United States v. Freeman

• Decision Date: 25 January 2019
• Docket Number: No. 17-40739,17-40739
• Parties: UNITED STATES of America, Plaintiff-Appellant v. Jeffrey Louis FREEMAN, Defendant-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

914 F.3d 337

UNITED STATES of America, Plaintiff-Appellant

v.Jeffrey Louis FREEMAN, Defendant-Appellee

No. 17-40739

United States Court of Appeals, Fifth Circuit.

FILED January 25, 2019

Lauretta Drake Bahry, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellant.

Marjorie A. Meyers, Federal Public Defender, John Moreno Parras, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellee.

Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.

JAMES E. GRAVES, JR., Circuit Judge:

This is an interlocutory appeal of the grant of a motion to suppress. Defendant-Appellee Jeffrey Louis Freeman ("Freeman") was stopped twice over the course of several months while driving his truck along Farm-to-Market Road 2050 ("FM 2050") near the Texas-Mexico border, once by a county deputy and once by U.S. Border Patrol Agent Carlos Perez. Freeman was charged with conspiracy to transport an illegal alien within the United States, 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(I), and transportation of an alien within the United States for financial gain, 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(II). Freeman filed a motion to suppress evidence obtained from both stops. The magistrate judge held an evidentiary hearing on the motion and recommended the district court grant Freeman's motion as to the first stop but deny his motion as to the second stop. The district court adopted the magistrate judge's recommendation as to the first stop, but not as to the second stop, granting Freeman's motion to suppress as to both stops. The Appellant-Government appeals the district court's ruling as to the second stop only. For the reasons discussed below, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Background of the Area and of Agent Perez

Agent Perez's testimony made up a significant portion of the suppression hearing before the magistrate judge. He testified that he had been a Border Patrol agent at the Freer, Texas immigration checkpoint for over eight years. His duties at the checkpoint consisted of working the inspection lanes and conducting immigration inspections on vehicles that approach the checkpoint. Agent Perez testified that the Freer checkpoint is about 50 miles from the border of the United States and Mexico and approximately 43 miles from Laredo, Texas. It sits on U.S. Highway 59, just north of where FM 2050 dead-ends into Highway 59. If a motorist traveling north on Highway 59 turned right (south) onto FM 2050, he would avoid the Freer checkpoint. Agent Perez testified that turning right onto FM 2050 from Highway 59 will add about an hour onto a trip from Laredo to Houston. It is undisputed that FM 2050 is known for alien and contraband smuggling.

Nevertheless, there are legitimate reasons to be on FM 2050. Agent Perez testified that there are homes, ranches, and businesses along the road. When pressed by the magistrate judge, he guessed there were perhaps a dozen homes, in addition to a wind farm, oil and gas concerns, and other ranches. Agent Perez testified he was familiar with some of the vehicles belonging to homeowners and people who worked on the road, but he was not familiar with all the vehicles. Over the eight years that he worked at the Freer checkpoint, Agent Perez had driven on FM 2050 "numerous times," sometimes "on a daily basis."

Agent Perez confirmed that no vehicle is stopped prior to turning down FM 2050, but once a vehicle makes the turn, Border Patrol "attempt to chase down the vehicle and conduct a roving stop" to see if there are any immigration violations occurring. When asked by the Government if the agents were "actually stopping every single vehicle," Agent Perez answered, "Yes, sir."¹ Agent Perez explained these stops generally transpired as follows: an agent on the primary inspection lane, upon seeing a vehicle turn south on FM 2050, alerts an agent inside the checkpoint who comes out and attempts to chase down the vehicle. Once the pursuing agent finds the vehicle matching the description of the vehicle the primary agent called out, he attempts to run a registration check to determine where the vehicle is from, as it is uncommon for vehicles from out of the area to be traveling down FM 2050. While following the vehicle, the agent will observe the vehicle speed, "the driving of the vehicle," and how the driver is reacting to being pursued.

Agent Perez estimated the Border Patrol made approximately ten to twenty roving stops per week on FM 2050. He estimated that he had only conducted approximately twenty to thirty stops throughout his eight years there, and only two or three of those stops resulted in seizures.

