                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                 DEC 22 1997
                                TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                        Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,

 v.                                                         Case No. 97-2009
                                                        (D.C. No. CR. 96-376-HB)
 DANIEL HUEREQUE-MERCADO,                                (District of New Mexico)

               Defendant-Appellant.



                               ORDER AND JUDGMENT*



Before TACHA, HENRY, and LUCERO, Circuit Judges.




       The defendant Daniel Huereque-Mercado appeals the district court’s order denying

his motion to suppress evidence discovered in Mr. Huereque-Mercado’s pickup truck

after a traffic stop by a roving border patrol agent. He argues that the stop was not

supported by reasonable suspicion and therefore violated the Fourth Amendment. We

disagree and therefore affirm the district court’s decision.


       *
               This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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.
                                   I. BACKGROUND

       In an indictment filed in July 1996, the government charged Mr. Huereque-

Mercado with possession of more than 100 kilograms of marijuana with the intent to

distribute it, a violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). Mr. Huereque-Mercado

moved to suppress the evidence that a border patrol agent had discovered in Mr.

Huereque-Mercado’s pickup truck on June 9, 1996. The district court conducted an

evidentiary hearing and denied the motion. Mr. Huereque-Mercado entered a conditional

guilty plea, and the court sentenced him to sixty months’ imprisonment.

       As developed at the evidentiary hearing, the record indicates that Mr. Huereque-

Mercado was stopped by United States Border Patrol Agent Joseph Muniz around 7:30

a.m. on June 9, 1996 as he proceeded north on New Mexico Highway 11, approximately

twenty-one miles north of the Mexican border. Agent Muniz testified that, as he was

driving south on Highway 11, he saw a late model pickup truck with Arizona plates

heading north.

       For several reasons, Agent Muniz suspected that the driver of the truck might be

engaged in smuggling contraband into the United States from Mexico. First, he said,

Highway 11 was a preferred route for smugglers because it allowed them to drive north

and avoid I-10, the more heavily traveled and patrolled interstate highway. Also, a paved

road intersecting Highway 11 runs parallel to the border between the United States and

Mexico about three miles north of it, in some places passing within a quarter of a mile of


                                             2
it. Additionally, the agent testified, the early morning is a preferred time for smugglers

because border patrol agents change shifts then, and, as a result, there are fewer agents on

the road.

       According to Agent Muniz, the kind of vehicle that he saw also made him

suspicious--“[p]ickups are a preferred type of vehicle that smugglers like to use because

of their roominess.” See Rec. vol. I at 57 (Tr. of Evidentiary Hr’g of Sept. 5, 1996).

Agent Muniz also noted that the pickup had Arizona plates. “That caught [his] attention

because Arizona is one of the more popular destinations for smuggling loads that

[originate] out of the Columbus [, N. M.] area.” Id.

       Agent Muniz turned around and started following the truck as it proceeded north

on Highway 11. He then observed that the pickup had a large chrome bumper and was

missing one of its license plate lights. He explained that these observations provided

further grounds for suspicion because he knew of several instances in which the bed of a

pickup had been modified so that it could be used to transport contraband and in which

the same type of bumper had been used to conceal the modifications. Id. at 57-58. Quite

often, he added, smugglers who modify pickup beds fail to reinstall the electrical

connections and, as a result, some of their vehicles’ lights do not function. Id. at 58-59.

       As he followed the pickup, Agent Muniz called for vehicle registration

information. He learned that the truck was registered to two men from Phoenix (neither

one of which was the defendant Mr. Huereque-Mercado) and that the vehicle had not


                                              3
passed through one of the designated ports of entry into the United States. To Agent

Muniz, both of these facts were suspicious. As to the addresses of the owners, he said

that Phoenix was a popular destination city for smuggling. As to the fact that the truck

had not passed through an official port of entry, Agent Muniz said that it was unusual

because most people in the area usually drove into the border town of Palomas, Mexico

to sight-see or shop. Id. at 60.

