                           UNITED STATES COURT OF APPEALS
                                FOR THE FIFTH CIRCUIT

                                    _____________________

                                         No. 99-51183
                                    _____________________

                               UNITED STATES OF AMERICA,

                                                                                   Plaintiff-Appellant,
                                            VERSUS

                               JESUS BARCENAS-RODRIGUEZ

                                                                 Defendant-Appellee.
                   _______________________________________________

                           Appeal from the United States District
                          Court for the Western District of Texas,
                                      Del Rio Division
                                 USDC No. 99-CR-416-1
                   _______________________________________________

                                 December 19, 2000
Before JOLLY and DAVIS, Circuit Judges, and RESTANI, Judge.*

PER CURIAM**:

       Defendant Jesus Barcenas-Rodriguez was charged with two counts of alien smuggling, in

violation of 8 U.S.C. § 1324(a)(1)(A)(ii) & (B)(i) (1994). Upon Barcenas’ objections to the

Magistrate Judge’s recommendation that defendant’s motion to suppress evidence for lack of a

reasonable suspicion to stop a vehicle be denied, the District Court granted defendant’s motion.



       *
               Judge, U.S. Court of International Trade, sitting by designation.
       **
               Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.

                                                -1-
The Government now appeals the District Court’s suppression order as authorized by 18 U.S.C. §

3731, which serves as the basis for this court’s exercise of jurisdiction. See United States v.

Smith, 135 F.3d 963, 967-68 (5th Cir. 1998).1



                                            A. FACTS

       On May 26, 1999, Border Patrol Agent Gabriel Pinon was working a roving border patrol

assignment out of the Uvalde Border Patrol Station. At the time, Pinon had been employed by

the Border Patrol for fourteen months, during which period he had been involved in 10 to 15

successful arrests and 30 to 35 stops that did not result in arrests. Pinon was working the 11:00

P.M. to 7:00 A.M. shift and was patrolling Highway 90 in the Sabinal area of Texas. Highway 90

is a direct route coming from the border through Uvalde to San Antonio, and through Austin,

Houston, and Dallas. Traffic on Highway 90 that night was very light, consisting mainly of 18-

wheelers with a passenger car driving by approximately once every ten minutes.

       At approximately 1:00 A.M., Pinon had his marked vehicle parked, with its headlights on,

facing oncoming traffic. A black Chevrolet Suburban approached Pinon, and as it passed, he was

able to see clearly the interior compartment. Pinon saw only two occupants, both sitting in the

front seats. Pinon also noted that the Suburban appeared to be heavily loaded, with the back

riding at a low angle. When the vehicle passed Pinon, he noticed the driver avoiding eye contact

with him, instead looking straight ahead. The vehicle noticeably reduced its speed from



       1
               As a threshold matter, the Government argues that the district court’s order should
be reversed because the district court failed to conduct a de novo review of the evidence
presented in the magistrate court as required by 28 U.S.C. § 636(b)(1). It appears from the
District Judge’s discussion of the evidence that a proper review was conducted.

                                                 -2-
approximately 55 or 60 to 25 or 30 miles per hour, keeping its brake lights on for almost one-

tenth of a mile.

        To investigate further, Pinon pulled out behind the Suburban and recorded the license

plate number, after which Pinon dropped back to a distance of six car lengths. Pinon then

observed the Suburban swerve two or three times over the white line onto the shoulder. This

maneuver suggested to Pinon that the driver may be attempting a “bailout,” whereby the

occupants of the vehicle would pull off the road and immediately disperse in an attempt to evade

law enforcement officers.

        Based on all of these facts, Pinon decided to stop the Suburban. The stop was made

approximately 75 miles from the border. When Pinon approached the vehicle, he noticed six

people laying in the rear section, as well as a driver and a passenger in the front; of the eight

persons in the vehicle, only the driver could produce immigration papers. Pinon then arrested the

driver of the vehicle, later identified as Barcenas.



