     Case: 10-40518   Document: 00511565994      Page: 1    Date Filed: 08/09/2011




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                      FILED
                                                                     August 9, 2011

                                    No. 10-40518                     Lyle W. Cayce
                                                                          Clerk

UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee
v.

RICARDO SOTO,

                                              Defendant - Appellant



                  Appeal from the United States District Court
                       for the Southern District of Texas


Before JOLLY, HAYNES, and GRAVES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
        Ricardo Soto appeals his conviction, specifically the district court’s denial
of his motion to suppress evidence resulting from a temporary investigative stop
by Border Patrol agents on Interstate 35 near Cotulla, Texas. This evidence is
at the bottom of Soto’s conviction for unlawfully transporting an illegal alien.
For the reasons that follow, we conclude, in this admittedly close case, that the
circumstances known and the conduct observed by the agents were sufficient to
warrant reasonable suspicion justifying the stop. We therefore affirm the
district court’s denial of Soto’s motion to suppress, and thus affirm the
conviction.
   Case: 10-40518       Document: 00511565994        Page: 2    Date Filed: 08/09/2011



                                       No. 10-40518

                                             I.
      We affirm this conviction on the basis of reasonable inferences that can be
drawn from the facts.           In setting out the facts, we rely on credibility
determinations made by the district court, which credited the Border Patrol’s
version over that of the defendant. The credited facts are as follows:
      On June 11, 2009, Border Patrol Agents Victor Barberena (“Agent
Barbarena”) and Abraham Esqueda (“Agent Esqueda”) were engaged in a roving
border patrol on Interstate Highway 35 (“I-35”) between Laredo and San
Antonio, 59 to 60 miles from the U.S.-Mexico border. During the relevant time
here, the agents were sitting in their marked Chevy Tahoe on the east side of
I-35 at the end of a rest area, facing the highway, and observing northbound
traffic from a distance of approximately 45 yards or more. The agents chose this
location because nearby bushes concealed the Tahoe from passing motorists until
they were almost directly in front of it, while providing the agents a clear view
of passing traffic. Agent Barbarena testified that this positioning helped to
create an element of surprise, such that motorists “don’t have a chance to either
duck down or try any other evasive actions” before the Border Patrol agents
could observe them.
      At approximately 8:00 a.m., a blue Nissan Maxima with heavily tinted
windows passed the agents’ location. They saw a female driver, Leonor Garcia
(“Garcia”); one male in the front passenger seat, the defendant Soto; and one
male passenger in the rear passenger-side seat, Juan Carlos de la Cruz-
Calamino (“Delacruz”). The agents observed that the front windows of the
Nissan were completely rolled down, and one or both rear windows were rolled
halfway down. The agents testified that as the Nissan passed the bushes,
Delacruz turned and, upon seeing the agents, gave a “surprised look”1 and


      1
          Agent Barbarena testified that Delacruz’s expression was an “oh-my-god look.”

                                             2
   Case: 10-40518       Document: 00511565994          Page: 3    Date Filed: 08/09/2011



                                       No. 10-40518

immediately ducked down and leaned back into his seat, out of the agents’ view.
The agents then pulled out and began to follow the Nissan.2 Agent Esqueda ran
the license plate and discovered that the Nissan was registered in Kingsville,
Texas, which is southeast of the location and not directly accessible from I-35.
       The agents then paralleled the Nissan for approximately three minutes
and observed that the rear windows had been rolled up. The agents could still
see into the Nissan through the open front windows and, when they passed the
Nissan, through the front windshield.                 They observed Garcia tapping
“excessively” on the steering wheel as if playing along to music, doing so “very
nervously” in Agent Barbarena’s estimation. They also pulled ahead of the
Nissan and observed Delacruz “ducking down” in the back seat. During the
three-minute period as the agents drove alongside and looked into the Nissan,
none of the occupants of the Nissan made eye contact with the agents. The
agents ultimately determined that they had enough suspicion to pull the Nissan
over for a temporary investigative stop. During their inspection Delacruz
admitted that he was an undocumented alien. Soto was arrested on the spot and
charged with unlawfully transporting an illegal alien.
       After his indictment and before trial, Soto filed a motion to suppress the
evidence as fruits of an unconstitutional detention. Following a suppression
hearing on September 11, 2009, the magistrate judge issued a Report and
Recommendation denying the motion. The district court accepted the Report
and Recommendation and denied the motion by Memorandum and Order on
January 12, 2010. Soto waived a jury trial and proceeded to trial on stipulated
facts. He was convicted of unlawfully transporting an illegal alien, in violation



       2
         When asked whether he and Agent Esqueda discussed Delacruz’s behavior before
following the vehicle, Agent Barbarena testified: “Yes. We looked at each other. It’s like, uh,
something is not right.” The dissent erroneously interprets Barbarena’s suspicion that
“something [was] not right” as a description of Delacruz’s behavior.

