                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                          June 14, 2006
                                   TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                           Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,

 v.                                                        No. 04-2279
                                                        (D. New M exico)
 AR M AN DO M END EZ,                               (D.Ct. No. CR-04-311 JB)

          Defendant - Appellant.



                              OR D ER AND JUDGM ENT *


Before SE YM OU R, B AL DOC K , and O’BRIEN, Circuit Judges.




               On February 19, 2004, Armando M endez was indicted on one count

of possession with intent to distribute 100 kilograms or more of marijuana in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), one count of conspiracy to

comm it the same in violation of 21 U.S.C. § 846, and one count of possessing a

firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §

924(c)(1)(A )(I), all arising out of a traffic stop near Rodeo, New M exico. Prior to




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
trial, M endez argued the Border Patrol agents lacked reasonable suspicion to

make the stop and moved to suppress all subsequent evidence and statements.

The district court denied the motion. M endez timely appealed. W e exercise

jurisdiction under 28 U.S.C. § 1291 and AFFIRM .

Background:

      On the morning of November 11, 2003, Jeffrey Stevens, a Senior Border

Patrol Agent working an 11:00 p.m. to 7:00 a.m. shift, was traveling southbound

on New M exico Highway 80 near Rodeo, New M exico, approximately forty miles

north of the U.S. border and one mile east of the Arizona state line, looking for

illegal aliens that had been smuggled into the country and recently spotted in the

area. At approximately 6:50 a.m., Agent Stevens saw a Ford Thunderbird with

Arizona license plates traveling north on Highway 80. He stopped his Border

Patrol truck until the Thunderbird passed his location. As the car passed, Agent

Stevens noticed it was riding low, as if carrying excessive weight. He turned his

truck around and followed the Thunderbird to investigate further. W hile

follow ing, Agent Stevens ran a registration check on the Thunderbird’s license

plate and radioed ahead to another Border Patrol officer stationed in the area,

Agent Jose Gonzales. Agent Stevens discontinued his pursuit because his truck

lacked emergency lights or a siren. Agent Gonzales located the Thunderbird at

approximately 7:10 a.m. Agent Gonzales had his headlights on as the

Thunderbird passed his location, and he w as able to discern three occupants.

                                        -2-
Additionally, he saw two large square packages on both sides of the back seat

passenger and also noticed the car appeared heavily loaded. Agent Gonzales

pulled on to the road and began following the Thunderbird. He noticed the trunk

lid was not level and a six-inch piece of twine was hanging out of the trunk.

Agent Gonzales deemed the twine and large packages consistent with narcotics

and marijuana packaging he had encountered in the past.

      Based on the packages and the twine, coupled with the apparent weight of

the vehicle, Agent Gonzales decided to stop the Thunderbird and investigate

further. After he activated his emergency equipment, the Thunderbird pulled

over, and Agent Gonzales approached the car on foot. As he approached, Agent

Gonzales saw a piece of burlap behind the driver’s seat that was consistent with

narcotics packaging and smelled the odor of marijuana. M endez was arrested and

approximately 168 kilograms of marijuana and a loaded handgun were seized.

      After his indictment, M endez moved on M arch 17, 2004 to suppress the

evidence resulting from the stop of his vehicle. On July 14, 2004, after a hearing,

the district court denied M endez’s motion. The district court held “there was

reasonable suspicion to make the stop” under United States v. Brignoni-Ponce,

422 U.S. 873, 884 (1975), and United States v. Arvizu, 534 U.S. 266, 274 (2002).

(R . Vol. III at 114.) M endez entered a conditional guilty plea reserving the right

to appeal the district court’s denial of his suppression motion. On September 13,

2004, M endez was sentenced to 120 months imprisonment. The judgment was

                                         -3-
filed on October 18, 2004. This appeal followed.

Discussion:

      “W ell established standards govern our review of a district court’s ruling

on a motion to suppress.” United States v. Cantu, 87 F.3d 1118, 1120 (10th Cir.

1996). W e consider the evidence in the light most favorable to the prevailing

party, here the government, and accept the district court’s factual findings unless

clearly erroneous. Id.; United States v. Anderson, 114 F.3d 1059, 1063 (10th Cir.

1997). But the “ultimate determination of reasonableness under the Fourth

Amendment is a question of law reviewable de novo.” United States v.

