                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                                                            F I L E D
                         REVISED JUNE 22, 2004
                 IN THE UNITED STATES COURT OF APPEALS                       June 21, 2004
                         FOR THE FIFTH CIRCUIT
                                                                        Charles R. Fulbruge III
                                                                                Clerk

                                No. 03-50213


                        UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                     versus

                    ELIZABETH HERNANDEZ-SARMIENTO,

                                                             Defendant-Appellant.



            Appeal from the United States District Court
                  for the Western District of Texas
                       USDC No. P-02-CR-125-ALL


Before JOLLY, DAVIS and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

            The court has carefully considered the appeal filed by

Hernandez   challenging       the    denial    of    her     motion    to    suppress

evidence.     Although Appellant’s position is well argued, the

determination     whether     Game    Warden        Cervantez    had      reasonable

suspicion   to   stop   her   car    because    of     its    unusual     night-time

activity on Highway 349 is in this case heavily dependent on the

district court’s credibility determination.                    Both the district

court and the magistrate judge found Warden Cervantez’s explanation

     *
            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opinion should not be published and is not precedent except under the limited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.
of   the   basis     for   his   suspicion        credible,    notwithstanding

Appellant’s      counter-arguments.         The   court’s     factfindings   are

entitled   to    deference   under    the    clearly    erroneous    standard.

Further,   his     articulated   facts,     taken    together,    satisfied   a

standard of reasonable suspicion that Hernandez’s vehicle might be

engaged in illegal hunting.           See United States of America v.

Arvizu, 534 U.S. 266 (2002).

           Accordingly, the motion to suppress was correctly denied,

and the conviction is AFFIRMED.




                                      2
E. GRADY JOLLY, Circuit Judge, dissenting:

     I respectfully dissent.

     Warden   Cervantez     testified    that   he   suspected   Hernandez-

Sarmiento’s   involvement    in    illegal   hunting   activities,   namely

hunting at night, hunting from a vehicle, and hunting by using

artificial light, because: 1) the road was “notorious” for road

hunting, 2) the vehicle had no apparent reason to be on that road,

and 3) the van passed his location very slowly, proceeded south out

of view and, after a few minutes returned past his location

traveling “a little bit faster.”        Warden Cervantez testified that

this conduct conforms with the typical pattern of illegal road

hunters who, according to Warden Cervantez,

          Go down that one way.       They are hunting, using

          the lights of the vehicle so they might be

          going down slow.        Once they find their target,

          whatever it is ... they killed it, put it in

          the vehicle and get out of there as fast as

          they can in case somebody heard a shot or

          somebody saw them.



     The facts in this case, as articulated by Warden Cervantez for

justifying his suspicion of criminal activity, do not meet the

Fourth Amendment standard, when compared to the criminal profile he

described above.
      That   standard   is    that    “[a]n    investigatory   stop   must    be

justified by some objective manifestation that the person stopped

is, or is about to be, engaged in criminal activity.”                   United

States v. Cortez, 449 U.S. 411, 417 (1981) (emphasis added).

“Based upon that whole picture the detaining officers must have a

particularized and objective basis for suspecting the particular

person stopped of criminal activity.”              Id. at 417-18 (emphasis

added). In making this assessment we must look to the “totality of

the   circumstances”    and    are,    thus,    precluded    from   looking   at

individual facts “in isolation from each other.”             United States v.

Arvizu, 534 U.S. 266, 274 (2002).             Finally, we may consider only

facts that were known to the officer at the time of the stop.

United States v. Morales, 191 F.3d 602, 604 (5th Cir. 1999).

      It seems apparent from the record, and particularly his

testimony,   that    Warden    Cervantez’s      suspicions   that   Hernandez-

Sarmiento was involved in illegal road hunting do not meet the

Fourth Amendment standard for reasonable suspicion.             First, Warden

Cervantez heard no gunshot and did not observe Hernandez-Sarmiento

use her headlights in any unusual way.           Second, Warden Cervantez’s

observation that Hernandez-Sarmiento traveled south very slowly and

then returned north past his location traveling only “a little bit

faster” is inconsistent with his earlier description of the profile

of the illegal hunter:        that a hunter “get[s] out of there as fast

as they can.”       Third, with respect to his testimony that he was

suspicious because Highway 349 is notorious for illegal hunting,

                                        4
the record positively shows that no citations have been issued on

Highway   349    in   the   last   five       years   for   the   illegal   hunting

activities      suspected   here   (hunting       at   night,     hunting   from   a

vehicle, and hunting by using artificial light).                   Still further,

Warden Cervantez’s justification for his suspicion in the absence

of citations (the presence of animal carcasses near the highway)

does not support his articulated modus operandi for poachers --

kill an animal, put it in the vehicle and then quickly flee the

area.

     In the light of our discussion above, the totality of the

circumstances is now that Hernandez-Sarmiento drove her van down a

lonely road and returned a few minutes later going in the opposite

direction.      Although this may have raised some suspicion in the

mind of a reasonable officer, it does not arouse suspicion of

criminal activity in the totality of this case.                   If this were the

case the officer could stop any driver on that road for simply

turning around and heading in the opposite direction.                       Such an

unwarranted stop by the police is supported by nothing more than a

“hunch”, see Terry v. Ohio, 392 U.S. 1, 27 (1968), and in my

opinion is barred by the Fourth Amendment.

     For these reasons, I respectfully dissent.




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