                                              3
   Case: 10-40518    Document: 00511565994       Page: 4   Date Filed: 08/09/2011



                                   No. 10-40518

of 8 U.S.C. § 1324 and 18 U.S.C. § 2, and was later sentenced to twenty months
of imprisonment and three years of supervised release. Soto timely appealed,
invoking our jurisdiction under 28 U.S.C. § 1291.
                                         II.
      The question presented is whether the Border Patrol agents had
reasonable suspicion that illegal activity was afoot when they stopped the
vehicle in which Soto was traveling. We review the factual findings of the
district court for clear error and its legal conclusions de novo. United States v.
Gomez, 623 F.3d 265, 268 (5th Cir. 2010). “[W]e review the evidence in the light
most favorable to the Government as the prevailing party.” Id. at 269.
      “A border patrol agent conducting a roving patrol may make a temporary
investigative stop of 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’s occupant is engaged in criminal activity.” United
States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). Under the Supreme
Court’s pronouncement in United States v. Brignoni-Ponce, 422 U.S. 873 (1975),
factors that may be considered in determining reasonable suspicion include:
(1) the area’s proximity to the border; (2) characteristics of the area; (3) usual
traffic patterns; (4) the agents’ experience in detecting illegal activity;
(5) behavior of the driver; (6) particular aspects or characteristics of the vehicle;
(7) information about recent illegal trafficking of aliens or narcotics in the area;
and (8) the number of passengers and their appearance and behavior.
Jacquinot, 258 F.3d at 427. “No single factor is determinative; the totality of the
particular circumstances must govern the reasonableness of any stop by roving
border patrol officers.” United States v. Moreno-Chaparro, 180 F.3d 629, 631–32
(5th Cir. 1998).
      Having considered the facts in this case, we conclude that the totality of
the circumstances before us support the district court’s denial of the motion to

                                         4
   Case: 10-40518    Document: 00511565994       Page: 5   Date Filed: 08/09/2011



                                  No. 10-40518

suppress. The critical facts buttressing reasonable suspicion are that Delacruz
was first observed with his window halfway down, and immediately upon seeing
the agents he exhibited a look of surprise, ducked down, and slumped back in his
seat to the point of not being visible to the agents; that his tinted window was
rolled up by the time the agents caught up to the vehicle; that while paralleling
and driving in front of the vehicle, the agents observed Delacruz ducking down
in the back seat as if attempting further to hide; and that this took place on a
section of I-35, headed north from the border, that is a known smuggling route
for transporting illegal aliens and narcotics.
      At the outset, we do not disagree with the district court’s observation that
this case is decidedly close. Moreover, it is obvious that several of the Brignoni-
Ponce factors that may be considered in a case such as this, are either not
present or when present have weakened force. For example, because Soto’s
vehicle was observed and apprehended more than fifty miles from the Mexican
border—even though only nine or ten miles beyond that benchmark
distance—there is no stand-alone inference that the vehicle’s journey originated
at the border. See United States v. Jones, 149 F.3d 364, 368 (5th Cir. 1998) (“[A]
car traveling more than fifty (50) miles from the border is usually viewed as
being too far from the border to support an inference that it originated its
journey there.”); United States v. Melendez-Gonzalez, 727 F.2d 407, 411 (5th Cir.
1984) (holding that proximity element was missing where vehicle was stopped
sixty miles from the Mexican border). We have explained that proximity to the
border can be a “paramount factor” in assessing reasonable suspicion. United
States v. Orozco, 191 F.3d 578, 581 (5th Cir. 1999). The fifty-mile benchmark is
not, however, a “bright line rule.” Jones, 149 F.3d at 368. Moreover, “[c]lose
proximity to the border is not required if other specific articulable facts support
a finding of reasonable suspicion.” United States v. Ceniceros, 204 F.3d 581, 584
(5th Cir. 2000).

