United States v. Cervantes

• Decision Date: 14 August 2015
• Docket Number: No. 14–50208.,14–50208.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Luis Gerard CERVANTES, also known as Luis Gonzalez Cervantez–Martinez, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

797 F.3d 326

UNITED STATES of America, Plaintiff–Appellee

v.Luis Gerard CERVANTES, also known as Luis Gonzalez Cervantez–Martinez, Defendant–Appellant.

No. 14–50208.

United States Court of Appeals, Fifth Circuit.

Aug. 14, 2015.

Joseph H. Gay, Jr., Assistant U.S. Attorney, Ellen A. Lockwood, Assistant U.S. Attorney, San Antonio, TX, for Plaintiff–Appellee.

Damian Castillo, Esq., Midland, TX, for Defendant–Appellant.

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

Before SMITH, PRADO, and OWEN, Circuit Judges.

Opinion

OWEN, Circuit Judge.

Luis Gerard Cervantes appeals his conviction on the ground that the Border Patrol agents who conducted the traffic stop that led to his arrest lacked reasonable suspicion and violated the Fourth Amendment. The district court denied Cervantes's motion to suppress. We affirm.

I

The relevant facts are not in dispute. On a Wednesday in early October, at approximately 8:30 a.m., Cervantes was driving a Chevrolet Trailblazer eastbound on Interstate 20 (I–20) near Odessa, Texas, with five passengers. That morning, Border Patrol Agents David Collier and Carlos Ramirez were on roving patrol and had parked in the median of I–20 when Cervantes's vehicle passed them. Collier noticed that the Trailblazer was sagging in the rear or perhaps overloaded, and both agents noticed that the vehicle had multiple occupants. The agents decided to investigate further.

As the agents neared Cervantes, he switched from the left lane to the right lane and began traveling behind an eighteen-wheeler semi-truck that was being driven about ten to fifteen miles under the seventy-five-miles-per-hour speed limit. The agents considered this odd behavior because there were no vehicles in the left lane ahead of the Trailblazer when it slowed its speed and pulled behind the eighteen-wheeler. As the agents approached Cervantes's vehicle, they saw that a passenger was in the rear cargo area of the vehicle where there was no seat. They then checked the vehicle's records and learned that it was registered in Morton, Texas, a town north of Odessa. The agents drove their patrol car parallel to Cervantes's and observed that the rear passengers were “dirty” and did not appear to have shaved or bathed in several days, while the driver and front passenger appeared “clean.” Ramirez also noticed that the rear passengers were wearing dirty jackets and heavy clothing while the front passenger and Cervantes were wearing short sleeves. The agents themselves were attired in short sleeves, which they considered appropriate for the weather that day. While driving next to Cervantes's vehicle, the agents honked six times. Cervantes did not respond to the honking but looked forward and kept his hands tightly on the steering wheel. Neither Cervantes nor his front-seat passenger looked in the direction of the agents' vehicle despite the agents' attempts to obtain their attention.

Collier and Ramirez conducted a traffic stop. As Officer Collier approached the Trailblazer, he saw burlap backpacks, one of which was torn, and he saw small brick bundles wrapped with brown tape. These bundles were consistent with the way in which illegal drugs were often packaged and smuggled, and he believed the bundles contained marijuana. Ultimately, it was determined that approximately 170 pounds of marijuana in the backpacks that had been carried across the border by the rear passengers. Cervantes and all of the passengers were arrested and charged with aiding and abetting possession with intent to distribute marijuana.

Cervantes filed a motion to suppress alleging he was stopped without reasonable suspicion in violation of the Fourth Amendment. After a hearing, the district court denied the motion. Cervantes entered a conditional guilty plea and reserved his right to appeal the ruling on his motion to suppress. The district court sentenced Cervantes to fifty-one months in prison and three years of supervised release. Cervantes appeals the denial of his motion to suppress.