                                          B. DISCUSSION

        In United States v. Brignoni-Ponce, 422 U.S. 873 (1975) and United States v. Cortez, 449

U.S. 411 (1981), the Supreme Court extended the analysis of Terry v. Ohio, 392 U.S. 1 (1968),

holding that pursuant to the Fourth Amendment, “officers on roving [border] 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.” Brignoni-Ponce, 422 U.S. at 884. The factors relied upon to evaluate the

reasonableness of the officer’s actions include the following: (1) experience of the arresting


                                                  -3-
Border Patrol officer, (2) proximity of the area where the vehicle was stopped to the border, (3)

characteristics of that area, (4) usual traffic patterns in that area, (5) information regarding recent

illegal border crossings in that area, (6) the behavior of the vehicle’s driver, (7) characteristics of

the vehicle, and (8) the number, appearance, and behavior of the passengers.2 See id. at 884-85.

        None of the above factors alone is determinative. Rather, “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.’” United States v.

Inocencio, 40 F.3d 716, 722 (5th Cir. 1994), reh’g denied, 1995 U.S. App. LEXIS 3437 (5th Cir.

1995) (quoting United States v. Casteneda, 951 F.2d 44, 47 (5th Cir.), reh’g denied, 1992 U.S.

App. LEXIS 2108 (5th Cir. 1992)). Therefore, we begin with an assessment of the individual

Brignonin-Ponce factors under the facts of this case before evaluating the likelihood of reasonable

suspicion based on the “totality of circumstances.”



        1. Officer’s Experience

        We have found that significant time spent as an officer or unusual effectiveness in securing

arrests supports a finding that reasonable suspicion existed. See, e.g., United States v. Zapata-

Ibarra, 212 F.3d 877, 882 (5th Cir.), cert. denied, 121 S. Ct. 412 (2000) (10.5 years experience);

United States v. Aldaco, 168 F.3d 148, 151 (5th Cir. 1999) (near-one hundred percent success


        2
                 The Government does not contend that the proceedings below established any
facts relevant to two factors, the information about recent illegal border crossings and
observations about passengers. Cf. Cortez, 449 U.S. at 419 (noting that officers’ awareness of
recent illegal alien passage through particular area was of “critical importance”); United States v.
Chavez-Chavez, 205 F.3d 145, 149-50 (5th Cir.), reh’g en banc denied, 214 F.3d 1352 (5th Cir.),
and cert. denied, 121 S. Ct. 251 (2000) (observations of passengers’ appearance contributed to
reasonable suspicion).

                                                  -4-
rate in properly stopping criminals); United States v. Villalobos, 161 F.3d 285, 289 (5th Cir.

1998) (two officers working together, one with 12 years and one with 15 months experience).

We have also highlighted agents’ geographic knowledge, not only of a general area, but

particularly of the more narrowly-defined space surrounding the scene of the pursuit and stop.

See, e.g., Zapata-Ibarra, 212 F.3d at 882 (officer regularly patrolled rural road in question);

Chavez-Chavez, 205 F.3d at 149 (emphasizing officers’ experience “patrolling this area of

Highway 286”); United States v. Nichols, 142 F.3d 857, 872 (5th Cir.), reh’g denied, 1998 U.S.

App. LEXIS 18508 (5th Cir.), and cert. denied, 525 U.S. 1056 (1998) (officers had “extensive

experience patrolling the area where they stopped” the defendant).

       In contrast to these cases, Pinon’s experience, both in terms of time spent as an officer and

areas with which he is markedly familiar, is not nearly as extensive. The Government mentions

Pinon’s 14-month tenure in the “Uvalde area,” but offers no evidence of his tested familiarity with

the area of Highway 90 near Sabinal. Similarly, while Pinon’s stop-and-arrest record is relevant, a

more specific showing is necessary to link the successful arrests to the area near the stop, so as to

distinguish general experience as a Border Patrol officer from the more specific experience that

the court’s cases permit to contribute to a finding of reasonable suspicion.

       Because of Pinon’s relatively limited experience (both temporally and geographically), his

independent judgment may not serve as a separate basis for his reasonable suspicion. See, e.g.,

United States v. Orona-Sanchez, 648 F.2d 1039, 1041-42 & n.2 (5th Cir. 1981) (agents with four

years’ experience nevertheless lacked experience in specifc area near stop). Notwithstanding

Pinon’s limited experience with the more specific area of Highway 90, however, the remaining




                                                 -5-
factors to be analyzed as well as the totality of the circumstances are reviewed keeping with the

general experience of Pinon as a Border Patrol officer in mind.



       2. Proximity to the Border

       Traditionally, we have viewed the proximity to the border of the stop area as an imperfect

proxy for the likelihood that the suspect originated his journey at or beyond the Mexican border.