       Finally, as he followed the vehicle, Agent Muniz noticed air-freshener hanging

from the rear-view mirror. He explained that air-fresheners were frequently used to mask

the odor of illegal drugs. Agent Muniz said that even drug smugglers hiding drugs in

secret compartments in the back of pickups use air freshener, “maybe [because of] a sense

of paranoia, that somebody can detect the odor.” Id. at 62.

       Based on all these facts, Agent Muniz stopped the pickup. As he approached it, he

noticed a vinyl cover over the bed. He saw the driver’s baggage in the cab, along with a

CB radio, a cell phone, and a pager on the dashboard. There was a strong odor of air

freshener. He questioned the driver, Mr. Huereque-Mercado, who said he was a resident

alien and produced a resident alien card. Agent Muniz asked Mr. Huereque-Mercado

who owned the truck, and the agent became even more suspicious when Mr. Huereque-

Mercado, contradicting the information Agent Muniz had received over the radio about

the truck’s registration, said that he owned it.




                                               4
       Agent Muniz then asked permission to search the truck, and Mr. Huereque-

Mercado agreed. He discovered several large packages wrapped in paper in the bed of

the pickup and asked Mr. Huereque-Mercado what they contained. After Mr. Huereque-

Mercado smiled and shrugged his shoulders, Agent Muniz placed him under arrest.

Agent Muniz then brought his drug-sniffing dog over to the truck. The dog alerted to the

packages in the back of the pickup, and Agent Muniz discovered that they contained 673

pounds of marijuana.

       On cross-examination, Mr. Huereque-Mercado extracted several admissions that

impeached Mr. Muniz’s testimony to some degree. First, Agent Muniz admitted that

there was no indication that Mr. Huereque-Mercado knew about the morning shift change

of border patrol agents. Also, the agent explained that the shift change occurred at 6:00

a.m., significantly earlier than the 7:30 a.m. stop and arrest at issue here. Cross-

examination also revealed that Agent Muniz had no idea what percentage of vehicles on

Highway 11 had out-of-state plates, what percentage were pickup trucks, or what

percentage of pickup trucks had large bumpers. He also admitted that the truck was not

dusty or muddy, as it might have been if it had crossed the border by leaving paved roads

to avoid detection.

       Mr. Huereque-Mercado then called several witnesses in support of his motion to

suppress. An engineer from the New Mexico Highway and Transportation Department

testified that, in 1994, the average daily traffic count was 2,649 vehicles (north and south


                                              5
bound) for the section of Highway 11 at issue in this case. See Rec. vol. II at 85 (Tr. of

Evidentiary Hr’g of Sept. 5, 1996). For 1995, the projected traffic count was 2,714. See

id. at 86. A service department manager for a car dealership testified that it is “quite

common” for individuals buying pickups to order special bumpers that may be used for

towing. See id. at 89. After examining a photograph of the bumper on Mr. Huereque-

Mercado’s pickup, the manager said that he had seen many like it. The manager also said

that it was not unusual to find a pickup truck with a larger bumper that had only one

license plate light. However, on cross-examination the manager admitted that there was

no towing ball on Mr. Huereque-Mercado’s truck and that, as a result, the large bumper

did not appear to have been used for the most common lawful purpose.

       Mr. Huereque-Mercado then presented testimony from two witnesses who had

counted the passing vehicles on Highway 11 between approximately 7:00 and 8:00 a.m. at

the location of the instant traffic stop. The first of these witnesses testified that on one

morning she had counted forty-one vehicles, noting that twenty of them were pickup

trucks, vans, or sport utility vehicles and that one or two of the vehicles had Arizona

plates. See id. at 94-95. She also saw three border patrol vehicles.