                                        5
   Case: 10-40518       Document: 00511565994           Page: 6     Date Filed: 08/09/2011



                                        No. 10-40518

       Because the stop took place over fifty miles from the border, we “look at
the remaining factors ‘most carefully’ to ensure the stop complied with the
requirements of the Fourth Amendment.” Orozco, 191 F.3d at 581 (quoting
United States v. Rodriguez-Rivas, 151 F.3d 377, 380 (5th Cir.1998)). In doing so,
we note that even where a vehicle is beyond the fifty-mile benchmark, “the fact
that the northbound vehicle was traveling from the direction of the
Mexico-United States border [can be] a legitimate factor when viewed in
conjunction with the other factors.” Id. In this case, Soto’s vehicle was observed
heading northbound from the direction of the border.                      Furthermore, the
magistrate judge and district court took note that the portion of I-35 near
Cotulla, Texas, where Soto’s vehicle was stopped, is a notorious route for the
smuggling of aliens and illicit drugs.3 This conclusion is supported by the
testimony of Agent Barbarena, and indeed, we have previously observed that
this segment of I-35 is “known by border patrol agents as a route out of Mexico
for undocumented aliens.” United States v. Pacheco, 617 F.2d 84, 86 (5th Cir.
1980).
       Nevertheless, the most compelling consideration of the circumstances in
our analysis is the behavior of Delacruz upon seeing the Border Patrol agents.
First, he exhibited a look of shock and immediately ducked down and slumped
back, out of the agents’ sight. To be sure, we have held that a look of surprise
upon seeing a Border Patrol agent at a closed immigration checkpoint is of “little
significance.” Moreno-Chaparro, 180 F.3d at 632. We have further held that
mere slouching, although relevant, is not sufficient to justify a stop. Pacheco,
617 F.2d at 86–87. “[P]assengers commonly slump in their seats to rest,


       3
         Of course, “merely being on a road frequently used for illegal activity is insufficient
to justify an investigative stop.” United States v. Diaz, 977 F.2d 163, 165 (5th Cir. 1992).
Nevertheless, “[i]t is well established that a road’s reputation as a smuggling route adds to the
reasonableness of the agents’ suspicion.” United States v. Zapata-Ibarra, 212 F.3d 877, 881
(5th Cir. 2000) (internal quotation marks and citations omitted).

                                               6
   Case: 10-40518       Document: 00511565994          Page: 7     Date Filed: 08/09/2011



                                       No. 10-40518

particularly at nighttime hours. . . . Therefore, we have required a more
affirmative indication of an attempt to hide for this factor to weigh in favor of the
presence of reasonable suspicion.” Zapata-Ibarra, 212 F.3d at 883 (internal
quotation marks and citations omitted). In this case, however, the events
occurred at about eight o’clock in the morning, and the “affirmative indication
of an attempt to hide” is explicit: Delacruz was sitting normally until, in an
immediate and simultaneous reaction to seeing the officers, he “ducked below
the window.”4       Indeed, we can think of no plausible explanation for this
conduct—nor has one been offered by Soto—but that he was attempting to hide
from law enforcement officers. This is akin to the behavior of the defendant in
United States v. Espinosa-Alvarado, 302 F.3d 304 (5th Cir. 2002). In that case
we determined that Border Patrol agents’ reasonable suspicion was bolstered by
the fact that the defendant “chose the moment the agents appeared in the
distance to slump down in such a way that he disappeared (or nearly
disappeared) from the sight of an agent looking straight down into the vehicle.”
Id. at 306–07 (internal footnotes omitted).
       Adding to the agents’ suspicion, Delacruz continued “hunching down.”
When the agents pulled up alongside the Nissan approximately 45 seconds later,
Delacruz’s darkly tinted rear window—which was halfway down when the
Nissan initially passed the Tahoe—had been rolled up, further arousing
suspicion. Although the windows were dark, the agents were able to observe
Delacruz through the front windshield, while in the front of the Delacruz vehicle,



       4
         The dissent reduces Delacruz’s behavior to mere “slouching.” The agents testified,
however, that Delacruz “ducked” immediately upon seeing them and continued “ducking down”
until his vehicle was pulled over. The dissent thus fails to view the evidence in the light most
favorable to the Government, as we are obligated to do. Neither Pacheco nor any of the other
cases cited by the dissent involve an individual who, like Delacruz, looked surprised and
immediately ducked out of sight upon seeing Border Patrol agents, later denying that he did
so and failing to offer any alternative explanation for his conduct.

