                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                               AUG 10 1998
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                                No. 97-2383
                                                    (D. Ct. No. CR-97-308-LH)
                                                            (D. N. Mex.)
 DAVID COTA-SOLIS,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, BALDOCK, and KELLY, Circuit Judges.



      After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

      The defendant was convicted of possessing more than 100 kilograms of

marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 21


      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
U.S.C. § 841(b)(1)(B). Defendant appeals from the district court’s denial of his

two motions to suppress evidence, and from the district court’s refusal to apply

the Federal Rules of Evidence at the suppression hearing. We take jurisdiction

pursuant to 28 U.S.C. § 1291 and affirm.

                                           I.

      On April 13, 1997, Border Patrol Agent Rogelio Villa was conducting

surveillance near Cloverdale, New Mexico. Cloverdale lies at the end of New

Mexico Highway 338, which starts at Interstate 10 and runs 68 miles south,

terminating at the Cloverdale area. The southernmost 25 miles of Highway 338 is

unpaved. There are very few homesteads along that stretch of road. Cloverdale is

located approximately four miles from the Mexican border, and an increase in

alien smuggling has taken place in the area.

      At about 4:30 a.m., Agent Villa received a transmission from Agents Brian

Garnsey and Efrain Sella-Perez, who were located north of him on Highway 338,

informing him that a vehicle was traveling southbound towards Cloverdale. From

his elevated vantage point off 338, Agent Villa eventually saw the lights of a car

moving south on 338. Agent Villa observed the vehicle turn east off Highway

338 to a point approximately two miles from the border. The vehicle’s lights shut

off. About 30 to 45 minutes later, Agent Villa saw the glow of headlights again

and observed a vehicle traveling back to 338 and heading northbound. Agent


                                        -2-
Villa radioed Agents Garnsey and Silla and asked them to stop the vehicle.

Agents Garnsey and Sella followed the white pickup truck while they ran a

registration check. Agent Sella was somewhat familiar with the local vehicles on

that portion of Highway 338, and he had not seen the truck before. He also

noticed that the bed of the pickup had been covered with wood.

      Agents Garnsey and Sella pulled the truck over. The defendant admitted

that he was a Mexican national. Agent Garnsey placed defendant under arrest and

read him his Miranda rights in Spanish. Agent Sella then asked the defendant

where he had come from, to which the defendant replied that he had just crossed

the border. The defendant’s truck was searched, revealing 730 pounds of

marijuana.

      The defendant moved to suppress the marijuana evidence as well as his

statement informing Agent Sella that he had just crossed the border. At the

beginning of the suppression hearing, the defense attorney made objections to the

government attorney’s questions on the basis that they were leading and lacked

foundation. The district court overruled those objections on the grounds that the

rules of evidence do not apply at a suppression hearing. The district court denied

the motion to suppress and the defendant entered a conditional guilty plea.

Defendant now appeals, arguing (1) that the officers lacked the necessary

reasonable suspicion to stop his vehicle, (2) that there is no evidence that he


                                         -3-
waived his Miranda rights, and (3) that the district court impermissibly restricted

his evidentiary objections.

                                          II.

      When reviewing a district court’s grant or denial of a motion to suppress,

we accept the district court’s factual findings unless they are clearly erroneous

and we view the evidence in the light most favorable to the district court’s

findings. See United States v. Elliott, 107 F.3d 810, 813 (10th Cir. 1997). The

ultimate conclusion of whether a particular stop is reasonable under the Fourth

Amendment, however, is a legal determination that we review de novo. See

United States v. Maestas, 2 F.3d 1485, 1490 (10th Cir. 1993).

      Border patrol agents 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.” United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975). This

standard is based on Terry v. Ohio, 392 U.S. 1 (1968) and Adams v. Williams,

407 U.S. 143 (1972), which allow brief searches and investigatory seizures upon a

“reasonable suspicion” of dangerous or illegal activity. See Brignoni-Ponce, 422

U.S. at 880-82.

