                        REVISED June 21, 1999

               IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT
                      ________________________

                             No. 97-50949
                       ________________________


UNITED STATES OF AMERICA,

                            Plaintiff-Appellee,

v.

SONIA LUZ LOPEZ-VALDEZ,

                            Defendant-Appellant.

_________________________________________________________________

      Appeal from the United States District Court for the
                    Western District of Texas
_________________________________________________________________
                           June 1, 1999
Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

     Sonia Luz Lopez-Valdez (“Lopez”) appeals from her criminal

conviction   for   willfully   transporting      illegal   aliens.   Lopez

contends that the district court erred in denying her motion to

suppress certain evidence gathered after law enforcement officers

stopped her car near the U.S.-Mexican border.              This Court has

jurisdiction pursuant to 28 U.S.C. § 1291.            For the reasons set

forth below, we REVERSE the district court’s July 22, 1997 denial

of Lopez’s motion to suppress and remand for further proceedings

consistent herewith.

                               I.   BACKGROUND

     At about 8:30 a.m. on August 14, 1996, Appellant was driving

east on Farm to Market Road (FM) 2644.           FM 2644, which connects
FM 1021 to U.S. Highway 277, originates in El Indio, Texas, a

small town near the U.S.-Mexican border.            FM 2644 is the main

road from El Indio to the larger towns of Carrizo Springs and

Crystal City.

          Heading east, away from the border, Lopez’s Buick passed the

west-bound marked patrol unit of Texas Department of Public

Safety (“DPS”) trooper Charles Flori.           Flori’s passenger, United

States Border Patrol Agent Matthew Mizell,1 noticed numerous

passengers in the Buick.        Based on the number of people in the

car and the fact that FM 2644 circumnavigates the Highway 277

checkpoint, Agent Mizell suspected that the vehicle could be

engaged in alien smuggling.         Agent Mizell and Trooper Flori

discussed these suspicions.         Trooper Flori decided to turn his

patrol car around so that he and Agent Mizell could get a better

look.

          Before turning his patrol car around, Trooper Flori saw in

his rearview mirror the Buick’s brake lights come on.               Flori

observed that the right taillight had a hole in its lens cover

and that the taillight emitted both red and white light.2                Agent

Mizell also saw that the Buick had a damaged taillight.                Later

inspection revealed that an inch-long, rectangular-shaped piece

of the taillight lens was missing.          The bulb was behind the

intact part of the red lens.



      1
     Agent Mizell had been assigned to ride with Flori as part of a joint
investigatory effort by the U.S. Border Patrol and the Texas Department of Public
Safety to detect narcotics trafficking and alien smuggling.
  2
   Essentially, all the witnesses (both from the Government and the Defense) at
trial conceded that the brake light emitted both a white and a red light.
     Trooper Flori stopped the Buick because he believed that a

broken taillight constituted a traffic infraction.       Trooper Flori

turned on his patrol car’s flashing lights; the Buick stopped.

As Flori talked with Lopez, Agent Mizell asked the passengers

about their citizenship status.    Most of the passengers did not

have documents with them.    They were arrested and read their

Miranda rights.    Lopez was also arrested and advised of her

rights.

     Lopez was transported to the border patrol station in

Carrizo Springs, Texas, where she was processed and placed in a

cell.   Border Patrol Agent Eduardo Martinez removed Lopez from

the cell to question her.    Once in the interrogation room, he

informed her, in English and Spanish, of her rights concerning

remaining silent and receiving assistance of counsel.       Lopez

signed forms indicating that she understood her rights, and she

answered the officer’s questions.       After the interrogation was

finished, Lopez signed a typed statement of her answers.       In the

statement, Lopez admitted that she knew the people in her car

were illegal aliens and that she was paid to drive them to

Carrizo Springs.

     Lopez was indicted on August 21, 1996, in the United States

District Court for the Western District of Texas for two counts

of willfully transporting illegal aliens.       Before trial, she

moved to suppress certain evidence, including her post-arrest

statements and witness testimony, on the basis that it was the




                                  -3-
fruit of an illegal detention.3         Lopez waived her right to a jury

trial.   The district court carried the motion to suppress with

the bench trial.