M cKissick, 204 F.3d 1282, 1296 (10th Cir. 2000) (internal quotation omitted).

The defendant bears the burden of establishing the challenged stop violated the

Fourth Amendment. United States v. Long, 176 F.3d 1304, 1307 (10th Cir. 1999).

      “This case returns the court to familiar geographic and legal territory; w e

have frequently been called upon to assess the legality of investigatory stops

made by the Border Patrol near the New M exico-M exico border.” United States

v. M onsisvais, 907 F.2d 987, 989 (10th Cir. 1990). Consistent with the Fourth

Amendments’ prohibition against unreasonable searches and seizures, “Border

Patrol agents ‘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 those vehicles’ occupants may be involved in

criminal activity.” Cantu, 87 F.3d at 1121 (quoting Brignoni-Ponce, 422 U.S. at

                                         -4-
884). Reasonable suspicion does “not rise to the level required for probable

cause, and it falls considerably short of satisfying a preponderance of the

evidence standard.” Arvizu, 534 U.S. at 274. Rather, “reasonable suspicion

represents a ‘minimum level of objective justification.’” United States v. M endez,

118 F.3d 1426, 1431 (10th Cir. 1997) (quoting United States v. Sokolow, 490 U.S.

1, 7 (1989)).

      “Any number of factors may be taken into account in deciding whether

there is reasonable suspicion to stop a car in the border area.” Brignoni-Ponce,

422 U.S. at 884. Officers may consider:

      (1) [the] 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.

M onsisvais, 907 F.2d at 990 (citing Brignoni-Ponce, 422 U.S. at 884-85). W hen

evaluating an officer’s decision to stop a vehicle, a court may not engage in a

“sort of divide - and- conquer analysis” by evaluating and rejecting each factor in

isolation. Arvizu, 534 U.S. at 274; United States v. Gandara-Salinas, 327 F.3d

1127, 1130 (10th Cir. 2003). This is because factors that by themselves may be

“consistent with innocent travel” may collectively amount to reasonable

suspicion. Arvizu, 534 U.S. at 274-75 (quoting Sokolow, 490 U.S. at 9). Rather,



                                          -5-
“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.” United States v. Cortez, 449 U.S. 411, 417-18 (1981). “In all situations

the officer is entitled to assess the facts in light of his experience in detecting

illegal entry and smuggling.” Brignoni-Ponce, 422 U.S. at 885.

       An examination of the eight Brignoni-Ponce factors - seven of w hich are

present in this case - makes clear the district court's decision was correct. 1 W e

address the applicable factors in turn. First, we consider the characteristics of the

area in which the vehicle was encountered. It is uncontested that New M exico

Highway 80, originating in the border town of Douglas, Arizona, and running

north through the sparsely populated “boot heel” of southwestern New M exico

and the city of Rodeo, is a known smuggling route. See United States v.

Quintana-Garcia, 343 F.3d 1266, 1268 (10th Cir. 2003) (crediting testimony that

New M exico H ighway 26 is a known smuggling route); United States v. Barbee,

968 F.2d 1026, 1029 (10th Cir. 1992) (crediting officers’ uncontested testimony

that old New M exico Highway 52 is a known smuggling route); but see

M onsisvais, 907 F.2d at 992 (finding that the absence in the record of any detail




       1
          There is no evidence in the record to support the sixth factor, i.e., that the driver
of the vehicle was behaving in a suspect manner or attempting to evade the Border Patrol
officers.

                                              -6-
as to the characteristics of the same area coupled with statements by the officer

that illegal smuggling “sometimes” occurred on New M exico Highway 85

weighed against finding reasonable suspicion). 2    This conclusion is supported by

the arrest the day before near Rodeo of nineteen illegal aliens smuggled into the

country in a van. Officer Stevens also testified the Rodeo area sees an increase in

illegal smuggling operations when the Arizona branch of the Border Patrol

increases its enforcement efforts, as was the case here, because smugglers attempt

to avoid detection in that area by taking alternate routes through New M exico.

      Second, we consider the proximity to the border of the area where the stop

was made. “W hile the Supreme Court has cautioned that ‘roads near the border

carry not only aliens seeking to enter the country illegally, but a large volume of

legitimate traffic as well,’ proximity to the border may be considered as a factor

in the reasonable suspicion calculus.” United States v. Diaz-Juarez, 299 F.3d

1138, 1142 (9th Cir. 2002) (quoting Brignoni-Ponce, 422 U.S. at 882).