      “In determining whether reasonable suspicion exists to justify stopping a

vehicle, a court must consider the totality of the circumstances.” United States v.


                                         -4-
Barbee, 968 F.2d 1026, 1028 (10th Cir. 1992) (citations omitted). Despite our

decidedly non-mechanical approach to these cases, we have drawn from Brignoni-

Ponce eight factors relevant to determining whether or not border agents had

reasonable suspicion to stop a vehicle. See United States v. Lopez-Martinez, 25

F.3d 1481, 1483-84 (10th Cir. 1994).

      The first three factors are the characteristics of the area in which the

vehicle is encountered, the proximity of the area to the border, and the usual

traffic patterns on the particular road. See id. at 1483. The defendant’s car was

encountered on an unpaved stretch of Highway 338, in an area that contained very

few homes. The light population of the area minimized the probability that the

defendant was an innocent visitor in the area. Furthermore, the Cloverdale area is

close in proximity—approximately four miles—to the border. In light of the fact

that we have counted this factor in favor of the government when a stop took

place as much as sixty miles from the border, see id. at 1485, the proximity of the

stop to the border in this case weighs towards a finding of reasonableness.

      With regard to the usual traffic patterns on the road, the evidence also

weighs in favor of the government. Agent Sella, who was familiar with the local

vehicles that traveled on that portion of Highway 338, did not recognize the white

pickup truck. The defendant was driving at 4:30 a.m., on an already secluded dirt

road. There is usually no traffic on Highway 338 at that time.    Furthermore, the


                                         -5-
circumstances surrounding defendant’s detour from the highway are suspicious.

Defendant drove his truck off the highway to an area consisting mostly of brush

and even closer to the Mexican border than Cloverdale, stopped, turned off his

lights for approximately 30 minutes, and then returned the same way he had

arrived. As the district court noted, a logical inference from the sequence of

events was that the driver stopped to board aliens on the truck, or to load

contraband.

      The next two factors are the agents’ previous experience with alien traffic

and information about recent illegal border crossings. See id. at 1484. Agent

Sella only had two years as a border agent at the time of arrest. Agent Villa,

however, had six years on the job and patrolled Highway 338 daily. Furthermore,

there had been a marked increase in the amount of alien crossings and narcotics

smuggling in the Cloverdale area.

      Finally, we consider the driver’s behavior, aspects of the vehicle, such as

sealed compartments, and whether or not the vehicle appeared to be heavily

loaded. See id. We have already addressed the defendant’s highly suspicious

detour off Highway 338. Aside from defendant’s peculiar detour, he did not

behave suspiciously and there is no testimony that the vehicle appeared heavily

loaded. Agent Sella noticed, however, that the bed of the pickup was covered by




                                         -6-
a piece of wood. The covering created a compartment in which aliens—or

contraband—could be stowed.

      In light of the above factors, the agents stopped the defendant upon

reasonable suspicion. The defendant argues that the fact that his vehicle was

found near the border early in the morning was insufficient to justify a stop. The

defendant, however, fails to acknowledge the testimony regarding the detour into

the brush, the secluded nature of the Cloverdale area in general, and the plywood

covering of the bed of the pickup. Viewing these elements in their totality,

together with the proximity to the border and the time of day, we conclude the

agents possessed reasonable suspicion to stop defendant.

                                         III.

      The defendant next argues that he did not waive his right against self-

incrimination, and that therefore his statement to Agent Sella should have been

suppressed. A suspect may waive his right against self-incrimination as long as

the waiver is made “voluntarily, knowingly and intelligently.” Miranda v.

Arizona, 384 U.S. 436, 444 (1966). “Whether a waiver was voluntary, knowing

and intelligent, ‘is a legal question requiring independent factual determination.’”

United States v. Hernandez, 913 F.2d 1506, 1509 (10th Cir. 1990) (quoting Miller

v. Fenton, 474 U.S. 104, 110 (1985)). We will accept the district court’s findings




                                        -7-
on this question unless they are clearly erroneous. See Hernandez, 913 F.2d at

1509.