                                               7
   Case: 10-40518       Document: 00511565994          Page: 8    Date Filed: 08/09/2011



                                       No. 10-40518

and they noticed that he was “ducking down” in the back seat in a manner that
suggested a further attempt to hide.5
       Notwithstanding these facts, we acknowledge that several factors in the
Brignoni-Ponce calculus lend little or no weight to the panel’s conclusion. For
example, the number of passengers in the Nissan was not unusual, and the
record contains no discussion of recent criminal activity in the area. Similarly,
the Nissan’s registration to an address in Kingsville, Texas—located in the
southeastern part of the state—is of no particular moment to the present
analysis. As the district court noted, Agents Barbarena and Esqueda were
recent additions to the Border Patrol whose experience in immigration
enforcement at the time of the stop was “relatively sparse compared to agents
in many other cases,” although Agent Barbarena had substantial prior
experience detecting illegal activity—including experience with illegal aliens—as
a member of the Laredo Police Department.6
       Finally, we attach little significance to the failure of the driver, Garcia, to
make eye contact with the agents while they drove beside her vehicle for
approximately three minutes.            This Court has consistently observed that,

       5
         We should be clear that Delacruz’s graphic and continuing attempt to hide from the
sight of the Border Patrol officers is key to reasonable suspicion in this case—not merely the
startled look on his face upon first spying the officers’ car.
       6
         The record reflects that both agents had recently completed the approximately
four-month Border Patrol training program and subsequently had served approximately two
months with the Border Patrol before the events in question. As the magistrate judge
observed, however, Agent Barbarena had previously served for 15 years in the Laredo Police
Department, five years of which he served as a patrolman. Testimony at the suppression
hearing disclosed that during that time, Agent Barbarena “often encountered undocumented
aliens” and “was paired up several times with Border Patrol agents who provided some formal
training in recognizing undocumented aliens in the field.” The magistrate judge further
concluded that “in relaying his observations from the passenger seat of the patrol unit, [Agent
Esqueda] benefited from Agent Barbarena’s knowledge and lengthy experience in law
enforcement.” These factual findings, which were adopted by the district court, are supported
by the record. See also United States v. Neufeld-Neufeld, 338 F.3d 374, 382 (5th Cir. 2003)
(concluding that in deciding to make an investigative stop, agent with one and one-half years
of experience benefited from partner agent’s thirteen years of experience).

                                              8
   Case: 10-40518    Document: 00511565994      Page: 9   Date Filed: 08/09/2011



                                  No. 10-40518

ordinarily, “whether a driver looks at an officer or not should not be accorded
much weight.” United States v. Rangel-Portillo, 586 F.3d 376, 381 (5th Cir.
2009) (internal quotation marks, citations, and modifications omitted); Moreno-
Chaparro, 180 F.3d at 632. The agents also testified, however, that Garcia
appeared to be very nervous, tapping her fingers “excessively” on the steering
wheel as if she were listening to music. We are persuaded that, at the very least,
this observation—taken in conjunction with the other facts known to the
agents—does not detract from the reasonableness of the agents’ suspicion.
      It bears emphasizing that none of the less persuasive factors mentioned
above necessarily cut against the Government in our assessment of reasonable
suspicion; we simply need not afford every observation special significance one
way or the other. The weaker aspects of the Brignoni-Ponce considerations must
be judged in relation to the more weighty facts of this case—in particular, the
suspicious behavior of Delacruz, who was observed attempting to conceal himself
from Border Patrol agents for a period of minutes in a northbound vehicle sixty
miles from the border on a route known for illegal alien trafficking. These facts,
viewed in tandem with the totality of the circumstances before us, are sufficient
to establish reasonable suspicion that illegal activity was afoot.
                                        III.
      In sum, the investigative stop, for the reasons set forth above, was justified
by reasonable suspicion. The Border Patrol agents articulated specific facts
which, together with rational inferences from those facts, reasonably warranted
suspicion of illegal activity. We AFFIRM the district court’s denial of Soto’s
motion to suppress and consequently his conviction.
                                                                      AFFIRMED.




