              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT

                        _____________________

                             No. 97-40854
                        _____________________

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,
                               versus
JUAN FELIPE GARCIA,

                                                 Defendant-Appellant.

*****************************************************************
                      _____________________

                             No. 97-40855
                        _____________________

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,
                               versus
MICHAEL ANGEL GARCIA,

                                             Defendant-Appellant.
_________________________________________________________________

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

                            June 21, 1999

Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

     Michael Garcia and Juan Garcia pleaded guilty to conspiracy

to possess, and actual possession with the intent to distribute,

over 100 kilograms of marijuana in violation of 18 U.S.C. § 2 and

21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846.      They entered their

guilty pleas after an adverse hearing on a motion to suppress

evidence, including their confessions.      The defendants
conditioned their guilty pleas, however, preserving their right

to appeal the denial of their motion.    Thus, the only issue on

appeal is whether the district court erred in refusing to

suppress the evidence.   We conclude that officials did not

violate the defendants’ Fourth Amendment rights, that the

district court did not err in denying their motion to suppress,

and that their convictions must be affirmed.

                                  I

     The parties do not dispute the relevant facts.    The

defendants first encountered Border Patrol agents when they

emerged from the end of a dirt trail in Hebronville, Texas, at

11:15 P.M.    This occasion was not, however, the first time that

the agents knew of the defendants’ presence on the trail.     The

defendants had set off sensors, located at several points along

the trail, earlier in the evening.

     The Border Patrol had placed sensors on this trail because

the agents knew the trail frequently was used by drug smugglers.

According to testimony given by a Border Patrol agent, the trail

provided a convenient route for drug smugglers because it allowed

them to circumvent the Border Patrol’s nearby roadside

checkpoint.   On multiple occasions in the months preceding the

defendants’ arrests, Border Patrol agents learned of drug

smuggling instances along the trail.    Sometimes the agents caught

the smugglers.   Other times, the agents simply discovered drugs

stashed in the brush around the trail.    In the course of these




                                  2
events, the agents   learned that the smugglers would typically

use heavy backpacks to transport the drugs.   The Border Patrol

agents attempted to enhance their effectiveness in patrolling the

area by placing sensors along the known drug route.

     When these sensors alerted to activity on the evening the

defendants were arrested, Border Patrol agents went to the

location of the sensors.   There they discovered several

footprints, left in the dirt, bearing distinctive markings from

the soles of what the agents later learned were the defendants’

shoes.   The agents also noted that these footprints were deep,

indicating that   the persons creating them either carried

something heavy or that those persons were themselves heavier

than average.   The agents attempted to follow the footprints,

hoping to catch up with the persons who had made them.

     Although the agents traveling by foot on the trail never

caught up to the defendants, another agent (who had been informed

of the sensor alert) waited in his patrol vehicle at the end of

the trail.   When the defendants emerged from the trail, they

began walking down a street adjacent to the trail’s exit.    After

allowing the defendants to walk for less than one block, the

agent in the patrol car began to approach the defendants.    The

defendants then saw the patrol vehicle and immediately ducked

into the porch of a house along the road.   The agent (Agent

Charles) left his vehicle and found the defendants hiding in the

shadows of the porch.




                                 3
     After Agent Charles--still some distance from the

defendants--began to ask them questions, the defendants

approached him.   During the ensuing conversation, the defendants

were evasive and appeared nervous.      Agent Charles first asked the

defendants what they were doing.       Juan Garcia answered by saying

that they were visiting a cousin who lived in the house.      Shortly

after Agent Charles made contact with the defendants, Agent

Chavez arrived on the scene.    After he arrived, Agent Chavez also

asked the defendants what they were doing.      Juan told this agent

that they were out hunting.    The defendants, however, had no

hunting gear and it was not hunting season.      The agents also

asked the Garcias where they had come from.      Juan replied that

they had come from his house and he pointed in the relevant

direction.   Agent Charles, however, had seen the defendants come

from a different direction.    The agents also asked the defendants

to show them the bottoms of their shoes.      The soles of their

shoes were identical to the markings made on the trail near the

sensors.   Finally, the agents asked Juan if they could look at

his shoulders.    Juan agreed and the agents saw fresh bruising on

his shoulders in the pattern of strap marks that a heavy backpack

would leave.   After hearing the defendants’ answers and seeing

the bruises, Agent Chavez concluded that the defendants had

probably been smuggling narcotics along the trail.