Obviously, the closer the stop occurs to the border, the more weight we accord to



      2
        In fact, most north-running highways in southern New Mexico have been
characterized as known smuggling routes. See, e.g., Quintana-Garcia, 343 F.3d at 1268
(New Mexico Highway 26, running from Demming to Hatch, New Mexico, is a known
smuggling route); United States v. Lopez-Martinez, 25 F.3d 1481, 1482 & 1485 (10th Cir.
1994) (same as applied to New Mexico Highway 185 near Radium Springs, New
Mexico); Barbee, 968 F.2d at 1029 (same as applied to old New Mexico Highway 52
near Truth or Consequences, New Mexico); United States v. Pollack, 895 F.2d 686, 690
(10th Cir. 1990) (same as applied to New Mexico Highway 85 near Truth or
Consequences, New Mexico); United States v. Leyba, 627 F.2d 1059, 1063 (10th Cir.
1980) (same as applied to U.S. Highway 180 north of Cliff, New Mexico).

                                          -7-
this factor. Here, the stop occurred approximately forty miles from the

U.S.-M exico border, and approximately fifty miles from the origination point of

Highway 80 in the border town of Douglas, Arizona. A distance of fifty miles or

less has routinely been held sufficiently close to the border to contribute to a

finding of reasonable suspicion. 3 See Quintana-Garcia, 343 F.3d at 1272 (fifty to

sixty miles from the border); United States v. Barron-Cabrera, 119 F.3d 1454,

1458 n.4 & 1460 (10th Cir. 1997) (forty-five miles from the border); United

States v. Lopez-M artinez, 25 F.3d 1481, 1485 (10th Cir. 1994) (sixty miles from

the border); accord United States v. Venzor-Castillo, 991 F.2d 634, 635 & 639

(10th Cir. 1993) (agent lacked reasonable suspicion to conduct a stop 235 miles

from border).

       Third, we consider the usual traffic patterns on the road where the stop was

made. Given the remote location of Rodeo, most traffic on Highway 80 tends to

be local. Agent Stevens testified he did not recognize the Thunderbird as a local

vehicle and it carried Arizona plates. Agent Stevens also testified it was unusual

for non-local cars to travel that stretch of Highway 80 around 7:00 a.m. W hile

the presence of a foreign license plate would constitute stronger support of a



       3
        “We also find it instructive, although not dispositive, that federal law permits
Border Patrol agents to make warrantless stops within a ‘reasonable distance’ from the
border.” Quintana-Garcia, 343 F.3d at 1272 n.6 (quoting 8 U.S.C. § 1357(a)(3)); see
also Leyba, 627 F.2d at 1065; United States v. Venzor-Castillo, 991 F.2d 634, 637-40
(10th Cir. 2001). Federal regulations define “reasonable distance” as, inter alia, 100
miles from the border. 8 C.F.R. § 287.1(a)(2).

                                            -8-
finding of reasonable suspicion, see Quintana-Garcia, 343 F.3d at 1268 (New

M exico stop of a vehicle with a M exico licence plate), we have also found the

presence of an out-of-state license plate from a neighboring state can contribute to

such a finding. See Barbee, 968 F.2d at 1029 (New M exico stop of a vehicle with

Texas plates); Cantu, 87 F.3d at 1122 (same); but see United States v. M artinez-

Cigarroa, 44 F.3d 908, 911 (10th Cir. 1995) (“[W]hile out-of-state license plates

may be a relevant consideration in some circumstances, this factor in and of itself

is not significantly probative of illegal activity and adds little to the reasonable

suspicion equation.”).

      In this case, the significance of an Arizona license plate is diminished due

to Rodeo’s proximity to the Arizona state line. Leyba, 627 F.2d at 1064 (“That

the vehicle bore out-of-state plates, as do 50 percent of all vehicles in which

aliens are apprehended, is of little significance here simply because Arizona is

relatively near.”); accord United States v. Espinosa-Alvarado, 302 F.3d 304, 306

(5th Cir. 2002) (car with New M exico plates stopped over forty-five miles from

the Texas-New M exico border). Even so, it is still “entitled to some limited

consideration because [the] agent . . . did not recognize the vehicle as local traffic

from the area.” Id. Additionally, the significance of the Arizona license plate is

increased in this case due to the fact that Border Patrol agents were conducting

increased searches in Arizona, and New M exico border patrol agents could

consequently expect increased smuggling attempts redirected from Arizona.