                                         9
  Case: 10-40518    Document: 00511565994      Page: 10    Date Filed: 08/09/2011



                                  No. 10-40518

GRAVES, Circuit Judge, dissenting.
      There is insufficient evidence in this case to support a finding of
reasonable suspicion. As a result, Soto’s motion to suppress should have been
granted. Because I would reverse and vacate the conviction, I respectfully
dissent.
      This Court reviews the factual findings of the district court for clear
error and its legal conclusions de novo. United States v. Olivares-Pacheco,
633 F.3d 399, 401 (5th Cir. 2011). This Court reviews the denial of a motion
to suppress in the light most favorable to the prevailing party. Id.
      “A border patrol agent conducting a roving patrol may make a
temporary investigative stop of 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’s occupant is engaged in
criminal activity.” United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir.
2001). See United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574,
45 L.Ed.2d 607 (1975).
      Factors to be considered in determining reasonable suspicion include:
(1) proximity to the border; (2) characteristics of the area; (3) usual traffic
patterns; (4) agent’s previous experience in detecting illegal activity; (5)
behavior of the driver; (6) particular aspects or characteristics of the vehicle;
(7) information about recent illegal trafficking of aliens or narcotics in the
area; and (8) the number of passengers and their appearance and behavior.
Brignoni-Ponce, 422 U.S. at 884-85. See also Jacquinot, 258 F.3d at 427.
“The reasonable suspicion analysis is a fact-intensive test in which the court
looks at all circumstances together to weigh not the individual layers, but the
laminated total.” Jacquinot, 258 F.3d at 427. “Factors that ordinarily
constitute innocent behavior may provide a composite picture sufficient to



                                        10
  Case: 10-40518      Document: 00511565994     Page: 11   Date Filed: 08/09/2011



                                  No. 10-40518

raise reasonable suspicion in the minds of experienced officers.” Id. at 427-28.
      One of the vital elements in establishing reasonable suspicion is
whether the agents had reason to believe the vehicle recently crossed the
border. Id. at 428. A car traveling more than 50 miles from the border is
typically viewed as being too far from the border to support an inference that
it originated there. Id. “If there is no reason to believe that the vehicle came
from the border, the remaining factors must be examined charily.” Id.
      The district court deferred to the magistrate’s findings of fact, but noted
that “[e]ven with those findings, this is a close case.” Specifically, the district
court further said:
            The instant case is close because several Brignoni factors
      are missing. The stop occurred 59 miles from the Mexican border,
      negating the inference that the vehicle’s journey originated there.
      United States v. Jones, 149 F.3d 364 (5th Cir. 1998). The
      experience of the two Border Patrol agents was relatively sparse
      compared to agents in many other cases. The Report’s [sic]
      makes little reference to the appearance of the vehicle, except
      that the rear and side windows were tinted. The vehicle
      contained only a driver and two passengers, and the Report
      makes no reference to the physical appearance of any of the
      occupants. The vehicle was not on a lightly travelled road, such
      as a ranch road or farm-to-market rural road. Instead, the stop
      occurred on Interstate Highway 35, a major national
      thoroughfare.
      The district court then discussed the remaining factors it considered,
finding the pivotal evidence to be the conduct of Delacruz, and affording
lesser weight to the failure to make eye contact, the finger tapping on the
steering wheel, and the registration in Kingsville.
      The majority agrees that this case is decidedly close and that the
paramount factor of proximity to the border is missing. As there is no
evidence that the vehicle came from the border, the remaining factors must
be examined carefully.


                                        11
  Case: 10-40518     Document: 00511565994        Page: 12    Date Filed: 08/09/2011



                                    No. 10-40518

      One of the critical facts relied upon by the majority is that while
paralleling the Nissan, the agents observed Delacruz ducking down in the
back seat as if attempting further to hide. However, only one of the agents,
Abraham Esqueda, testified that he observed Delacruz ducking down while
the agents paralleled the vehicle. Esqueda, who had two months of
experience - a total of approximately sixteen hours of which were spent
working in the area in question, relayed this information to Barberena, who
merely testified as to what Esqueda told him. Barberena testified that he
was driving and only glanced at the Nissan and merely saw a body in the
back seat. Barberena also testified that he could not tell if Delacruz was
sleeping as the agents paralleled the Nissan.
       Both agents testified that when Delacruz slouched as the Nissan
initially passed the agents’ parked Tahoe, he was not only obscured by the
window, which was only halfway down, but also by the vertical frame of the
door, indicating a person sitting back in his seat. Furthermore, upon
demonstration by Barberena of Delacruz’s movement, the district court
indicated “for the record” that “the agent moved over to the right of the seat
and then slouched down.”1 Barberena also testified that there was no
indication that Delacruz went onto the floorboard of the car at any time.
      The majority says that “Delacruz’s graphic and continuing attempt to
hide from the sight of the Border Patrol officers is key to reasonable suspicion
in this case – not merely the startled look on his face upon first spying the
officer’s car.” The majority also suggests that the affirmative indication of an
attempt to hide is explicit because the stop occurred at approximately eight
o’clock in the morning. I respectfully submit that the record in this matter
does not support a finding of any graphic or continuing attempt to hide or

      1
         The majority takes issue with my use of the term “slouching.” However, “for the
record,” the district court indicated Delacruz slouched.