II

In reviewing the district court's disposition of the motion to suppress, we review legal conclusions de novo, including the conclusion that Collier and Ramirez had reasonable suspicion to stop Cervantes, and factual findings for clear error.¹ We view the evidence presented at a pretrial hearing on a motion to suppress in “the light most favorable to the prevailing party,” in this case the Government.²

III

Border Patrol agents on roving patrol “may detain vehicles for investigation only if they are aware of specific, articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicle is involved in illegal activities.”³ We weigh the factors outlined by the Supreme Court in Brignoni–Ponce⁴ to determine if reasonable suspicion existed to stop a vehicle in a border area.⁵ The factors that may be considered include:

(1) the area's proximity to the border; (2) characteristics of the area; (3) usual traffic patterns; (4) the agents' experience in detecting illegal activity; (5) behavior of the driver; (6) particular aspects or characteristics of the vehicle; (7) information about recent illegal trafficking of aliens or narcotics in the area; and (8) the number of passengers and their appearance and behavior.⁶

We look to the totality of the circumstances, and not every factor must weigh in favor of reasonable suspicion for it to be present.⁷ “Factors that ordinarily constitute innocent behavior may provide a composite picture sufficient to raise reasonable suspicion in the minds of experienced officers.”⁸

The Supreme Court has explained that evaluation of these “factors in isolation from each other does not take into account the ‘totality of the circumstances,’ as our cases have understood that phrase.”⁹ The Supreme Court has rejected the proposition that if behavior was “itself readily susceptible to an innocent explanation [the behavior] was entitled to ‘no weight.’ ”¹⁰ The Supreme Court has observed that

Terry ... precludes this sort of divide-and-conquer analysis. The officer in Terry observed the petitioner and his companions repeatedly walk back and forth, look into a store window, and confer with one another. Although each of the series of acts was “perhaps innocent in itself,” we held that, taken together, they “warranted further investigation.”¹¹

The Supreme Court held in United States v. Sokolow that factors which by themselves were “quite consistent with innocent travel” collectively amounted to reasonable suspicion.¹²

The agents encountered Cervantes's vehicle near Penwell, Texas, on I–20 traveling east toward Odessa. In determining whether agents had reason to believe that the occupants of a vehicle had recently crossed the border, our court has said that proximity to the border is “a paramount factor in determining reasonable suspicion,”¹³ and when a stop takes place more than fifty miles from the border, “we look at the remaining factors most carefully to ensure the stop complied with the ... Fourth Amendment.”¹⁴ The distance of this stop from the border between Mexico and the United States weighs against reasonable suspicion.

That the stop occurred more than fifty miles from the border is not dispositive, however.¹⁵ We have said that “even where a vehicle is beyond the fifty mile benchmark, the fact that the northbound vehicle was traveling from the direction of the Mexico–United States border can be a legitimate factor when viewed in conjunction with other factors.”¹⁶ There are other factors present in this case that support reasonable suspicion.

Though the point at which the vehicle was stopped was approximately 200 miles from the border between Mexico and Texas, the district court found that Interstate 20, on the west side of Odessa, where this stop occurred, “is well known for its prevalence of drug and alien smuggling.” The evidence in the record supports that finding. In addition, Officer Collier testified that he had made more than 100 stops in the area west of Odessa on Interstate 20 that had resulted in discovering undocumented aliens and illegal drugs on “regular occasions.”

Our court has also recognized that this portion of Interstate 20 is “a favored route for illegal alien smugglers.”¹⁷ In another decision from this court, we recognized that there was evidence that the same location at which Cervantes was stopped, on Interstate 20 near Penwell, Texas, was “notorious for alien smuggling and narcotics.”¹⁸

In United States v. Orozco and United States v. Morales, this court determined that reasonable suspicion existed for stops on I–20 near Penwell, Texas, where Cervantes was stopped. In Orozco, the driver was traveling eastbound on I–20 at about 9:30 a.m. on a Sunday in a pick-up truck.¹⁹ Orozco, the front passenger, was slumped over, and the driver was looking straight ahead.²⁰ The bed of the truck was covered with a blue tarp.²¹ The truck was riding low and weaving back and forth on the road.²² The agent began following the truck, pulled up next to the truck, and honked his horn.²³ The driver did not look at the agent, although the agent was not sure if the driver heard the honking.²⁴ The agent noticed that the spare tire was in the backseat with a jacket draped over it, which indicated to the agent that there was something in the truck bed.²⁵ The agent testified that “he had stopped numerous loads of aliens on that stretch of road, generally between 9:00 and 10:00 in the morning.”²⁶

The Orozco court stated that because the stop took place between 200–300 miles from the border, the proximity factor did not “cut[ ] in favor of a finding of reasonable suspicion.”²⁷ However, other factors weighed in favor of reasonable suspicion: (1) the area of I–20 was known for smuggling, and the agent “had personally captured approximately 20 loads of aliens in the same area over the previous five month period”;²⁸ (2) the agent testified that “the majority of smugglers passed through that particular stretch of...