        The question of waiver “is not one of form, but rather whether the

defendant in fact knowingly and voluntarily waived the rights delineated in the

Miranda case." See North Carolina v. Butler, 441 U.S. 369, 373 (1979). “[I]n at

least some cases waiver can be clearly inferred from the actions and words of the

person interrogated.” Id. “To establish a voluntary waiver of Fifth Amendment

rights, the government must show (1) that the waiver was the product of free and

deliberate choice rather than intimidation, coercion, or deception; and (2) that the

waiver was made in full awareness of the nature of the right being waived and the

consequences of waiving.” United States v. Toro-Pelaez, 107 F.3d 819, 825 (10th

Cir. 1997) (citation omitted).

        In this case, Agent Sella testified as to the circumstances surrounding his

conversation with the defendant. According to Agent Sella’s unopposed

testimony, he asked the defendant, “Where are you coming from?,” in a casual

tone. Nothing in the record suggests that the district court clearly erred in

finding a lack of intimidation, coercion, or deception. Agent Sella’s testimony

also satisfies the second element for proper waiver. Agent Sella testified that

Agent Garnsey read the defendant his Miranda rights in Spanish. Furthermore,

Agent Sella testified that the defendant acknowledged that he understood the


                                          -8-
rights read to him, and that he did not appear incapacitated in any way. In light of

this uncontested evidence, we cannot say that the district court clearly erred in

finding the defendant’s subsequent decision to answer Agent Sella’s question a

valid waiver.

                                         IV.

      The defendant’s final argument is that the district court erred in refusing to

consider his evidentiary objections at the suppression hearing. Whether, or to

what extent, the rules of evidence apply to a suppression hearing is a question of

law. We review questions of law de novo. See United States v. McCloud, 127

F.3d 1284, 1286 (10th Cir. 1997).

      Federal Rule of Evidence 1101(d)(1) states that the rules of evidence do not

apply to preliminary fact determinations to be made by the court under Rule 104.

“Rule 104(a) provides that preliminary questions concerning admissibility are

matters for the judge and that in performing this function he is not bound by the

Rules of Evidence except those with respect to privileges.” United States v.

Matlock, 415 U.S. 164, 174 (1974). Therefore, we have held that the rules of

evidence do not apply at suppression hearings. See United States v. Merritt, 695

F.2d 1263, 1270 (10th Cir. 1982).

      Although Matlock and Merritt seem to end the matter, the defendant has an

interesting counterargument. He contends that Rule 1101(d) cannot be read to


                                         -9-
make all rules of evidence irrelevant to fact determinations under Rule 104,

because Rule 104 itself would then be inapplicable to the cases in which it is

supposed to operate. According to the defendant:

      What must be meant is that the traditional exclusionary rules
      do not apply [to suppression hearings], but that procedural
      regulation of the process of admission and exclusion remains
      applicable. Therefore the judge is not bound by the hearsay
      rule in his preliminary fact determinations, but rules governing
      objections, taking of judicial notice, and the scope of
      examinations continue to apply.

21 C HARLES A LAN W RIGHT & K ENNETH G RAHAM , F EDERAL P RACTICE AND

P ROCEDURE § 5053 (1977). Although the issue is an interesting one, we find it

unnecessary to decide. Assuming without deciding that it was error for the

district court to ignore the defense’s objections, the error was immaterial to the

outcome of this appeal.

       Evidentiary rule violations that do not amount to constitutional error are

harmless if in light of the whole record, it can be said that they did not

substantially influence the outcome of the trial. See United States v. Trujillo,

136 F.3d 1388, 1397 (10th Cir. 1998). After thoroughly reviewing the record,

we find no basis to believe that the district court’s refusal to entertain the

defense’s objections had a substantial influence on the district court’s decision.




                                        - 10 -
                               V.

For all the foregoing reasons, we AFFIRM.

                              ENTERED FOR THE COURT,


                              Deanell Reece Tacha
                              Circuit Judge




                              - 11 -
