     Case: 17-50885      Document: 00514805519         Page: 1    Date Filed: 01/23/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 17-50885                   United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                     January 23, 2019
UNITED STATES OF AMERICA,
                                                                       Lyle W. Cayce
              Plaintiff - Appellee                                          Clerk


v.

FRANCISCO JAVIER DEL HIERRO-VEGA,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:16-CR-474-1


Before HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:*
       Francisco Javier Del Hierro-Vega appeals his conviction for aiding and
abetting possession with intent to distribute marijuana, arguing the district
court admitted evidence resulting from his unconstitutional arrest. We affirm
the district court’s denial of Del Hierro’s motion to suppress.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                    No. 17-50885
                                         I.
      Early in the morning of October 22, 2016, Homeland Security
Investigations Special Agent Mike Wright answered a call from Border Patrol
agents near Marfa, Texas. The agents had apprehended a group of five men in
the desert transporting 298 pounds of marijuana in backpacks. Interviewing
the smugglers at the Marfa Border Patrol Station, Wright learned that the
group had been coordinating their smuggling operation with a facilitator in
Mexico. With the smugglers’ permission, Wright and his colleagues used the
smugglers’ cellphone to message the facilitator in Mexico, pretending to be
members of the group. The ploy worked. The facilitator informed agents that
two vehicles would meet them on the side of Highway 90 between Marfa and
Alpine, one to carry the smugglers to Mexico, the other to continue onwards
with the drugs. One of these vehicles would be a dark-colored, possibly brown,
Ford Explorer. The second vehicle was not described. The facilitator assured
them the drivers would bring food and water. The smugglers also provided
Wright and his colleagues the phone number of one of the drivers whom the
agents would later identify as Vincent Chavez—he had transported the
smugglers during an earlier leg of the trip. The facilitator instructed the agents
to wait until sunset for pick up.
      At around 9 p.m., Wright and two fellow agents arrived at the designated
pick-up spot, east of Highway 90’s intersection with a pipeline. Meanwhile,
near Marfa an agent identified a Ford Explorer fitting the description provided
by the facilitator. By now agents had established direct communication with
one of the drivers. When the driver communicated that he was stopping for gas
at a Stripes station, Border Patrol Agent Adam Hershberger was told to surveil
stations in Marfa. At around 10 p.m., Hershberger identified a brown Ford
Explorer stopping at the station. Hershberger saw only one person, a Hispanic
male, in the vehicle.
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                                  No. 17-50885
        In an unmarked car, Agent Hershberger followed the Explorer as it
headed from the gas station in the direction of Alpine, towards the pick-up
location. The driver of the Explorer had difficulty locating the backpackers;
eventually, he told the agents that “it was too hot, [with] too many vehicles . . .
too many cops,” and accordingly abandoned the rendezvous. The Explorer
passed the pick-up location at around 10:30 p.m. and continued towards
Alpine, with Agent Hershberger still on its tail. Agents told Hershberger to
keep an eye on the vehicle because they were also “en route to go effect an
arrest on the driver.” Hershberger attempted to follow the Explorer, but traffic
became heavier as Highway 90 crossed the windy section of the Paisano Pass
between the pick-up location and Alpine, and Hershberger lost sight of the
vehicle. The distance between the pick-up location and Alpine was about 15
miles, roughly a 15-minute drive. Unless the Explorer pulled onto a ranch road,
it was headed for Alpine along Highway 90; so Hershberger continued there
too.
        It is not clear from the record how long the Explorer was out of Agent
Hershberger’s sight or exactly when he relocated the Explorer. At some point
between 10:45 and 11:45 p.m., Agent Hershberger called his colleagues to
notify them that he had relocated the Explorer in the parking lot of an
AutoZone shop in Alpine. The three agents waiting on the side of Highway 90
were picked up and transported to Alpine. It took them about 30 minutes to
join Agent Hershberger in Alpine.
        The agents converged on the AutoZone parking lot at 11:45 p.m. When
they approached the vehicle, agents found Vincent Chavez in the driver’s seat
and Francisco Javier Del Hierro-Vega in the passenger seat. According to
Agent Will Weaver, who approached on the passenger side of the Explorer, in
his experience it was not unusual for a “load vehicle” to have multiple
occupants during smuggling operations, all involved in the crime. The agents
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                                 No. 17-50885
immediately arrested both men. Shortly after the arrest, the agents found two
cellphones on the Explorer’s console; calling the driver’s number, they
confirmed that one of the phones belonged to the driver. Agents handcuffed Del
Hierro and immediately searched his person. Pushing the button on a key fob
found in his pocket, they noticed the lights of a Ford Expedition flashing in a
motel parking lot across the street. On closer inspection of the Expedition,
agents saw a plastic bag within, containing drinks and food—five bottles of
soda and two bags of Doritos. The agents surmised the Expedition was the
second pick-up vehicle, and Del Hierro was the smuggling operation’s second
driver.
      The agents seized the Expedition and transported Del Hierro to the
Presidio County Jail for processing. At around 3 a.m., after discussing
biographical questions—Del Hierro’s name, address, family details—an agent
Mirandized Del Hierro. Del Hierro invoked his right to counsel, at which point
the agent stopped questioning him. Before the agent could leave the room,
however, Del Hierro stated, “I have some questions for you.” In response to Del
Hierro’s questions, the agent described the facts leading to his arrest. Del
Hierro then volunteered an explanation for his presence in the Explorer: he
had been en route to Chihuahua to visit family, fortuitously ran into Chavez,
an old colleague, and stopped for a conversation in the parking lot.
      Del Hierro was charged with aiding and abetting the possession of 100
kilograms or more of marijuana with intent to distribute. He moved to
suppress all statements made after his arrest and all evidence resulting from
the search of his person and his vehicle. Del Hierro argued that probable cause
was lacking, therefore his arrest was unlawful. A magistrate judge presided
over an evidentiary hearing, and           afterwards issued a report and
recommendation denying Del Hierro’s motion. The district court adopted the
magistrate judge’s report and recommendation, finding that the agents had
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                                         No. 17-50885
probable cause to arrest Del Hierro and that evidence derived from his arrest
was admissible. Del Hierro entered a conditional guilty plea, preserving the
right to challenge the denial of the suppression motion. The district court
sentenced him to 18 months’ imprisonment and five years’ supervised release.
Del Hierro appealed.