       The second of these witnesses testified that he had counted vehicles at the same

time at the same spot on two other mornings. On the first of these mornings, he counted

forty-five vehicles (including twenty-two vans, pickups, or sport utility vehicles; ten

vehicles with either out-of-state plates, Mexican plates, or no plates at all; and five law


                                               6
enforcement vehicles). See id. at 106-07. On the second morning, he counted fifty-three

vehicles (twenty-nine vans, pickups, or sport utility vehicles; thirteen vehicles with out-

of-state plates, Mexican plates, or no plates at all; and one border patrol vehicle). See id.

at 109-110.

       At the conclusion of the evidence, the district court issued an oral ruling denying

Mr. Huereque-Mercado’s motion to suppress. In its subsequent written order, the court

relied on the following factors in concluding that Agent Muniz had a reasonable suspicion

that Mr. Huereque-Mercado was engaged in criminal activity as he drove north on

Highway 11 on the morning of June 9, 1996:

              (1) New Mexico [H]ighway 11 is the only paved road in the
              area leading directly north from the United States-Mexico
              border and is a notorious smuggling passageway for both
              contraband and illegal aliens.
              (2) The time at which he first noticed Defendant’s vehicle is the station shift
              change, a preferred time for smugglers to attempt to move
              contraband north.
              (3) The type of vehicle Defendant was driving is commonly
              used to smuggle drugs or aliens.
              (4) Defendant’s vehicle had an Arizona license plate, which is [a] common
              destination for many illegal smuggling loads crossing the
              border.
              (5) The port of entry lane check indicated the vehicle had not
              come though the border.
              (6) An air freshener was hanging from the vehicle’s mirror; such
              air fresheners commonly are used to mask the odor of illegal
              drugs.
              (7) Based on his experience, the vehicle’s unusually large rear
              bumper and the missing rear license plate light indicated the
              bed of the truck may have been altered.

Rec. vol. I at 29-30 (Memorandum Opinion and Order filed Sept. 13, 1996).

                                              7
                                    II. DISCUSSION

       On appeal, Mr. Huereque-Mercado challenges the district court’s conclusion that

when he stopped the pickup Agent Muniz had a reasonable suspicion that Mr. Huereque-

Mercado was committing a crime. He contests each factor relied on by the district court

and the government, arguing that the stop violated the Fourth Amendment and the

evidence seized should therefore be suppressed.

       In reviewing the denial of a motion to suppress, we must accept the district court’s

factual findings unless they are clearly erroneous. United States v. Lopez-Martinez, 25

F.3d 1481, 1483 (10th Cir. 1994). We “must consider the evidence in the light most

favorable to the government.” United States v. Maestas, 2 F.3d 1485, 1490 (10th Cir.

1993). However, we review de novo the ultimate determination of whether a search or

seizure is reasonable under the Fourth Amendment. Lopez-Martinez, 25 F.3d at 1483.

       As the parties and the district court have noted, border patrol officers on roving

patrol are not required to establish probable cause before making a traffic stop. See

United States v. Brignoni-Ponce, 422 U.S. 873, 881-82 (1975). Instead, border patrol

agents may make traffic stops upon a showing that “‘they are aware of specific articulable

facts, together with rational inferences from those facts, that reasonably warrant

suspicion’ that those vehicles’ occupants may be involved in criminal activity.” United

States v. Cantu, 87 F.3d 1118, 1121 (10th Cir.) (quoting Brignoni-Ponce, 422 U.S. at

884), cert. denied, 117 S. Ct. 265 (1996). The Supreme Court has explained that this


                                             8
reasonable suspicion standard reflects a balancing of “the importance of the governmental

interest at stake, the minimal intrusion of a brief stop, and the absence of practical

alternatives for policing the border.” Brignoni-Ponce, 422 U.S. at 881; see also Lopez-

Martinez, 25 F.3d at 1483 (discussing Brignoni-Ponce).