      At the end of Lopez’s trial, the district court heard

arguments on the motion to suppress.           Lopez, relying on State v.

Vicknair, 751 SW.2d 180 (Tex.Crim.App. 1986, no pet.), asserted

that it is well established law in Texas that a broken lens

causing a taillight to emit both red and white light does not

constitute an offense and as such could not serve as the basis

for a traffic stop.       Additionally, she contended that the facts

known to the officers did not give rise to a reasonable suspicion

that she was involved in illegal activity.            The Government, on

the other hand, argued that the totality of the circumstances

justified the initial stop and that Flori’s conduct amounted to a

good-faith view of Texas traffic laws concerning broken

taillights.     The Government contended that this good-faith view

would except from exclusion the evidence gathered subsequent to

the stop.

      The district court rightly decided that the suppression

motion turned on the lawfulness of the vehicular stop.               The court

found that the taillight on Lopez’s Buick emitted both white and

red light.    The court also found that officers Flori and Mizell



  3
    At trial, the Government introduced Lopez’s post-arrest statements as well as
testimony by Jose Louis Perez Cordero and Roberto Manriquez, who had been
passengers in Lopez’s car. Both men testified that they had entered the United
States illegally. They had arranged the entry with a woman, not Lopez, and had
crossed the Rio Grande river guided by a man. After crossing, they waited until
Lopez picked them up in her Buick.

                                      -4-
did not manufacture the circumstances under which Flori

effectuated the stop.   The court noted that, to the extent that

Lopez’s vehicle had been stopped for a traffic violation,

Vicknair would require the motion to suppress to be granted

because, in Texas, a damaged taillight which emits both red and

white light could not justify a traffic stop.   The court did not

attempt to carve out a good-faith exception to the exclusionary

rule.   Instead the district court relied on the reasonable

suspicion test that governs roving border patrol stops, and

concluded that, given all the facts and circumstances in

possession of both the federal agent and state trooper, there

were sufficient articulable facts to raise a reasonable suspicion

justifying the initial stop.

     The district court denied the motion to suppress and found

Lopez guilty as charged.   Lopez received five years’ probation.

                           II. DISCUSSION

     On appeal, Lopez argues that law enforcement officers lacked

the reasonable suspicion necessary to justify an immigration stop

of her vehicle; that a broken taillight did not provide probable

cause for the police to effect a traffic stop; that a Texas DPS

trooper’s erroneous belief that a broken taillight constituted a

traffic infraction did not excuse the vehicular search under the

good-faith exception to the probable cause requirement; and that,

in accordance with the Fourth Amendment prohibition against

illegal searches and seizures, the illegal stop and detention of

Lopez requires the suppression of all evidence acquired


                                -5-
subsequent to the stop.   The Government argues that the district

court improperly concluded that the good-faith exception to the

exclusionary rule was inapplicable and that either reasonable

suspicion or the good-faith exception justified the vehicular

stop.

                                  A.

     In reviewing the denial of a motion to suppress, a district

court’s purely factual findings are reviewed for clear error.

See United States v. Nichols, 142 F.3d 857, 864-65 (5th Cir.

1998).   Its conclusion that the facts provided the probable cause

or reasonable suspicion necessary to justify a detention is

reviewed de novo.   See Ornelas v. United States, 517 U.S. 690,

699 (1996).

                                  B.

