that he was involved in illegal activity because he could have been returning from Big Bend National Park or traveling from one of the towns along Highway 67. His first argument is unavailing, however, because Highway 67 is a substantial distance from the southwestern edge of the park. The likelihood that a driver proceeding north on Highway 67 at 2:20 a.m. is a tourist returning from Big Bend is thus considerably lower here than in the cases Villalobos cites, which concern stops on Highways 118 and 385, routes that lead directly out of Big Bend. See Rodriguez-Rivas, 151 F.3d at 378; United States v. Jones, 149 F.3d 364,...