                                                 II.
       We have jurisdiction to hear Del Hierro’s appeal. 1 Del Hierro filed timely
notice of appeal. When an appellant has preserved the argument, on an appeal
from the denial of a motion to suppress, the court reviews questions of law de
novo and the district court’s factual findings for clear error. 2 The existence of
probable cause is a mixed question of fact and law in which we review the
factual findings underlying the probable cause determination for clear error,
but review the legal question of whether those facts establish probable cause
de novo. 3 “To the extent the underlying facts are undisputed,” the court “may
resolve questions such as probable cause and reasonable suspicion as questions
of law.” 4 The Government bears the burden to prove probable cause in support
of a warrantless arrest. 5
                                                 A.
       The Fourth Amendment guarantees that “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable




       1   28 U.S.C. § 1291; 18 U.S.C. § 3742.
       2   United States v. Portillo-Aguirre, 311 F.3d 647, 651–52 (5th Cir. 2002).
       3   United States v. Hearn, 563 F.3d 95, 102–03 (5th Cir. 2009).
       4 Portillo-Aguirre, 311 F.3d at 651–52 (quoting Blackwell v. Barton, 34 F.3d 298, 305
(5th Cir.1994)).
       5   United States v. Ho, 94 F.3d 932, 936 (5th Cir. 1996).
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                                           No. 17-50885
searches and seizures, shall not be violated.” 6 “A . . . seizure is ordinarily
unreasonable in the absence of individualized suspicion of wrongdoing.” 7
Where government officials lack a warrant, an arrest is lawful only when
supported by probable cause for the belief that the suspect committed a crime. 8
To evaluate whether a warrantless arrest was supported by probable cause,
the panel should consider the events leading up to the arrest and decide
“‘whether these historical facts, viewed from the standpoint of an objectively
reasonable police officer,’ amount to probable cause.” 9 “[P]robable cause is a
fluid concept—turning on the assessment of probabilities in particular factual
contexts,” 10 and “depends on the totality of the circumstances.” 11
       The Court has held that an individual’s presence in the company of a
suspected criminal—even within a car—is insufficient standing alone to
establish reasonable grounds to suspect participation in a crime. 12 However,
when officials have probable cause to believe a criminal transaction has
occurred, there is also probable cause to believe individuals present within the
limited site of the criminal transaction are participants. In Maryland v.
Pringle, following the lawful search of a car, a police officer found baggies of
cocaine behind an armrest. 13 The officer arrested the vehicle’s three occupants