     A vehicle may not be stopped simply because it is traveling

on a road near the U.S.-Mexican border.    See Brown v. Texas, 443

U.S. 47, 49-52 (1979) (noting that presence in a high-crime area

does not provide reasonble suspicion); United States v. Newell,

506 F.2d 401, 405 (5th Cir. 1975) (explaining that presence in a

border area does not place a citizen “within a

deconstitutionalized zone”).   A border patrol agent may briefly

detain a vehicle only if the agent is “aware of specific

articulable facts, together with rational inferences from those

facts, that reasonably warrant suspicion” that the vehicle is

involved in illegal activities.     United States v. Brignoni-Ponce,

422 U.S. 873, 884 (1975); see also United States v. Inocencio, 40


                                  -6-
F.3d 716, 722 (5th Cir. 1994).         In assessing the objective

reasonableness of a stop, the reviewing court must consider the

“whole picture.”      United States v. Cortez, 449 U.S. 411, 417-18

(1981).    Several factors comprise that picture:           (1) the area’s

proximity to the border, including evidence that the vehicle

recently crossed the border; (2) the previous experience of the

arresting agents with criminal activity; (3) known

characteristics of the area; (4) the usual traffic patterns of

that road; (5) information about recent illegal trafficking in

aliens or narcotics in the area; (6) the behavior of the

vehicle’s driver; (7) the appearance of the vehicle; and (8) the

number, appearance, and behavior of any passengers.              See

Brignoni-Ponce, 422 U.S. at 884.         In applying the Brignoni-Ponce

standard, this Court has recognized that the Supreme Court

underpinned the standard with a balancing test; the public

interest in addressing the continuing problems of alien and drug

smuggling must be weighed against the private interest of an

individual to be let alone in exercising his or her liberty.                See

Nichols, 142 F.3d at 861-62.

      Although no single Brignoni-Ponce factor is controlling,

see Inocencio, 40 F.3d at 722, we have considered physical

proximity to the border to be a “vital element” in analyzing the

totality of the circumstances.         Nichols, 142 F.3d at 867

(citation omitted).4      The Government relies on United States v.


   4
     It is important to note that--although the Nichols Court did observe that
Nichols’ proximity to the border was an essential fact to consider, see 142 F.3d
at 886-68--its conclusion that the stop was justified rested not on proximity

                                      -7-
Cardona, 955 F.2d 976 (5th Cir. 1992) (finding that agents had a

reasonable suspicion to conclude that the defendant’s vehicle had

originated at the border in light of the number of towns along

the road, the number of intersecting roads, and the number of

miles from the border), and argues that when, such as here, the

stop occurs relatively close to the border (20 miles) and the

road (FM 2644) comes directly from El Indio on the border--El

Indio is the only town south of where Lopez’s vehicle was

stopped--it is reasonable to conclude that Lopez originated her

journey at the border.

      Even were we to agree with the Government and assume that

Lopez originated her journey at the border, that factor “alone

[is] not dispositive in the reasonable suspicion analysis.”

United States v. Pacheco, 617 F.2d 84, 86 (5th Cir. 1980); see

also United States v. Diaz, 977 F.2d 163, 165 (5th Cir. 1992)

(concluding that presence on the border is insufficient for a

finding of reasonableness).        Other Brignoni-Ponce factors must be

considered.    The Government identifies two additional facts that

it contends justify the stop: the presence of numerous passengers

in Lopez’s car and the fact that the road on which Lopez was

traveling could be used to circumvent an immigration checkpoint.

      A review of Fifth Circuit authority, however, reveals that

these facts are insufficient to justify the stop.            First, in

cases where the numerosity of passengers contributed to a finding



alone, but on the totality of the circumstances reflected in the record. Id. at
859, 873.

                                     -8-
of reasonable suspicion, we have consistently found the presence

of additional factors indicative of wrongdoing.   See, e.g.,

Brignoni-Ponce, 422 U.S. at 885 (finding, as indicative of

wrongdoing, passengers’ attempts to hide); United States v.

Garcia, 732 F.2d 1221, 1223 (5th Cir. 1984) (explaining that

passengers’ “unwashed” and “unkempt” appearance contributed

toward a determination of reasonable suspicion); United States v.

Salazar-Martinez, 710 F.2d 1087, 1089 (5th Cir. 1983) (noting the

significance of passengers kneeling on floor with their heads

down).   Here, the record contains no evidence that the passengers

engaged in evasive or unusual behavior.   Additionally, the record

contains no evidence that the passengers appeared unkempt or

unwashed.   Therefore, we find that the mere presence of several

people in Lopez’s Buick does not alone raise a reasonable

suspicion; Fifth Circuit precedent requires that something more

be shown.