       In Brignoni-Ponce, the Court set forth a list of eight factors that border patrol

agents may consider in determining whether there is reasonable suspicion to stop a

vehicle near the border: (1) the characteristics of the area in which the vehicle is

encountered; (2) the proximity to the border; (3) the usual patterns of traffic; (4) the

agent’s previous experience with alien traffic; (5) information about recent illegal border

crossings in the area; (6) the driver’s behavior, including any obvious attempts to evade

the agents; (7) characteristics of the vehicle; and (8) the appearance that the vehicle is

heavily loaded. Brignoni-Ponce, 422 U. S. at 884-85; see also United States v.

Monsisvais, 907 F.2d 987, 990 (10th Cir. 1990) (discussing these Brignoni-Ponce

factors). This list is not exhaustive, and “[n]either Brignoni-Ponce nor its progeny

identify a minimum number of factors necessary to constitute reasonable suspicion or any

outcome-determinative criteria.” Lopez-Martinez, 25 F.3d at 1484.

       Instead, the determination of reasonable suspicion must be made by examining

“the totality of the circumstances.” Cantu, 87 F.3d at 1121 (citing United States v.

Cortez, 449 U.S. 411, 417 (1981)). Border patrol agents are entitled to assess the facts in

the light of their experience, and, as a result, we have recognized that they “may perceive


                                              9
meaning in actions that appear innocuous to the untrained observer.” Id. (citing Brown v.

Texas, 443 U.S. 47, 52 & n.2 (1979)). Additionally, reasonable suspicion may be based

on “a series of acts, each of them perhaps innocent in itself, but which taken together

warranted further investigation.” Lopez-Martinez, 25 F.3d at 1484 (10th Cir. 1994)

(citing Terry v. Ohio, 392 U.S. 1, 22 (1968)).    Although “the necessary ‘level of

suspicion is considerably less than proof of wrongdoing by a preponderance of the

evidence,’ the Fourth Amendment requires ‘some minimal level of objective

justification.’” Cantu, 87 F.3d at 1121 (quoting United States v. Sokolow, 490 U.S. 1, 7

(1989) (quoting I.N.S. v. Delgado, 466 U.S. 210, 217 (1984))).

       The reasonable suspicion analysis must be considered on a case-by-case basis,

United States v. Martin, 15 F.3d 943, 950 (10th Cir. 1994), and cannot be reduced to “‘a

neat set of legal rules,’” Lopez-Martinez, 25 F.3d at 1484 (quoting Sokolow, 490 U.S. at

7). However, it is useful to consider some of our prior decisions in this area, beginning

with those cases in which we have concluded that traffic stops made by border patrol

agents comported with the Fourth Amendment.

       In Lopez-Martinez, border patrol agents observed a van and a sedan exiting the

interstate near the Mexican border and less than ten miles south of a checkpoint. The

sedan left the interstate and proceeded on a state highway that was a known smuggling

route. The agent following the vehicles noticed that there were four Hispanic men in the

sedan. When the agent pulled in between the van and the sedan, the sedan dropped back


                                            10
about 100 yards. Both vehicles were driving about thirty miles per hour in a fifty-five

miles per hour zone, and the agent saw a passenger in the van stare at the agent for twenty

to thirty seconds and then drop back out of sight. In affirming the district court’s decision

that the agent had the necessary reasonable suspicion that the vehicles were transporting

undocumented aliens, we identified the following factors: the characteristics of the area

(the highway in question passed through minimally populated desert and was a slower

and more circuitous route than the interstate and a large number of illegal aliens had been

apprehended there); the proximity of the area to the border; the usual patterns of traffic

on the particular road (the record indicated that the time of the stop was a period of

particularly low traffic); the officer’s experience; and the behavior of the driver and

passengers.

       Similarly, in United States v. Barbee, 968 F.2d 1026 (10th Cir. 1992) we upheld

the district court’s finding of reasonable suspicion when the agents observed the

defendant’s car traveling north on a known smuggling route and further observed the

cars’ passengers crouching down out of sight after the agents followed the car and shined

their high beam lights on it. We reasoned that two agents with experience in the area had

testified about “the location of the road, the typical nature of the traffic at that time of

year and that time of day . . . , and their experience with alien and drug smugglers.”

