                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 16, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 03-41419
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

DONALD JOSEPH WALTER,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. L-02-CR-1254-1
                      --------------------

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Donald Walter (“Walter”) was convicted in a stipulated bench

trial of one count of transportation of an undocumented alien

within the United States for private financial gain by means of a

motor vehicle in violation of 8 U.S.C. § 1324(a)(1)(B)(i).      Walter

argues that the district court erred in denying his motion to

suppress evidence obtained from a roving border patrol stop.

Walter contends that the border patrol agents lacked reasonable




     *
       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this opinion should not be published and is not precedent except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.
                                 No. 03-41419
                                      -2-

suspicion to conduct the stop and that he did not give voluntary

consent for the agents to search his tractor-trailer.

Reasonable suspicion

     When reviewing the district court’s denial of a motion to

suppress, this Court reviews the district court’s factual findings

for clear error and its legal conclusion that reasonable suspicion

existed is reviewed de novo.           United States v. Jacquinot, 258 F.3d

423, 427-28 (5th Cir. 2001), cert. denied, 534 U.S. 1116 (2002).

The evidence presented at a suppression hearing must be viewed in

the light most favorable to the prevailing party at the district

court level.      Id. at 427 (citing United States v. Inocencio, 40

F.3d 716, 721 (5th Cir. 1992)).            In determining whether reasonable

suspicion     exists,    this   Court      examines     the     totality    of   the

circumstances surrounding the stop.               United States v. Galvan-

Torres,    350    F.3d   456,   458    (5th   Cir.     2003).      Of   the   eight

nonexclusive      factors   used      to   establish    reasonable      suspicion,

Jacquinot, 258 F.3d at 427-28 (citing United States v. Brignoni-

Ponce, 422 U.S. 873, 884 (1975)), five are relevant to the instant

case:     (1) characteristics of the area; (2) the arresting agents’

prior experience with criminal activity; (3) proximity of the area

to the border; (4) information about recent illegal trafficking in

aliens in the area; and (5) appearance of the vehicle.

     (1) Characteristics of the area

     At     the    suppression        hearing,    Agent       Alfredo      Coronado

(“Coronado”), who ordered the stop, testified that he observed that
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                                      -3-

Walter’s tractor-trailer was parked with its lights off at a

darkened corner of the Gateway Center parking lot.              Coronado noted

that   in   the    past   two   years,    he   was   personally   involved      in

approximately six cases concerning the loading of illegal aliens in

this particular parking lot.         Coronado testified that most of the

interceptions of vehicles smuggling illegal aliens occurred between

10:00 p.m. and 2:00 a.m. and that the instant incident occurred at

approximately 10:00 p.m. He further testified that, from his

experience    in    observing    trucks    unloading     merchandise    at     the

shopping center, the time of night was unusual for Walter’s truck

to be parked in the lot.        This factor weighs in favor of reasonable

suspicion.

       (2) Arresting agents’ prior experience

       Agent Coronado testified that he had worked as a border patrol

agent for seven years prior to the instant incident and had

specialized in the offense of smuggling illegal aliens.                   Agent

Manuel   Morales,     who   assisted     another     border   patrol   agent    in

stopping Walter’s tractor-trailer, testified that he had worked as

an agent for six years and in the course of a given month was

likely to conduct anywhere from 10 to 50 arrests.                  Agent Louis

Collins, who was also involved in Walter’s stop, had worked as a

supervising border patrol agent for over eight years. Accordingly,

this factor supports a finding of reasonable suspicion.
                               No. 03-41419
                                    -4-

      (3) Proximity to the border

      When a car is first observed within fifty miles of the border

the proximity test is satisfied.        Jacquinot, 258 F.3d at 428.         The

parties agree that the Gateway Center is approximately five miles

from the border between the United States and Mexico. Accordingly,

this factor weighs in favor of reasonable suspicion.

      (4)   Information about recent illegal trafficking in aliens
            in the area

      As previously noted, Agent Coronado testified that he had been

involved in six different incidents of illegal alien smuggling in

the Gateway Center parking lot.         He stated that the confidential

informant who alerted him about Walter’s tractor-trailer assisted

the   border   patrol   a   month   prior   to   the   instant   incident   in

apprehending 27 undocumented aliens in the same parking lot.            This

factor weighs in favor of reasonable suspicion.

      (5) Appearance of the vehicle

      Agent Coronado testified that the tractor-trailer was unusual

because it was an Allied moving van, atypical of the types of

trucks that unloaded merchandise at Gateway Center.               He further

testified that a vehicle of that type would normally park at the

nearby Santa Maria Truck Stop.       He discounted the possibility that

the vehicle could have been unloading merchandise at one of the

stores at night because the shopping center was closed and the

vehicle was parked with its lights off. The fact that a van parked

near the tractor-trailer added to the agents’ reasonable suspicion

of the vehicle, as such a scenario is consistent with the transfer
                            No. 03-41419
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of individuals or contraband.   Accordingly, this factor supports a

finding of reasonable suspicion.

     As a result of the foregoing analysis, the district court’s

factual findings were not clearly erroneous and its conclusion that

reasonable suspicion for the stop existed is adequately supported

by the totality of the circumstances.

     Voluntary consent

     Walter argues both that he did not give consent for his

tractor-trailer to be searched, and that even if he did, it was

involuntary.

     This court “will not reverse the district court’s finding that

consent was voluntary unless it is clearly erroneous.”       United

States v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993)      (citing

United States v. Oliver-Becerril, 861 F.2d 424, 425–426 (5th Cir.

1988)).   If a finding is based on oral testimony at a suppression

hearing, the “clearly erroneous standard is particularly strong

since the judge had the opportunity to observe the demeanor of the

witnesses.”    Id. (quoting United States v. Sutton, 850 F.2d 1083,

1086 (5th Cir. 1988)).

     The record reflects that the district court’s conclusion that

Walter’s consent was voluntary is not clearly erroneous.   Although

Walter testified that border patrol agents approached him with

their guns drawn, handcuffed him, and at no time requested the keys

to his vehicle, the district court was entitled to disbelieve

Walter’s account and find the testimony of the agents at the
                           No. 03-41419
                                -6-

hearing credible.   See United States v. Shabazz, 993 F.2d 431, 438

(5th Cir. 1993).    Specifically, Agent Nicholas Bolden (“Bolden”)

testified that when he approached Walter and asked for the keys,

Walter retrieved them from the ignition and handed them to Bolden.

Bolden testified that at no time did he have his gun drawn.   Agent

Morales (“Morales”) testified that he heard the dialogue between

Walter and Bolden and that Bolden asked Walter if he could look in

the back of the vehicle.     Morales stated that Walter gave the

officers permission to do so and produced his keys.         Morales

testified that he and Bolden approached the driver’s side of the

vehicle where Walter was sitting and that neither agent had his gun

drawn.   Morales testified that Walter was placed in handcuffs and

arrested only after the undocumented aliens were discovered. Agent

Collins testified that when he arrived on the scene, he observed

agents Bolden and Morales approach Walter at the driver’s side of

the vehicle and that neither agent had his gun drawn.   In light of

this testimony, the district court’s ruling that Walter gave

voluntary consent is not clearly erroneous.

     Accordingly, the judgment of conviction is AFFIRMED.