     Second, Lopez’s presence on FM 2644 does not give rise to a

reasonable inference of wrongdoing.   Although there was testimony

that FM 2644 could be used to avoid an immigration checkpoint,

the Government did not introduce at trial any evidence that it

was unusual to see a car on FM 2644 at 8:30 in the morning.    The

Appellant correctly notes, to the contrary, that the record

showed that a resident of El Indio would take FM 2644 if she were

heading to the larger towns of Carrizo Springs or Crystal City.

Appellant additionally points out that in poorer areas, such as

many communities along the U.S.-Mexican border, people are more


                                -9-
likely to share rides to work or to the larger towns and cities.

     In sum, the facts seem to show only that Lopez was driving

an older-model mid-size sedan with anywhere from six to eight

visible passengers about 20 miles from the border.   We note that

the Government failed to introduce at trial evidence of other

Brignoni-Ponce factors.    In particular, the record before us

contains no information about the border patrol agents’ relevant

experience, see, e.g., United States v. Ortega-Serrano, 788 F.2d

299, 302 (5th Cir. 1986) (reversing the denial of a motion to

suppress and observing that the record contained no evidence of

agent’s relevant experience); no evidence of the usual traffic

patterns on FM 2644; no evidence that there was anything unusual

about the appearance or behavior of either Lopez or her

passengers, see, e.g., Nichols, 142 F.3d at 866 (finding

significant the fact that driver sat at the intersection for 30

seconds, then drove erratically as he watched a patrol vehicle in

his rear view mirror); and no evidence that the Buick’s

appearance suggested smuggling, see, e.g., United States v.

Chavez-Villarreal, 3 F.3d 124, 126 (5th Cir. 1993) (noting an

agent’s testimony that alien smugglers favored Suburbans);

Ortega-Serrano, 788 F.2d at 302 (observing that no evidence was

presented that a Camaro was the type of car frequently

encountered in smuggling or that the car had somehow been

modified for smuggling).

     Because proximity to the border cannot alone justify a stop,

a finding of reasonable suspicion in this case would have to be


                                -10-
based, in large part, upon the number of passengers in the car.

As already discussed, however, Fifth Circuit precedent indicates

that the mere presence of numerous people in a car does not raise

a reasonable suspicion.   Nor are we willing in the instant case

to assign some magic number at which point reasonable suspicion

would arise.   Thus, absent a showing by the Government that other

Brignoni-Ponce factors weigh in its favor, we hold that a mid-

size sedan traveling on a road near the U.S.-Mexican border with

as many as eight visible passengers does not give rise to

reasonable suspicion of unlawful activity.

                                C.

     “As a general matter, the decision to stop an automobile is

reasonable where the police have probable cause to believe that a

traffic violation has occurred.”     Whren v. United States, 517

U.S. 806, 810 (1996).   This rule provides law enforcement

officers broad leeway to conduct searches and seizures regardless

of whether their subjective intent corresponds to the legal

justification for their actions.     See United States v. Miller,

146 F.3d 274, 279 (5th Cir. 1998).    We have explained that the

“flip-side of that leeway” is that “the legal justification must

be objectively grounded.”   Id.; see also Goodwin v. Johnson, 132

F.3d 162, 173 (5th Cir. 1998) (“So long as a traffic law

infraction that would have objectively justified the stop had

taken place, the fact that the police officer may have made the

stop for a reason other than the occurrence of the traffic

infraction is irrelevant for purposes of the Fourth Amendment and


                               -11-
comparable Texas law.”).        In United States v. Miller, 146 F.3d

274 (5th Cir. 1998), we held that where the supposed traffic

infraction that formed the basis for a vehicular stop in fact was

not a violation of state law, there was no objective basis for

probable cause justifying the stop.           See id. at 279 (concluding

that a driver operating a vehicle by flashing the left turn

signal without turning or changing lanes did not violate Texas

traffic law and thus that no probable cause existed to justify

the traffic stop).