     Agent Chavez then took the defendants to the nearby

checkpoint station.   Agent Perez was the only agent manning this




                                   4
station and he conducted traffic through the checkpoint as part

of his duties that night.    Agent Chavez told Agent Perez that he

would be leaving the defendants at the checkpoint while he, Agent

Chavez, left to help several other officers search the trail for

the drugs.    The two agents then read the defendants their Miranda

rights and placed them into separate holding cells.    Agent Chavez

left.    Within a few minutes, and after Agent Perez had asked the

defendants if they knew anything about the drugs, Michael

confessed and said that he would help the agents locate the

drugs.    Soon after, Juan also agreed to help the agents locate

the drugs.    The agents and the defendants eventually found that

drugs sometime between 1:00 A.M. and 1:30 A.M.

                                 II

     At the suppression hearing, the defendants argued that the

Border Patrol agents did not have probable cause to arrest at any

time before the defendants gave their confessions.    Furthermore,

they argued that their Fourth Amendment rights were violated when

the agents placed them in the holding cells because that

confinement did not constitute a reasonable detention under Terry

v. Ohio, 392 U.S. 1 (1968), and its progeny.    The defendants

contended that their confessions and agreements to aid in

locating the drugs were the direct result of the unconstitutional

seizure of their persons.    Therefore, they argued, the evidence

of their confessions and the drugs should be suppressed.




                                  5
       The district court disagreed.                   The court concluded that it

was reasonable to place the defendants in the holding cells as

part of an investigatory detention, not rising to an arrest.

Although the court noted that the case presented a close call, it

concluded that a temporary detention was warranted in this case

because of the entirely warranted reasonable suspicion that the

defendants had smuggled narcotics, and because the agents needed

time to sweep the area for drugs.                     Therefore, the court concluded

that the defendants were not, de facto, under arrest without

probable cause at the time they gave their confessions.

                                                III

       We conclude that the district court did not err in denying

the defendants’ motion to suppress the evidence.                              In our view,

however, the denial was correct because the agents had probable

cause to arrest the defendants at the time they transported them

to the checkpoint.             Thus, even if the decision to place the

defendants in the holding cells constituted a de facto arrest,

probable cause warranted that arrest.                       In coming to these

conclusions, we review the district court’s findings of fact for

clear error.         United States v. Ramirez, 145 F.3d 345, 352 (5th

Cir. 1998).         We review the application of those facts to the

relevant Fourth Amendment standards de novo.                           Id.1

   1
    We may, of course, affirm the judgment of the district court for reasons other than those given
or relied on below. See, e.g., Terrell v. University of Texas System Police, 792 F.2d 1360, 1362 n.3
(5th Cir. 1986). In drawing our legal conclusion that probable cause existed before the agents placed
the defendants in holding cells, we have accepted all of the district court’s factual findings. The




                                                 6
                                                  A

       We begin with a word about the relevant law.                    We have long

known that law enforcement officials may arrest an individual in

a public place without a warrant if they have probable cause to

believe that the individual committed a felony.                       See, e.g.,

United States v. Watson, 423 U.S. 411, 423-24 (1976).                      “Probable

cause for a warrantless arrest exists when the totality of facts

and circumstances within a police officer’s knowledge at the

moment of arrest are sufficient for a reasonable person to

conclude that the suspect had committed or was committing an

offense.”        United States v. Wadley, 59 F.3d 510, 512 (5th Cir.

1995).      When considering what a “reasonable person” would have

concluded, we take into account the expertise and experience of

the law enforcement officials.                    See, e.g., United States v.

Ortiz, 422 U.S. 891, 897 (1975).

       It is almost a tautology to say that determining whether

probable cause existed involves a matter of probabilities, but it

nevertheless fairly describes the analysis we undertake.

Brinegar v. United States, 338 U.S. 160, 175 (1949) (“In dealing

with probable cause, however, as the very name implies, we deal

with probabilities.              These are not technical; they are the

factual and practical considerations of everyday life on which

reasonable and prudent men, not legal technicians, act.”); Hart



district court did not clearly err in making any of those findings.