Barbee, 968 F.2d at 1029. We also emphasized the passengers’ suspicious behavior.

Several of our other decisions have followed reasoning similar to Lopez-Martinez and


                                               11
Barbee in concluding that border patrol agents had reasonable suspicion to effect a brief

investigative detention. See, e.g., United States v. Pollack, 895 F.2d 686 (10th Cir. 1990)

(finding reasonable suspicion when a pickup truck passed through a checkpoint at 3:00

a.m., the driver asked for directions to the nearest gas station, and when, forty-five

minutes later, sensors detected the same pickup traveling close to another vehicle on a

highway that circumvented the checkpoint); United States v. Merryman, 630 F.2d 780

(10th Cir. 1980) (finding reasonable suspicion when the defendant’s truck stopped before

coming to a checkpoint and then made a U-turn and drove away, and when an agent

following the truck then observed lumpy objects in the back); United States v. Leyba, 627

F.2d 1059 (10th Cir. 1980) (finding reasonable suspicion when officers observed

defendant’s car traveling north on a known smuggling route at 3:00 a.m., the car drifted

over the center line on several occasions, and agents following the vehicle suspected that

the passengers were attempting to avoid detection); United States v. Sperow, 551 F.2d

808 (10th Cir. 1977) (finding reasonable suspicion when agents observed a heavily-

loaded truck with a camper traveling on an east-west highway close to the border and then

turning north).

       In contrast to these cases, other decisions illustrate the kinds of circumstances in

which we have found that border patrol agents lacked reasonable suspicion. For example,

in United States v. Guillen-Cazares, 989 F.2d 380 (10th Cir. 1993), agents observed two

cars driving close together on a state highway that intersected I-25 near a checkpoint at


                                             12
about 10:25 p.m. The agents noticed that the first car appeared to contain quite a few

people and that the second car seemed to be riding a little low. As they approached the

cars, one agent noticed that he could no longer see the passenger in the second car. We

reversed the district court’s conclusion that these facts established reasonable suspicion to

stop the two cars. We noted that the facts in this case--a car turning south instead of north

and the fact that the lead vehicle contained more people than the second car--did not fit

the classic smuggling pattern described by the agents during their testimony at the

suppression hearing. We said that “the fact [that the] defendant was traveling at night on a

known smuggling road, with one passenger, in a vehicle which slanted to the rear and was

following a car with several passengers” and “the fact [that] the passenger slouched down

at some point after the car entered I-25 south, . . . do not reasonably warrant suspicion

[that] the defendant’s vehicle was smuggling aliens or narcotics.” Guillen-Cazares, 989

F.2d at 384.

       United States v. Monsisvais, 907 F.2d 987 (10th Cir. 1990) provides another

illustration of facts failing to establish reasonable suspicion. Around 7:30 p.m., border

patrol agents observed a pickup truck with a camper shell that was “riding extremely

heavy” traveling north on a highway that bypassed an I-25 checkpoint. Monsisvais, 907

F.2d at 988. The truck had Arizona plates, and the agent said that as the truck approached

the on-ramp to I-25 north, the driver slowed down, corrected his turn, and then turned

onto I-25 south instead. The agent believed that the driver did this in response to seeing a


                                             13
border patrol car. Upon considering this evidence, we reversed the district court’s

conclusion that the stop was supported by reasonable suspicion. We noted that the record

was barren as to the legitimate uses of the state highway. We also attached little

significance to the Arizona plate. We further reasoned that the driving maneuvers

observed by the agents were not significant. We noted that according to the agents’

testimony, they would have been suspicious whether the truck had turned north (the

direction that smugglers usually travel) or south (the direction that smugglers travel when

they think they may be under observation). We added that the agents had admitted that

the intersection was confusing and that out-of-state drivers might well slow down for

innocent reasons.