      In this case, the Government argues that Trooper Flori

stopped Appellant’s Buick based upon his good-faith belief that

the broken taillight constituted a violation of § 547.303 of the

Texas Transportation Code.        Trooper Flori’s belief, however, was

incorrect.    In Texas, state police officers do not have authority

to stop vehicles with cracked taillight lenses that “permit[]

some white light to be emitted with red light.”              Vicknair v.

State, 751 S.W.2d at 187.5

      Generally, the fruits of illegal searches and seizures are

inadmissible under the exclusionary rule.            See United States v.


  5
   The statute at issue in Vicknair was former Texas Revised Civil Statute art.
6701d, § 111.     That statute provided in pertinent part that "every motor
vehicle... shall be equipped with at least two (2) taillamps mounted on the rear,
which when lighted as required in Section 109 [requiring lights on from half an
hour after sunset to half an hour before sunrise], shall emit a red light plainly
visible from a distance of one thousand (1,000) feet to the rear [.]" Tex.
Rev.Civ.Stat. art. 6701d, § 111. At the time that Lopez was stopped, 6701d, §
111 had been recodified as Texas Transportation Code § 547.322(d).
      The Government on appeal argued that Trooper Flori stopped Lopez's vehicle
based on his good-faith belief that the broken taillight constituted a violation
of § 547.303, not § 547.322(d).      Whether Flori believed that Lopez was in
violation of § 547.322(d) or § 547.303 is of no consequence. The requirement
embodied in § 547.303 existed at the time of Vicknair.    The former art. 6701d,
§ 115(b) simply distinguished rear lamp reflectors from the reflectors on other
lamps that may be amber or white.

                                      -12-
Ramirez-Lujan, 976 F.2d 930, 932 (5th Cir. 1992).               But the good-

faith exception to the exclusionary rule allows the admission of

the fruits of some illegal stops.            See id.   Under this doctrine,

we have held that "evidence is not to be suppressed . . . where

it is discovered by officers in the course of actions that are

taken in good-faith and in the reasonable, though mistaken,

belief that they are authorized."            United States v. De Leon-

Reyna, 930 F.2d 396, 400 (5th Cir. 1991) (en banc).

         Trooper Flori stopped Lopez in 1996.          Ten years after

Vicknair, no well-trained Texas police officer could reasonably

believe that white light appearing with red light through a

cracked red taillight lens constituted a violation of traffic

law.6

        Lopez rightly points out that this Court should be leery of

extending the good-faith exception to this appeal.               Under the

general rule established in Whren, a traffic infraction can

justify a stop even where the police officer made the stop for a

reason other than the occurrence of the traffic infraction.                  See

Goodwin v. Johnson, 132 F.3d 162, 173 (5th Cir. 1998).                But if

officers are allowed to stop vehicles based upon their subjective


  6
    In a recent case, United States v. Nichols, 142 F.3d 857 (5th Cir. 1998), we
noted that the “application of the good-faith exception to reasonable suspicion
determinations has always involved circumstances extrinsic to the government
agent's personal observations at the time of the stop." See id. at 860 n.1
(citations omitted). Here, Flori's actions were not based upon any circumstances
extrinsic to his own personal observations. Flori stopped the Buick because he
thought that the vehicle's broken taillight violated Texas law.
        We need not and do not make a determination in the instant case based upon
any extrinsic circumstance limitation. Rather we ground our analysis in the
language of our en banc De Leon-Reyna decision which recognizes that an officer’s
course of action be taken not only in good faith but be objectively reasonable
as well. See De Leon-Reyna, 930 F.2d at 400.

                                      -13-
belief that traffic laws have been violated even where no such

violation has, in fact, occurred, the potential for abuse of

traffic infractions as pretext for effecting stops seems

boundless and the costs to privacy rights excessive.

Accordingly, we hold that Flori’s actions do not pass muster

under the good-faith exception to the exclusionary rule.

                           III. CONCLUSION

     For the above reasons, we conclude that the district court

erred in denying Appellant’s motion to suppress her custodial

statements as well as the statements of the two witnesses who

were passengers in her car.   We therefore reverse and remand for

further proceedings consistent herewith.

     REVERSE and REMAND.