                                          12
  Case: 10-40518    Document: 00511565994     Page: 13    Date Filed: 08/09/2011



                                  No. 10-40518

that the slouching described during the hearing on the motion to suppress
explicitly indicates an attempt to hide. Barberena testified that Delacruz’s
look of surprise and initial slouching as the Nissan passed “looked like”
Delacruz was attempting to hide. Barberena further described Delacruz’s
behavior as, “[i]t’s like, uh, something is not right.” That testimony was, at
best, the subjective opinion of an inexperienced agent and was, at worst, mere
speculation. Either way it is insufficient to support a finding of an explicit or
graphic attempt to hide. Further, the only observation Barberena made of
any expression or movement by Delacruz was as the Nissan quickly passed
the agents’ parked location.
      The majority finds that Delacruz’s behavior is akin to that of the
defendant in United States v. Espinosa-Alvarado, 302 F.3d 304 (5th Cir.
2002). The defendant in that case slumped down and disappeared from view
when the agents appeared. However, Espinosa-Alvarado is clearly
distinguishable. In Espinosa-Alvarado, the stop occurred less than one mile
from the U.S.-Mexico border after sensor hits alerted agents to a border
crossing. The agents had over eight-and-a-half years of combined experience,
most of it in the area of the stop. The stop occurred on a desolate stretch of
highway generally used by local residents as opposed to a vehicle registered
out of state. The driver responded to the agents’ presence by excessively
looking in his mirrors and slowing down to 10 miles below the speed limit.
The paramount factor of proximity to the border existed in Espinosa-
Alvarado, meaning that the other factors did not have to be examined as
carefully as those in the instant case. Even so, I note that the other factors
existing in Espinosa-Alvarado were much stronger than those here. For
these reasons, Espinosa-Alvarado is not applicable.
      The majority cites United States v. Zapata-Ibarra, 212 F.3d 877 (5th
Cir. 2000), for the proposition that passengers commonly slump in their seats

                                       13
  Case: 10-40518     Document: 00511565994      Page: 14   Date Filed: 08/09/2011



                                     No. 10-40518

to rest and that a “more affirmative indication of an attempt to hide” is
required for this factor to weigh in favor of reasonable suspicion. In Zapata-
Ibarra, this Court also said: “The number of passengers and their slouching,
even though ordinarily fitting with innocent travel, ‘may provide a composite
picture sufficient to raise reasonable suspicion in the minds of experienced
officers.’ Accordingly, we give some weight to this factor.” Id. at 883 (internal
citations and marks omitted). Zapata-Ibarra involved several slouching
passengers, who appeared to be trying to avoid detection, in a van
approximately twenty-four miles north of the Mexican border. The driver
slowed considerably and was having difficulty keeping the van, which was
registered in another city, within the lane. Despite the existence of the
paramount factor of proximity to the border and the other factors listed
above, this Court merely gave “some weight to this factor.” In contrast, here
there were two passengers, one of whom slouched, inexperienced officers, and
no evidence that the Nissan came from the border. Yet this Court now finds
slouching to be a critical factor.
      This Court has repeatedly held that “[w]hile such slouching is relevant,
it is not sufficient even when combined with other observations, to justify the
stop.” United States v. Pacheco, 617 F.2d 84, 86-87, n. 4 (5th Cir. 1980) (Four
aliens “hunkered down;” none testified that they “slouched” to avoid
detection.). See also United States v. Orona-Sanchez, 648 F.2d 1039, 1041-
1042 (5th Cir. 1981) (Two aliens “sort of slouched down” so that agents “could
only see the tops of the heads” as the agents passed. “That the two
passengers ‘hunkered down’ was considered relevant but insufficient in
Pacheco, even when combined with other observations, citing Lamas.”) ;
United States v. Pena-Cantu, 639 F.2d 1228, 1229 (5th Cir. 1981) (“[T]he
passengers in the back seat were sitting low as if to avoid detection.”
Further, “[t]hese facts are, however, unquestionably insufficient to justify an