B. The February 13, 2017 (Second) Stop

On February 13, 2017, Agent Perez was working inside the Freer checkpoint rather than on the inspection lanes. Around 4:10 p.m., an agent called out that a white Chevy pickup truck turned onto FM 2050 and Agent Perez and his partner got into the pursuit vehicle and attempted to chase down the truck. Agent Perez estimated it took him and his partner about twenty seconds to walk to their vehicle, and another ten seconds to turn onto FM 2050. Agent Perez thought it took him "[p]erhaps five minutes" to catch up to the truck and that he traveled "about over 100 miles an hour" to reach it, although he had slowed down to "[p]erhaps 70 miles" per hour when he caught up to the truck. While Agent Perez testified that he checked his odometer frequently, he also stated twice that he was not sure if the truck was speeding.

Agent Perez noted the road was windy and hilly, but that it appeared to him the truck was swaying side to side within the lane and creating dust clouds from driving on the soft shoulder of the road. While Agent Perez testified he couldn't remember any construction signs on the road at the time of the stop, the Government stipulated before the hearing began that the road was under construction.

Prior to conducting the stop, Agent Perez testified his partner contacted radio dispatch to run a check on the truck's paper license plate. He initially testified that the paper plate made no difference to him, although after considerable prompting by the magistrate judge, Agent Perez stated that paper license plates are often used by smugglers to avoid suspicion or inspection. What did make a difference to Agent Perez was the fact that the vehicle was registered to an individual (Freeman, it turned out) out of Houston, Texas. Agent Perez noted it is uncommon to see vehicles based out of Houston on FM 2050 because it is not a direct route to Houston. However, nothing else stood out to Agent Perez about the truck; it was the type of vehicle commonly used by oil and gas companies on FM 2050.

While in pursuit of Freeman, Agent Perez could not see into the back of the truck but was able to see Freeman's face in the side view mirror. He thought Freeman appeared to be nervous because he seemed to be glancing into the side mirror several times. Agent Perez activated his emergency lights and conducted a patrol stop. Agent Perez testified the stop occurred approximately nine miles from the checkpoint, but during the hearing defense counsel presented Agent Perez with maps indicating the stop was closer to 7.6 miles from the checkpoint. The stop occurred approximately nine and a half minutes after Freeman's truck was called out. After Agent Perez stopped Freeman, Agent Perez's partner discovered there was a passenger in Freeman's truck, Ms. Miriam Edith Rivera-Quintero. Ms. Rivera-Quintero did not have any legal status to be in the United States.

Ms. Rivera-Quintero testified at the suppression hearing that Freeman appeared to be driving at a normal rate of speed and that he only veered off the road when he was stopped by the agents. She also believed his behavior to be normal and that everything seemed to be fine prior to the car being stopped and the policemen coming up to the truck. However, Ms. Rivera-Quintero testified that she looked at pictures on her phone for much of the trip in an effort to calm herself.

C. The Magistrate Judge's Report and Recommendation and the District Court's Order

The magistrate judge issued a written report and recommendation, recommending the district court, after an independent review of the record, grant in part Freeman's motion to suppress as it related to the first stop, but deny in part his motion as it related to the February 13, 2017 stop. Freeman filed timely objections, and the district court reviewed the entire record de novo . The district court agreed with the recommendation as to the first stop, but disagreed with the recommendation as to the February 13th stop, finding the analysis in Freeman's objections to be persuasive. While the district court noted that Agent Perez admitted to conducting roving patrol stops of all vehicles turning onto FM 2050 from Highway 59, the court said its decision did not hinge solely on that admission and was merely one aspect taken into consideration. At a later hearing regarding the detention of a material witness pending the instant appeal, the district court stated it found Ms. Rivera-Quintero's testimony about Freeman's driving to be truthful. The district court also found that "the math did not add up" with respect to Freeman's speed, and that the agents never actually witnessed Freeman speeding. The district court found there to be "nothing evasive about the way that he was driving," and that the dust being kicked into the air was "as good as it got." The district court characterized the stop as a "fishing expedition" and commented that had the agents been a little more patient and stayed behind the vehicle longer, they could probably have developed reasonable suspicion.

The Government appeals the district court's grant of Freeman's motion to suppress as it relates to the February 13th stop.

II. STANDARD OF REVIEW

In considering a district court's ruling on a motion to suppress, we review the...