                                -14-
EMILIO M. GARZA, Circuit Judge, dissenting:

       I agree with the majority opinion that the success of Lopez’s motion to suppress evidence

depends on whether the officers had reasonable suspicion to stop Lopez’s vehicle. See Reid v.

Georgia, 448 U.S. 438, 440, 100 S. Ct. 2752, 2754, 65 L. Ed. 2d 890 (1980) (“[A]ny curtailment

of a person’s liberty by the police must be supported at least by a reasonable and articulable

suspicion that the person seized is engaged in criminal activity.”). However, I disagree that the

officers lacked reasonable suspicion to stop Lopez’s vehicle. Accordingly, I dissent.

       The district court denied Lopez’s motion to suppress, finding that the officers had a

reasonable suspicion that Lopez’s vehicle was involved in criminal activity. When reviewing such

a ruling, we review a district court’s factual findings “under the clearly erroneous standard.”

United States v. Inocencio, 40 F.3d 716, 721 (5th Cir. 1994). “The conclusions of law derived

from a district court’s findings of fact, such as whether a reasonable suspicion existed to stop a

vehicle, are reviewed de novo.” Id.

       The Supreme Court has made clear that “any number of factors may be taken into account

in deciding whether there is reasonable suspicion to stop a car” near the border. United States v.

Brignoni-Ponce, 422 U.S. 873, 884, 95 S. Ct. 2574, 2582, 45 L. Ed. 2d 607 (1975). These

factors include: (1) the characteristics of the area; (2) proximity to the border; (3) the usual traffic

patterns on the particular road; (4) previous experience with alien traffic; (5) information about

recent illegal border crossings in the area; (6) the driver’s behavior; (7) aspects of the vehicle

itself; (8) the vehicle’s appearance; (9) whether the vehicle has an extraordinary number of

passengers; (10) whether passengers are attempting to hide; and (11) the appearance of the driver

and passengers. See United States v. Jones, 149 F.3d 364, 367 (5th Cir. 1998) (citing Brignoni-

Ponce, 422 U.S. at 884-85, 95 S. Ct. at 2582). A court’s inquiry into reasonable suspicion “is not

limited to an analysis of any one factor.” Inocencio, 40 F.3d at 722. “Rather, a finding of

reasonable suspicion must be based on the ‘totality of the circumstances known to the agent and

                                                -15-
the agent’s experience in evaluating such circumstances.’” Jones, 149 F.3d at 367 (quoting

United States v. Castaneda, 951 F.2d 44, 47 (5th Cir. 1992)).

        The totality of the circumstances known to Federal Agent Mizell gave rise to a reasonable

suspicion that Lopez was involved in transporting illegal aliens. Mizell’s testimony addressed

several of the Brignoni-Ponce factors. Mizell testified that he stopped Lopez on FM 2644,

twenty miles from the U.S.-Mexico border. FM 2644 comes directly from El Indio on the U.S.-

Mexico border. FM 2644 was the only road circumventing the Highway 277 checkpoint.

Moreover, the checkpoint on Highway 277 was operational at the time Lopez was stopped. The

fact that a road circumvents an immigration checkpoint is relevant to establishing reasonable

suspicion. See, e.g., United States v. Aldaco, 168 F.3d 148, 152 (5th Cir. 1999); Inocencio, 40

F.3d at 723 (5th Cir. 1994); United States v. Ramirez-Lujan, 976 F.2d 930, 932, 934 (5th Cir.

1992). Finally, Mizell testified that there were “a lot of people” in Lopez’s four-door Buick, and

that the passengers were “piled in there.” Such testimony shows that Mizell saw “an

extraordinary number of passengers” in Lopez’s car. Jones, 149 F.3d at 367. According to

Mizell, the number of people in the car was “unusual.”

        These articulable facts created a reasonable suspicion that Lopez’s vehicle was involved in

transporting illegal aliens. Accordingly, the district court did not err in finding that the officers’

stop of Lopez’s vehicle was constitutionally permissible. I would uphold the district court’s

denial of Lopez’s motion to suppress and affirm her conviction.




                                                 -16-