                                                   7
v. O’Brien, 127 F.3d 424, 444 (5th Cir. 1997) (stating that

probable cause requires “a showing of the probability of criminal

activity”), cert. denied, 119 S.Ct. 868 (1999).                               “The probable

cause issue must be analyzed under the ‘totality of the

circumstances’ as to whether there is a ‘fair probability’ that a

crime occurr[ed].”               United States v. Antone, 753 F.2d 1301, 1304

(5th Cir. 1985) (quoting Illinois v. Gates, 462 U.S. 213

(1983)).2

          A “fair probability” does not mean that a reasonable

official would have thought it more likely than not that the

defendant committed a felony.                     United States v. Adcock, 756 F.2d

346, 347 (5th Cir. 1985) (per curium); Antone, 753 F.3d at 1304.

Although the “fair probability” must certainly be more than a

bare suspicion, see Brinegar, 338 U.S. at 175, our court has

rejected the notion that the government must show that a

reasonable person would have thought, by a preponderance of the

evidence, that a defendant committed a crime.                             Antone, 753 F.2d

at 1304; Adcock, 756 F.2d at 347.3                       In short, the requisite “fair

   2
    In discussing the appropriate legal standard under which a court should determine if probable
cause existed, we have taken note of the fact that

          the function of arrest is not merely to produce someone in court for prosecution but
          also to enable a police officer who believes that the person has committed a crime to
          complete his investigation . . . .

United States v. Raborn, 872 F.2d 589, 593 (5th Cir. 1989).

   3
       At one point, we did quote an opinion of the Ninth Circuit that stated,




                                                    8
probability” is something more than a bare suspicion, but need

not reach the fifty percent mark.

                                                   B

       After thoroughly reviewing the record, we have no doubt that

a reasonable officer would have found it a “fair probability”

that the defendants had smuggled drugs.                          At the time Agent Chavez

took the defendants to the checkpoint, the following facts were

known to the agents:               the defendants had just traveled along a

trail notorious for drug smuggling; the defendants took their

journey during the dark hours of the night; the defendants’

footprints indicated that they were carrying something heavy and

at least one of the defendants had bruising on his shoulders

consistent with the known modus operandi of past drug smugglers;

when the defendants first saw a Border Patrol agent approach,

they attempted to hide; upon questioning by agents, the

defendants seemed evasive and nervous; and the defendants



       The test is whether ordinarily, reasonable men, possessed of the experience and knowledge
       of (the arresting officers) would conclude that the transaction . . . was more likely than not
       a criminal transaction.

United States v. Tinkle, 655 F.2d 617, 622 (5th Cir. 1981) (quoting United States v. Bernard, 607
F.2d 1257, 1266-67 (9th Cir. 1979)). In Antone, however, we rejected this standard and we relied
on an intervening Supreme Court decision in doing so. See Antone, 753 F.2d at 1304 (relying upon
Texas v. Brown, 460 U.S. 730 (1983)). Thus, our decision in Antone is the binding precedent. See
also United States v. Burrell, 963 F.2d 976, 986 (7th Cir. 1992) (“Probable cause requires more than
bare suspicion but need not be based o n evidence sufficient to support a conviction, nor even a
showing that the officer’s belief is more likely true than false.”); United States v. Cruz, 834 F.2d 47,
50 (2d Cir. 1987) (“In order to establish probable cause, it is not necessary to make a ‘prima facie
showing of criminal activity’ or to demonstrate that it is more probable than not that a crime has been
or is being committed.”). Compare United States v. Raborn, 872 F.2d 589, 593 (5th Cir. 1989)
(stating that the standard is unsettled in our circuit).




                                                   9
responded to the agents’ questions with obviously false and

inconsistent explanations.

          The question we must address is whether Agent Chavez

reasonably believed that there was a fair probability that the

defendants had smuggled drugs.4                      Although each of the facts just

listed may not, when standing alone, provide sufficiently

incriminating evidence, the coincidence of all these facts surely

would alert the reasonable Border Patrol agent to a fair

probability of drug smuggling.                      See Hart, 127 F.3d at 444

(stating that probable cause may exist even though officers have

observed no unlawful activity).                      The defendants did not supply

the Border Patrol agents with a truthful explanation for their

unusual activity--i.e., traveling along a known drug trail during

the dark hours of the night--and the agents testified that they

knew of no legitimate reason for being on this trail at night.5

See id. at 444 (“The observation of unusual activity for which

there is no legitimate, logical explanation can be the basis for

probable cause.”) (quoting United States v. Alexander, 559 F.2d

1339, 1343 (5th Cir. 1977)).                    We therefore conclude that the

Border Patrol agents had probable cause to arrest Juan and

Michael Garcia before they were placed in the holding cells.