                                         14
  Case: 10-40518    Document: 00511565994         Page: 15   Date Filed: 08/09/2011



                                  No. 10-40518

investigatory seizure. See United States v. Lamas. . . .” ); and United States
v. Lamas, 608 F.2d 547 (5th Cir. 1979) (“Garza also testified that, as the car
passed, the passengers in the back seat appeared to slouch down to avoid
being seen. While this is certainly a suspicious reaction, on its own it is not
sufficient to provide justification for the stop and does not add enough to
Garza’s other observations to allow us to condone the stop in this case.”).
Agents could clearly see into the vehicle through the front windows and the
windshield. There was no testimony that Delacruz attempted to conceal
himself by laying on the floor, but merely that he was concealed by the
window and the vertical frame of the car as he slouched back in his seat.
Further, while officers testified that Delacruz’s window was halfway down
when the Nissan first passed and then was later rolled up, agents did not
know when the window was rolled up or by whom. Delacruz testified that he
had rolled the window up prior to passing the agents’ original stationary
location because the air was blowing. In any event, the slouching of Delacruz
should be afforded very little, if any, weight.
      The agents chose the location where they parked because nearby
bushes created an element of surprise. Barberena described the effect as,
“we’ll just pop out” as a vehicle passes the location. The fact that a passenger
in the Nissan was indeed surprised would be an intended and expected
response and should be afforded no weight. While Barberena did at one point
reference an “oh-my-god” look, he at other times described Delacruz’s
expression as merely “surprised.” Also, Esqueda offered contradictory
testimony, saying both that Delacruz made a “surprised expression” and that
Delacruz was looking away from agents the entire time. Esqueda described
the clothing that Delacruz was wearing, but Barberena testified that he could
not see what Delacruz was wearing because he was visible only from the neck
up as the Nissan passed the agents’ location. Further, the report prepared by

                                        15
  Case: 10-40518     Document: 00511565994      Page: 16    Date Filed: 08/09/2011



                                   No. 10-40518

Barberena referenced only “a female driver and male passenger in the front
seat and an unknown person in the backseat in a blue, compact, four-door
vehicle traveling north,” indicating it is unclear whether Barberena saw
Delacruz’s facial features clearly enough to determine even whether he was
male as the vehicle passed.
      In United States v. Moreno-Chaparro, 180 F.3d 629 (5th Cir. 1999), this
Court said the following with regard to the government’s reliance on the
surprised appearance of a passenger: “We perceive little significance in a
driver looking surprised to see a Border Patrol agent parked at a closed
immigration checkpoint. More is needed to articulate the mandated
reasonable suspicion required for a stop by the Supreme Court’s teachings.”
Id. at 632.
      Based on the testimony of the agents and the applicable law, this factor
should be afforded no weight in determining reasonable suspicion.
      The majority finds that several other factors, including the number of
passengers in the Nissan, reports of recent criminal activity, the Nissan’s
registration in Kingsville and the agents’ experience, “lend little or no weight”
to its conclusion. These factors should lend absolutely no weight. There were
three people in the Nissan - one driver and two passengers. There is nothing
significant or unusual about that. There were no reports of recent criminal
activity. The Nissan was registered in Kingsville and Barberena testified
that it was questionable why it was on I-35, but he also testified that a person
traveling from Kingsville to Encinal would then take I-35 north to reach
Cotulla or any of several cities or towns north of Cotulla. While agents
testified that I-35 is a known smuggling route, the mere presence of a vehicle
on a road frequently used for illegal activity is not sufficient to justify a stop.
Jacquinot, 258 F.3d at 429. Barberena testified that there was nothing about
the vehicle that would give an indication that it was carrying illegal aliens