       United States v. Miranda-Enriquez, 941 F.2d 1081 (10th Cir. 1991) provides a

final example of border patrol agents’ observations that we found insufficient to establish

reasonable suspicion. In that case, agents observed a car with out-of-state plates traveling

north at 9:00 p.m. along a state highway known for smuggling. They saw dust on the car

as it passed by and noticed several unidentified shapes in the back seat. As he flashed his

lights on the car when it passed though an intersection, the driver appeared “frozen” and

did not look left or right. Miranda-Enriquez, 907 F.2d at 1082. In finding a lack of

reasonable suspicion, we reasoned that the agent had acknowledged that it was not

unusual for cars on the highway in question to be covered with dust, that the agent

provided no specific information about the likelihood of encountering smugglers at the


                                            14
time of day that the stop was made, and that little significance should be attached to the

driver’s failure to look left or right when the agent saw him because it was possible to see

oncoming cars before reaching the intersection.

       In applying these decisions to the instant case, we first note that in explaining his

decision to stop Mr. Huereque-Mercado on the morning of June 9, 1996, Agent Muniz

identified four of the factors listed by the Supreme Court in Brignoni-Ponce as grounds

for reasonable suspicion: (1) the characteristics of the area in which he encountered Mr.

Huereque-Mercado’s truck (New Mexico Highway 11, a route preferred by smugglers,

according to the agent’s testimony); (2) the proximity of the area to the border (about

twenty-one miles north of it); (3) the usual patterns of traffic on the road in question (i.e.

the fact that he observed Mr. Huereque-Mercado at 7:30 a.m., a preferred time for

smugglers, according to the agent); and (4) the characteristics of the vehicle (a pickup

with a large bumper, a missing license plate light, and air freshener hanging from the

rearview mirror). Although several of these factors may have appeared entirely innocent

to the untrained observer, Agent Muniz was entitled to rely on his experience as a border

patrol agent in concluding that the totality of the circumstances warranted further

investigation. See Lopez-Martinez, 25 F.3d at 1484 (noting that a series of innocent acts

may justify further investigation and that the border patrol agent may consider the totality

of the circumstances in making the determination of whether he has the reasonable

suspicion necessary to make a stop). Moreover, the factors identified by Agent Muniz in


                                              15
justifying the stop are similar to those relied on by the border patrol agents in several of

our prior decisions that have upheld the determination of reasonable suspicion. See

Lopez-Martinez, 25 F.3d at 1485-86 (considering, inter alia, the proximity to the border,

the time of day, the agent’s testimony that the road in question was preferred by

smugglers, and the fact that the defendant’s van was able to conceal several passengers

from passersby); Barbee, 968 F.2d at 1029 (considering, inter alia, the location of the

road, the typical traffic, and the agents’ experience with smugglers); Pollack, 895 F.2d at

690-91 (concluding that the time of day, the fact that the defendant was driving on a

known smuggling route, and the fact that he was driving a large vehicle capable of

hauling many people all supported a finding of reasonable suspicion); Lebya, 627 F.2d at

1063-64 (concluding that the time of day, the nature of the road, and the appearance of

the vehicle supported finding of reasonable suspicion); Sperow, 551 F.2d at 880-881

(concluding that the fact that the defendant was driving a heavily-loaded truck a mile and

a half from the border supported a finding of reasonable suspicion).

       On the other hand, we acknowledge that some of the reasons offered by Agent

Muniz as grounds for stopping Mr. Huereque-Mercado are of questionable significance in

undertaking the reasonable suspicion analysis. In particular, several of our decisions have

criticized the border patrol’s reliance on a vehicle’s out-of-state license plates as grounds

for making a stop. See, e.g., United States v. Martinez-Cigarroa, 44 F.3d 908, 911 (10th

Cir. 1995) (“[W]hile out-of-state license plates may be a relevant consideration in some


                                              16
circumstances, this factor in and of itself is not significantly probative of illegal activity

and adds little to the reasonable suspicion equation.”); Monsisvais, 907 F.2d at 991

(“Although Arizona cars must certainly be less common on this stretch of road than those

bearing New Mexico plates, we cannot find any basis in the record from which to

conclude that Arizona-plated vehicles are any more likely to be transporting aliens . . .

than are vehicles bearing the license plates of New Mexico, or, for that matter, Texas or

Colorado.”); Lebya, 627 F.2d at 1064 (“That the vehicle bore out-of-state plates, as do 50

percent of all vehicles in which aliens are apprehended, is of little significance here

simply because Arizona is relatively near.”).