See, e.g., Zapata-Ibarra, 212 F.3d at 881. Consistent with this rationale, the court has found

greater basis for reasonable suspicion in cases where stops have occurred closer to the border,

leading us to identify distances beyond 50 miles from the border as “substantial distance[s]” and

generally not entitled to weight in the evaluation of Brignoni-Ponce factors. See, e.g., United

States v. Rodriguez-Rivas, 151 F.3d 377, 380 (5th Cir. 1998); Aldaco, 168 F.3d at 150.

       Here, Pinon stopped Barcenas approximately 75 miles from the border, beyond the court’s

standard 50-mile reference. See United States v. Ceniceros, 204 F.3d 581, 584 (5th Cir. 2000).

Given the presence of nearby towns and connecting highways, there is no reason to deviate from

the standard to give weight to this factor.3 See, e.g., United States v. Pallares-Pallares, 784 F.2d

1231, 1233 (5th Cir. 1986) (highway connects with other roads going away from border). Cf.

United States v. Samaguey, 180 F.3d 195, 198 (5th Cir. 1999) (officer conceding that car headed

away from Mexico on highway did not necessarily originate at border).4


       3
                We take judicial notice of the existence of other highways and towns in the vicinity
of the stop point on Highway 90. See Fed. R. Evid. 201.
       4
                If an analysis of the proximity factor does not support the officer’s reasonable
suspicion, the remaining factors must be examined “‘most carefully’ to ensure the stop complied
with the requirements of the Fourth Amendment.” United States v. Orozco, 191 F.3d 578, 581
(5th Cir. 1999), cert. denied, 120 S. Ct. 996 (2000) (quoting Rodriguez-Rivas, 151 F.3d at 380).

                                                 -6-
        3. Characteristics of the Area

        “It is well established that a road’s reputation as a smuggling route adds to the

reasonableness of the agents’ suspicion.” Aldaco, 168 F.3d at 151-52 (citations omitted). Alone,

however, “the fact that a road has been used by alien smugglers is . . . insufficient to justify a

stop.” Chavez-Chavez, 205 F.3d at 148. Pinon testified as to the understanding among Border

Patrol officers that Highway 90 was a common route for smugglers. This characterization is not

directly disputed by Barcenas. Furthermore, although this factor would carry greater weight if

Highway 90 were utilized by smugglers specifically in order to avoid checkpoints or other patrols

on parallel highways, see, e.g., Inocencio, 40 F.3d at 723; Zapata-Ibarra, 212 F.3d at 881-82;

Aldaco, 168 F.3d at 152, the frequency with which it is used by criminals “is relevant to the

totality of the circumstances evaluation.” Chavez-Chavez, 205 F.3d at 148. See also Illinois v.

Wardlow, 120 S. Ct. 673, 676 (2000) (“[O]fficers are not required to ignore the relevant

characteristics of a location in determining whether the circumstances are sufficiently suspicious

to warrant further investigation.”).



        4. Usual Traffic Patterns in Area

        Pinon’s uncontradicted testimony established that passenger traffic appeared once every

ten minutes. The lack of non-commercial traffic supports the Government’s characterization that

driving at that time of night would be an uncommon occurrence. “Although traveling at an

unusual time of day alone may not give rise to a reasonable suspicion, it is a permissible

consideration.” Samaguey, 180 F.3d at 198.


                                                  -7-
       5. Behavior of the Driver

       The Government identifies three specific reactions of Barcenas as support for the

reasonableness of Pinon’s suspicions: (1) Barcenas failed to look at Pinon as he drove by, instead

staring straight ahead; (2) Barcenas decelerated noticeably from 55 to 35 miles per hour in a 65

MPH zone; and (3) Barcenas swerved two or three times over the white line (off the road),

leading Pinon to believe that the driver was engaging in a “bailout.”

       Recognizing the inherently inconclusive nature of eye contact (or lack thereof), we

consistently have found reliance on such reactions to be not entitled to weight in its evaluation of

the Brignoni-Ponce factors. See, e.g., Orozco, 191 F.3d at 582; United States v. Moreno-

Chaparro, 180 F.3d 629, 632 (5th Cir. 1999). “To conclude otherwise ‘would put the officers in

a classic ‘heads I win, tails you lose’ position.’” Moreno-Chaparro, 180 F.3d at 632 (quoting

United States v. Escamilla, 560 F.2d 1229, 1233 (5th Cir. 1977)). The fact that Barcenas

focused straight ahead instead of making eye contact with Pinon is thus of little consequence in

evaluating the reasonableness of Pinon’s suspicion.