                                         16
  Case: 10-40518      Document: 00511565994         Page: 17     Date Filed: 08/09/2011



                                      No. 10-40518

other than the registration in Kingsville.2 The registration was unknown to
Barberena until after the agents paralleled the Nissan and then ran the tag.
Both Barberena and Esqueda had spent three3 months at the Border Patrol
Academy and had only two months of subsequent experience as Border Patrol
agents. As stated previously, they had spent approximately sixteen hours
working the area in question. The majority references Barberena’s fifteen
years of prior experience working for the Laredo Police Department.
However, Barberena only served as a patrolman for the first five of those
years. For the following ten years he served as an investigator/detective in
the special investigations unit dealing with domestic violence, child abuse
and sex crimes, and then as a sergeant in the internal affairs unit.
Barberena testified that this was his first alien smuggling case as the case
agent.
       The majority attaches little significance to the failure of the driver to
make eye contact. However, this Court has said that failure to make eye
contact “cannot weigh in the balance in any way whatsoever.” United States
v. Escamilla, 560 F.2d 1229, 1233 (5th Cir. 1977). In Escamilla, this Court
further said:
       Finally, characterizing appellants’ failure to look or wave at the
       agents as ‘suspicious’ will place other persons driving near the
       border in a most precarious position. In United States v.
       Barnard, 553 F.2d 389, 391-92 (5th Cir. 1977), the court found it
       suspicious that the driver of vehicle ‘glanced repeatedly and
       nervously at (a Border Patrol Agent) as he passed.” For the court
       to now hold that the opposition reaction to the officers’ presence is


       2
         I note that the tint of the windows is of no significance as the front windows were
completely rolled down, the occupants were clearly visible, and there was no suggestion that
the tint was darker than what would normally be found on a vehicle with tinted windows in
Texas.
       3
        Barberena initially testified that the program was “approximately four months long,”
but then later unequivocally stated it was three months.

                                            17
  Case: 10-40518    Document: 00511565994     Page: 18    Date Filed: 08/09/2011



                                   No. 10-40518

      a legitimate consideration in deciding whether to stop a vehicle
      would put the officers in a classic ‘heads I win, tails you lose’
      position. The driver, of course, can only lose.

Escamilla, 560 F.2d at 1233. This Court further elaborated on the failure to
make eye contact in United States v. Lopez, 564 F.2d 710 (5th Cir. 1977), as
follows:
      In this impersonal age, failure to make eye contact with strangers
      is commonplace; it may be the rule rather than the exception.
      Reasonable suspicion should not turn on the ophthalmological
      reactions of the appellant. As we noted in Escamilla,
      characterizing appellant’s failure to look at the agents as
      “suspicious’ will place other persons driving near the border in a
      most precarious position.

Id. at 712.
      More recently, this Court has noted that “the government has variously
relied on both sides of the factor, on some occasions contending that it is
suspicious for a person to look and on other occasions insisting that it is
suspicious not to look,” and found that the failure to make eye contact, “taken
alone or in combination with other factors, should be accorded little weight.”
Moreno-Chaparro, 180 F.3d at 632. See also United States v. Rangel-Portillo,
586 F.3d 376, 381 (5th Cir. 2009).
      Accordingly, the failure to make eye contact should weigh against a
finding of reasonable suspicion.
      The majority finds that the finger tapping does not detract from the
reasonableness of the agents’ suspicion. However, with regard to the driver
tapping on the steering wheel, both agents testified that it appeared Garcia
was playing along to music. Further, there was no evidence of Garcia
speeding up, slowing down, swerving, looking into her mirrors excessively, or
exhibiting any other behavior that might be consistent with nervousness.
Also, Delacruz testified that the passengers were listening to music and that

                                       18
  Case: 10-40518   Document: 00511565994     Page: 19     Date Filed: 08/09/2011



                                 No. 10-40518

Garcia was playing along by tapping on the steering wheel. Tapping the
steering wheel along to music absent any other evidence of nervousness
should weigh against a finding of reasonable suspicion.
      This Court has found reasonable suspicion to be lacking based upon the
totality of the circumstances in cases factually much stronger than this. See
Olivares-Pacheco, 633 F.3d at 399 (Extended cab Chevrolet pickup truck
dragging some brush; not local; known smuggling corridor; passengers failed
to make eye contact; passenger pointed to unremarkable field.); Moreno-
Chaparro, 180 F.3d 629 (Chevrolet pickup truck with muddy underside;
extremely nervous driver who slowed down and looked at checkpoint on
known smuggling route and seemed surprised to see officer there.); United
States v. Chavez-Villarreal, 3 F.3d 124 (5th Cir. 1993) (Older model Suburban
with heavily tinted windows and out-of-state license plate traveling on known
smuggling route; kept changing lanes and speeds; driver looked straight
ahead and did not make eye contact.); Pacheco, 617 F.2d at 86 (Car heavily
loaded on known smuggling route; “four aliens ‘hunkered down’” and avoided
eye contact.).
      The evidence presented in this case fails to create a reasonable
suspicion that Soto was engaged in criminal activity at the time of the stop.
This panel should reverse the district court’s ruling on the motion to suppress
and vacate the conviction.




                                      19