                                           -9-
Accord M onsisvais, 907 F.2d at 991 (“Although Arizona cars must certainly be

less common on this stretch of road than those bearing New M exico plates, we

cannot find any basis in the record from which to conclude that Arizona-plated

vehicles are any more likely to be transporting aliens . . . than are vehicles

bearing the license plates of New M exico, or, for that matter, Texas or

Colorado.”) (emphasis added).

      Fourth, w e consider the agents’ previous experience with alien traffic. A t

the time of the arrest, Agents Stevens and Gonzales had been with the Border

Patrol and stationed at Lordsburg, New M exico, covering the Rodeo area, for

three and five years, respectively. See Barron-Cabrera, 119 F.3d at 1461

(officer’s three and a half years of experience as a border patrol agent in the area

satisfied the fourth prong of Brigoni-Ponce). Both testified they had extensive

training in and experience with detecting and stopping illegal smuggling.

Additionally, the agents’ shift changed at 7:00 a.m., and the agents were aw are

that smugglers often try to time their shipments around shift changes. See

Espinosa-Alvarado, 302 F.3d at 305 n.2 (“Smugglers often wait for a shift

change to smuggle narcotics or aliens into the country.”). This is supported in

this case by the arrest the day before of nineteen illegal aliens apprehended near

Rodeo around 7:00 a.m.

      Fifth, we consider any information the agents might have had about recent

illegal border crossings in the area. Again, both Agent Stevens and Agent

                                         -10-
Gonzales were aware that almost twenty-fours hours earlier a van-load of illegal

aliens had been apprehended near Rodeo. Additionally, the morning of M endez’s

arrest, Agent Stevens was searching for another group of aliens seen in the area.

M oreover, as discussed above, Agents Stevens and Gonzales had reason to

suspect an increased influx of illegal trafficking redirected from Arizona due to

increased border patrols in that state.

      Sixth, we consider any aspects of the vehicle itself that might support a

finding of reasonable suspicion. Again, the presence of an out-of-state plate,

while not strongly persuasive, supports reasonable suspicion. See United States v.

Neufeld-Neufeld, 338 F.3d 374, 376-77 (5th Cir. 2003) (affirming the denial of a

motion to suppress where the vehicle was, inter alia, not registered locally);

Diaz-Juarez, 299 F.3d at 1140-43 (affirming the denial of a motion to suppress

where the defendant's vehicle was, inter alia, not registered in the area). M ore

importantly, we note Agent Gonzales’ testimony that the trunk of the vehicle was

not level and appeared to have been forced shut. Additionally, twine, consistent

with drug packaging, was hanging out of the trunk.

      Finally, we consider whether the vehicle appeared heavily loaded. Both

agents testified the Thunderbird was riding low and appeared heavily loaded.

Agent Stevens testified that when he first saw the car, “it appeared to be riding

lower in the rear than normal,” based on “the space between the tire and the

fender.” (R. Vol. III at 13, 14.) Agent Gonzalez testified specifically that the car

                                          -11-
“was bouncing repeated[ly],” and that “the rear tire was almost touching the . . .

fender.” (Id. at 51.) Agent Gonzales testified he saw a passenger in the back seat

of the car as well as two large packages when the car passed his position. See

United States v. Sperow, 551 F.2d 808, 810 (10th Cir. 1977) (stop of a truck with

a camper that appeared heavily loaded in New M exico near the border was

justified).

       Our review of the facts of this case in light of the Brignoni-Ponce factors

leads us to conclude that under the totality of the circumstances, Agent Gonzales’

stop of M endez’s vehicle was supported by reasonable suspicion. W hile “any one

of these factors is not by itself proof of any illegal conduct and is quite consistent

with innocent travel, . . . taken together they amount to reasonable suspicion.”

Quintara-G arcia, 343 F.3d at 1274 (internal quotations omitted).

A FFIRME D.

                                        Entered by the C ourt:


                                        Terrence L. O ’Brien
                                        United States Circuit Judge




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