     Case: 10-40487     Document: 00511555459         Page: 1     Date Filed: 07/29/2011




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

                                                                            FILED
                                                                            July 29, 2011
                                       No. 10-40487
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

FERNANDO MUNOZ-MARTINEZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:09-CR-2877


Before JONES, Chief Judge, and HIGGINBOTHAM and SOUTHWICK, Circuit
Judges.
PER CURIAM:*
        Fernando Munoz-Martinez pled guilty to transporting an illegal alien
within the United States. He conditioned his plea on the outcome of a motion
to suppress the evidence acquired by the Border Patrol agents who pulled over
his vehicle. The district court denied the motion. We AFFIRM.
        On the evening of December 2, 2009, Fernando Munoz-Martinez was
driving a pickup-truck south on Interstate 35. Near Artesia Wells, Texas, which


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-40487

is about 56 miles north of the border with Mexico, two Border Patrol agents
observed a pickup-truck exit onto Highway 133. Ten to 15 minutes later, the
agents saw what appeared to be the same truck return onto I-35 and head north.
After following the vehicle for seven miles, the agents suspected that it was
involved in alien smuggling. We discuss the basis of their suspicion below. The
agents made an investigatory stop and discovered eight illegal aliens in the
truck, including the driver, Munoz-Martinez.
      Munoz-Martinez was charged in a two-count indictment with transporting
aliens who were in the United States unlawfully. See 8 U.S.C. § 1324; 18 U.S.C.
§ 2. Munoz-Martinez pled guilty to one count, conditioning his plea on the
outcome of a motion to suppress evidence. He argued that the agents lacked
reasonable suspicion to justify an investigative stop.          After holding an
evidentiary hearing, the district court denied the motion. Munoz-Martinez was
sentenced to 12 months plus a day of imprisonment and to three years of
supervised release. Munoz-Martinez filed a timely appeal.
                                 DISCUSSION
      In reviewing the denial of a motion to suppress evidence, this court
reviews the district court’s factual findings for clear error and its legal
conclusions de novo. United States v. Rangel-Portillo, 586 F.3d 376, 379 (5th Cir.
2009). The denial of the motion is reviewed in the light most favorable to the
prevailing party. United States v. Garcia, 604 F.3d 186, 189-90 (5th Cir. 2010).
      The Fourth Amendment of the United States Constitution permits roving
Border Patrol agents to “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). The following factors inform whether reasonable suspicion existed:
      (1) proximity to the border; (2) characteristics of the area; (3) usual
      traffic patterns; (4) agent’s previous experience in detecting illegal

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                                  No. 10-40487

      activity; (5) behavior of the driver; (6) particular aspects or
      characteristics of the vehicle; (7) information about recent illegal
      trafficking in aliens or narcotics in the area; and (8) the number,
      appearance, and behavior of the passengers.
United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001) (citations omitted).
“No single factor is dispositive,” rather, “each case must be examined based on
the totality of the circumstances known to the agents at the time of the stop and
their experience in evaluating such circumstances.” Rangel-Portillo, 586 F.3d
at 380 (quotation marks and citation omitted). A collection of factors that
usually constitute innocent behavior may add up to reasonable suspicion in the
mind of an experienced officer. Jacquinot, 258 F.3d at 427-28.
      A vital element in this analysis “is whether the agents had reason to
believe that the vehicle in question recently crossed the border.” Id. at 428
(citation omitted). We have generally viewed “a car traveling more than 50 miles
from the border . . . as being too far from the border to support an inference that
it originated its journey there.” Id. Munoz-Martinez was first identified by the
Border Patrol agents 56 miles north of the border. The agents testified that
according to a computer check of the licence plate, Munoz-Martinez had not
recently passed through the border checkpoint on I-35.            In light of this
information, the proximity factor does not weigh in favor of reasonable suspicion.
      Also important is that “a road’s reputation as a smuggling route adds to
the reasonableness of the agents’ suspicion.” Id. at 429 (quotation marks,
emphasis, and citation omitted). The agents testified that the area where
Munoz-Martinez was stopped is notorious for drug-and alien-smuggling activity.
Moreover, Munoz-Martinez’s purple, low-riding pickup-truck aroused suspicion,
as it was atypical of traffic in the area, which primarily included vehicles related
to the oil industry, ranching, and hunting.        See United States v. Moreno-
Chaparro, 180 F.3d 629, 632-33 (5th Cir. 1998); United States v. Inocencio, 40
F.3d 716, 723 (5th Cir. 1994). There was testimony that a truck such as this



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traveling on the state highway in this area after exiting the Interstate was
unusual.
      Munoz-Martinez’s driving behavior was also reasonably suspicious. See
Jacquinot, 258 F.3d at 429-30. He initially drove south on I-35, exited into a
rural area with no houses, then returned to I-35, northbound. While the agents
were driving parallel to Munoz-Martinez’s vehicle, they witnessed the head of
a previously unseen third passenger “pop up” between the driver and the second
passenger, and then return back down. Further, it was suspicious that Munoz-
Martinez dramatically slowed his vehicle’s speed in half, to about 30 miles-per-
hour in a 65 miles-per-hour zone, when he became aware of the agents’ presence,
though he was never speeding. See id.
      Also to be considered is that neither agent had been employed by the
Border Patrol for more than a year-and-a-half. One of the agents testified about
his experience with smugglers’ reactions to law enforcement and stated that he
had been involved in smuggling stops after witnessing “bailouts” five or six
times. Such testimony indicates that during his brief time as an agent, he had
accumulated pertinent experience and that he was relatively knowledgeable.
See United States v. Zapata-Ibarra, 212 F.3d 877, 882 (5th Cir. 2000). Moreover,
an agent’s inexperience, by itself, does not make his suspicions unreasonable.
United States v. Neufeld-Neufeld, 338 F.3d 374, 382 (5th Cir. 2003).
      We find that the totality of these circumstances created the requisite
reasonable suspicion that the occupants of the pickup-truck were involved in
alien smuggling. See Jacquinot, 258 F.3d at 430. The district court did not err
when it denied Munoz-Martinez’s motion to suppress the evidence.
      AFFIRMED.




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