                                                    IV

   4
    The test is an objective one, see, e.g., United States v. Cooper, 949 F.2d 737, 744 (5th Cir.
1991), but we also consider the agent’s knowledge and experience, see, e.g., id. at 745.
   5
       The trail ran through two private ranches.




                                                    10
     For the foregoing reasons, we find that the district court

did not err in denying the defendants’ motion to suppress the

evidence in this case.   The judgment of the district court is

                                                  A F F I R M E D.




                                11
BENAVIDES, Circuit Judge, dissenting:

       I dissent from the majority’s decision because I disagree with

their conclusion that the border patrol agents had probable cause

to arrest Michael and Juan Garcia before Michael Garcia confessed

at the checkpoint station. In finding probable cause, the majority

both contravenes precedent in this Circuit and establishes a

threshold for arrest that threatens to eviscerate protections

afforded by the Fourth Amendment.

       When the Garcias were taken into custody, the border patrol

agents were aware of only two potentially incriminating facts.

First, the Garcias had just left a trail sometimes used by drug

traffickers,     and   they   provided       the     agents        with   inconsistent

statements about that fact.        Second, one of the Garcias might have

been carrying something at some point along the trail, as evidenced

by bruises on one of their shoulders and some deep footprints found

along the trail.       Although these two facts legitimately raised

suspicion, I do not find them sufficient to establish probable

cause.     In   none   of   the   cases      cited      by   the    majority    or   the

government was probable cause for a drug-related arrest founded on

such   scant    information.       In   each       of    those      cases,    extremely

suspicious behavior was combined with at least some evidence

indicating the existence and whereabouts of drugs.                           See United

States v. Adcock, 756 F.2d 346, 347 (5th Cir. 1985) (probable cause

based in part on cocaine found on a person who had just exited the

suspect’s house); United States v. Antone, 753 F.2d 1301, 1304 (5th




                                        12
Cir. 1985) (probable cause based in part on an informant’s tip

concerning the location of marijuana and the smell of marijuana

from a suspect’s vehicle); United States v. Harlan, 35 F.3d 176,

179 (5th Cir. 1994) (probable cause based in part on a “visible

large bulge,” presumed to be cocaine, in the suspect’s jacket);

United   States   v.   Piaget,   915    F.2d   138,    140   (5th   Cir.   1990)

(probable cause based in part on the transfer between the suspects

of a gray canvas bag which was presumed to contain narcotics);

United States v. Willis, 759 F.2d 1486, 1495 (5th Cir. 1985)

(probable caused based, in part, on stuffed duffel bags, presumed

to contain cocaine, in the passenger area of a private luxury

passenger plane).      In this case, the border patrol agents had no

physical   evidence    suggesting      that    the    Garcias   possessed   any

narcotics.    While it was reasonable for the border patrol to

suspect that the Garcias had hidden marijuana somewhere in the

brush, such conjecture does not constitute probable cause to make

an arrest.   Only once Michael Garcia’s admission to Agent Perez

substantiated that conjecture did the border patrol have probable

cause to place the Garcias under arrest.

     Instead of stretching the facts of this case to eke out a

basis for probable cause, I would have this court review the

decision of the district court on the grounds on which it was

decided.   The district court found that the temporary detention of

the Garcias in a jail cell was lawful under Terry v. Ohio, 392 U.S.

1 (1968), based solely on the border patrol agents’ reasonable




                                       13
suspicion that criminal activity was afoot.                Thus, the district

court found that when the Garcias were placed in holding cells,

they were not arrested but only reasonably detained.                    Although

several    Courts   of   Appeals   have,     on   the    basis   of   reasonable

suspicion, sanctioned less drastic uses of force, see, e.g., United

States v. Sanders, 994 F.2d 200, 206 (5th Cir. 1993) (allowing use

of handcuffs on the basis of reasonable suspicion), none have yet

considered whether detaining a suspect in a cell necessarily

exceeds the limits on investigatory detentions prescribed by Terry

and its progeny. Rather than help elucidate this area of unsettled

law,   the   majority    elects    to    muddle    the    previously     settled

protections afforded citizens under the Fourth Amendment.                      I

dissent.




                                        14