       6   U.S. CONST. amend. IV.
       7 Portillo-Aguirre, 311 F.3d at 652 (quoting City of Indianapolis v. Edmond, 531 U.S.
32, 37 (2000)).
       8Maryland v. Pringle, 540 U.S. 366, 370 (2003) (“A warrantless arrest of an individual
in a public place for a felony, or a misdemeanor committed in the officer’s presence, is
consistent with the Fourth Amendment if the arrest is supported by probable cause.”).
       9   Id. at 371 (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)).
       10   Id. at 370–71 (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)).
       11   Id. at 371.
       12  United States v. Di Re, 332 U.S. 581, 593 (1948) (“Presumptions of guilt are not
lightly to be indulged from mere meetings.”).
       13   Pringle, 540 U.S. at 367–69.
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                                     No. 17-50885
under suspicion of possession with intent to distribute the cocaine; all three
denied association with the drugs. 14 One of the occupants, Pringle, moved to
suppress confessions he made following his arrest on the grounds that the
officer lacked probable cause to infer his participation in the offense merely
from his presence in the car. 15 His motion was denied. 16 The Supreme Court
affirmed the denial. Because the officer had probable cause to believe that a
felony was committed in the “relatively small” spatial context of the car, the
officer also had a basis to infer that Pringle was a participant: “a car passenger
. . . will often be engaged in a common enterprise with the driver.” 17 Given the
absence of facts that would exclude Pringle as one of the participants in the
offense, the Court held there was probable cause to infer Pringle was part of a
common criminal enterprise. 18 The arrest was lawful, and so was admission of
the evidence derived from it. 19
                                          B.
      We consider the totality of the circumstances to evaluate probable cause.
The parties agree that, when the agents converged on the brown Explorer in
the AutoZone parking lot, the agents knew the following facts. Besides the five
smugglers and the facilitator in Mexico, there were at least two individuals
involved in the criminal enterprise in the Marfa–Alpine area, each driving a
separate vehicle. The brown Explorer, identified by Agent Hershberger at the
Marfa Stripes gas station, was likely one of the two vehicles. Hershberger saw



      14   Id. at 368–69.
      15   Id. at 369.
      16   Id.
      17   Id. at 373.
      18   Id. at 373–74.
      19   Id.
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                                           No. 17-50885
only one person in the brown Explorer immediately before the pick-up
attempt—namely Chavez the driver. The driver of the Explorer then
abandoned the pick-up attempt at around 10:30 p.m. Between leaving the
Stripes station and losing Hershberger’s surveillance along the highway, the
brown Explorer did not stop. The brown Explorer was at large for some period
between Agent Hershberger losing sight of it around 10:45 p.m. and his
relocation of the vehicle at some point before around 11:15 p.m., the latest time
at which Hershberger could have called the other agents for their arrival on
the scene at 11:45, given the 30-minute transit time. At 11:45 p.m., Del Hierro
and Chavez were occupants of that brown Explorer in the AutoZone parking
lot.
        The existence of probable cause is a question of probabilities 20—not
certainties—and given the totality of the circumstances, 21 the Government has
carried its burden. 22 Although the agents did not have evidence indicating Del
Hierro’s presence within the brown Explorer during the pick-up attempt, they
had sufficient evidence to infer his participation in the smuggling enterprise.
Del Hierro was found in the car with Chavez, a suspected criminal for whom
the agents had independent probable cause for an arrest. Del Hierro and
Chavez were not meeting in “broad daylight” in a public area; 23 but near
midnight, in an empty parking lot, behind the tinted windows of a brown
Explorer recently involved in an attempted drug-smuggling rendezvous.
Moreover, the agents knew that the brown Explorer had a longstanding
involvement in the enterprise: it was involved in earlier legs of the overall



        20   Id. at 370–71 (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)).
        21   Id. at 371.
        22   See Ho, 94 F.3d at 936.
        23   Di Re, 332 U.S. at 593.
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                                          No. 17-50885
smuggling operation. With five smugglers and nearly three hundred pounds of
marijuana still awaiting pick up, the smuggling enterprise was likely not
complete, even if the most recent pick-up attempt had been abandoned. There
was a significant probability this vehicle and its occupants were still involved
in a continuing criminal enterprise. Like defendant Pringle, 24 Del Hierro was
found inside a vehicle that agents had good reason to believe was still involved
in a criminal conspiracy. There was probable cause for this lawful arrest.

                                              III.
      For these reasons, we AFFIRM the district court’s denial of Appellant’s
motion to suppress evidence.




      24   Pringle, 540 U.S. at 373–74.
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