       Additionally, we agree with Mr. Huereque-Mercado that there are flaws in Agent

Muniz’s reasoning regarding the significance of the time of day when the stop was made.

Although Agent Muniz testified that the early morning was a preferred time for smugglers

because that was when border patrol agents changed shifts, he also stated that the shift

change actually occurred around 6:00 a.m., an hour and a half before the stop at issue

here. Moreover, as we have noted the testimony offered by Mr. Huereque-Mercado about

the pattern of traffic on Highway 11 at the time when the stop actually occurred indicated

that several agents were on patrol then, thus undermining Agent Muniz’s suggestion that

smugglers could more easily avoid encountering law enforcement agents by driving at

that hour. Also, the testimony presented by Mr. Huereque-Mercado regarding special

bumpers on pickup trucks indicated that such bumpers were more common and had more


                                               17
legitimate uses than one might have concluded from Agent Muniz’s testimony alone.

Finally, we note that unlike some of the cases in which we have found reasonable

suspicion, Agent Muniz did not provide specific information about the number of illegal

aliens or drug smugglers arrested in the area. See Lopez-Martinez, 25 F.3d at 1485 n.3

(considering agents statistical testimony about the number of undocumented aliens

arrested in the area).

       Nevertheless, because we must consider the totality of the circumstances and view

the record in the light most favorable to the government, we conclude that the district

court properly held that the stop of Mr. Huereque-Mercado’s truck was supported by

reasonable suspicion. Even though Mr. Huereque-Mercado established that some of the

factors on which Agent Muniz relied in justifying the stop were not as unambiguously

suspicious as Agent Muniz’s testimony suggested, the district court was still entitled to

rely on that testimony to conclude that these factors provided some basis for reasonably

suspecting Mr. Huereque-Mercado of transporting contraband. Moreover, in comparing

the facts of the instant case to those decisions in which we have found an absence of

reasonable suspicion, we note that those other decisions did not involve the combination

of suspicious vehicle characteristics and other Brignoni-Ponce factors that is present here.

See Guillen-Cazares, 989 F.2d at 382 (vehicle traveling at night on a known smuggling

route and observed to be slanting toward the rear but no indication that it had been

modified to carry contraband); Monsisvais, 907 F.2d at 988 (vehicle “riding extremely


                                            18
heavy” but no indication that agents identified any other suspicious characteristics);

Miranda-Enriquez, 941 F.2d at 1082 (concluding that dust on a car was not grounds for

suspicion and noting no other suspicious characteristics). After observing a pickup (with

a large bumper, a missing license plate light, and air-freshener hanging from the rearview

mirror) driving twenty-one miles north of the Mexican border on a highway thought by

agents to be preferred by smugglers at a time thought by agents to be preferred by

smugglers, and after receiving the information that the truck had not passed through a

regular border checkpoint, Agent Muniz had a “‘particularized and objective basis for

suspecting [Mr. Huereque-Mercado] of criminal activity.’” Lopez-Martinez, 25 F.3d at

1487 (quoting Cortez, 449 U.S. at 417-18). Allowing border patrol agents to make a

traffic stop when presented with this particular combination of factors does not vest the

agents with unbridled discretion in violation of the Fourth Amendment.

                                   III. CONCLUSION

       For the reasons set forth above, the decision of the district court is affirmed.

The mandate shall issue forthwith.

                                                  Entered for the Court,



                                                  Robert H. Henry
                                                  Circuit Judge




                                             19