       Observations of erratic driving and marked changes in speed, on the other hand, face no

such categorical rule. Rather, those behaviors will only contribute to a reasonable suspicion if

they are of the sort that cannot be attributed to innocent intentions; if the behaviors are such that

they would be engaged in by anyone, whether guilty or innocent, no inferences may be drawn

therefrom. See Zapata-Ibarra, 212 F.3d at 882-83; Samaguey, 180 F.3d at 198-99; United States

v. Jones, 149 F.3d 364, 370-71 (5th Cir. 1998). As a result, this court looks primarily to whether

these behaviors in this context may have been the natural (albeit unintended) result of particular


                                                 -8-
law enforcement actions. See, e.g., Moreno-Chaparro,180 F.3d at 632 (look of surprise to see

patrol car at closed checkpoint not significant); Samaguey, 180 F.3d at 199 (unclear whether

swerving was result of officer tailgating).

       Pinon’s testimony that Barcenas had swerved across the white shoulder line when Pinon

was six car lengths behind was uncontradicted. Pinon is entitled to rely on that observation,

including concerns of a possible “bailout,” in support of his reasonable suspicion. Cf. Zapata-

Ibarra, 212 F.3d at 883 (“We afforded [Defendant’s] swerving on the road little or no weight

when the record was ‘not clear about whether [Defendant] swerved when the patrol car

approached him to read his license plate, hardly suspicious, or if he swerved after the patrol car

dropped back, which could reinforce the officer’s suspicions about a driver’s level of

nervousness.’”) (quoting Samaguey, 180 F.3d at 199).

       Samaguey held that driving under the speed limit after passing a marked patrol car

constituted a contributing factor to an officer’s reasonable suspicion. 180 F.3d at 198-99.

Although it is unclear whether Barcenas commenced decelerating before Pinon left his stationary

position, or after Pinon began following him, the timing is irrelevant. Under either scenario,

Barcenas will have decelerated upon seeing Pinon’s marked car, a permissible basis for suspicious

inference under Samaguey. Therefore, although the lack of eye contact by Barcenas carries little

or no weight, the swerving of the Suburban and Barcenas’ deceleration contribute to a finding of

reasonable suspicion by Pinon.



       6. Characteristics of the Vehicle




                                                 -9-
       Even giving credence to Pinon’s claim that the Suburban is a popular car of smugglers,

Suburbans are not so unique in the area as to inherently raise suspicions. Pinon noted, however,

that the Suburban appeared to be “heavily-loaded” and “riding at a very low angle,” such that the

tires looked to be touching the wheel wells. A vehicle that appears to carry heavy contents, as

those of many smugglers do, will contribute to the reasonableness of Pinon’s determination. See

Ceniceros, 204 F.3d 585; Orozco, 191 F.3d at 582; Pallares-Pallares, 784 F.2d at 1234. Barcenas

argues that the truck could not have looked heavy because it was carrying eight passengers, the

number of passengers intended for the vehicle. The critical point, however, is not whether the

Suburban was tipping back under the weight of what should be a normal load. Rather, the focus

is on whether, upon seeing only two persons in the Suburban, Pinon could not develop a

reasonable suspicion given the heavy weight (equal to at least eight persons) the Suburban looked

like it was carrying. Having noted the disparity between the number of people in the Suburban

and the weight of what was inside, Pinon may rely on that observation to contribute to his

reasonable suspicion.



       7. Totality of Circumstances

       Although we must conduct our review of a District Court’s decision on a motion to

suppress by assessing the evidence in the light most favorable to the prevailing party, the review

of the legal determination is nevertheless de novo. See Rodriguez-Rivas, 151 F.3d at 379.

Notwithstanding the fact that Appellee was granted his motion in the trial below, therefore, we

must reverse the District Court ruling because the totality of the circumstances in this case,

including the driving behavior and the unexplained loading of the automobile, reveals a reasonable


                                                -10-
suspicion held by the stopping officer. Based on the application of the criteria announced in

Brignoni-Ponce and subsequent cases, Pinon had reasonable suspicion to conduct his

investigatory stop. The District Court’s order is therefore

REVERSED AND REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THIS

OPINION.




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