                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                  FEB 3 2005
                                    TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                            No. 04-2112
 ISIDRO PACHECO-ESPINOSA,                               (D.C. No. 03-CR-422-P)
                                                               (D. N.M.)
           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before SEYMOUR, BALDOCK, and BRISCOE, Circuit Judges.**



       A grand jury indicted Defendant Isidro Pacheco-Espinosa for possession of

marijuana with the intent to distribute, and conspiring to do the same, both in violation of

21 U.S.C. § 841(a), (b). The district court denied Defendant’s motion to suppress

evidence a border patrol agent seized from his vehicle. Defendant entered a conditional



       *
          This order and judgment is not binding precedent, except under the doctrines of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.
       **
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
guilty plea, reserving the right to appeal the denial of his motion to suppress. See Fed. R.

Crim. P. 11(a)(2). On appeal, Defendant argues the search of his vehicle violated the

Fourth Amendment because the border patrol agent lacked reasonable suspicion to justify

the investigatory detention.

       We have jurisdiction, 28 U.S.C. § 1291, and review the district court’s factual

findings for clear error. United States v. Taverna, 348 F.3d 873, 877 (10th Cir. 2003).

The ultimate determination of reasonableness under the Fourth Amendment is a question

of law we review de novo. Id. The law governing the reasonableness of a roving border

patrol stop under the Fourth Amendment is well-established. See United States v.

Gandara-Salinas, 327 F.3d 1127, 1129-30 (10th Cir. 2003). After thoroughly reviewing

the record, we accept the district court’s factual findings. Further, we hold the border

patrol agent’s search of Defendant’s vehicle was reasonable for substantially the same

reasons the district court expressed in its well-reasoned order denying Defendant’s motion

to suppress. Accordingly, we attach the district court’s order as an appendix and

AFFIRM.

                                                  Entered for the Court,



                                                  Bobby R. Baldock
                                                  Circuit Judge




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                                        APPENDIX

                   IN THE UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF NEW MEXICO
                            _____________________


UNITED STATES OF AMERICA,

                     Plaintiff,

v.                                                        NO. CR 03-422 JP


ISIDRO PACHECO-ESPINOSA,


                     Defendant.



                      MEMORANDUM OPINION AND ORDER

       On April 9, 2003, Defendant Isidro Pacheco-Espinosa filed a Motion to Suppress

Physical Evidence and Statements (Doc. No. 17). Defendant argues that any statements

and physical evidence, including the confiscated marijuana, cannot be used as evidence in

his criminal trial because they were taken or seized after his illegal detention and arrest.

The Court held a hearing on the motion on July 1, 2003. On July 7, 2003, Defendant filed

a Supplement to Motion to Suppress Evidence (Doc. No. 32). Having considered all the

briefs, the supplement, and the evidence presented during the hearing, the Court

concludes that Defendant’s motion should be denied.
I.     Factual Findings

       On December 7, 2002, at around 2:50 p.m., United States Border Patrol Agent

David Scrivener was on roving patrol in a marked border patrol sedan driving in a

southwesterly direction on New Mexico Highway 171, east of Interstate 25, near Truth or

Consequences, New Mexico. Highway 171 leads from Truth or Consequences to

Elephant Butte, New Mexico. Agent Scrivener had worked as a Border Patrol agent for

2 ½ years and was assigned to the Truth or Consequences area. Agent Scrivener is

familiar with the usual patterns of traffic on Highways 171, 181, 195, and Rock Canyon

Road, which are roadways surrounding the Elephant Butte Lake area. Agent Scrivener is

also familiar with the vehicles operated by local residents that use those roadways.

Between October and April, the highways and roads in this area are primarily used by

local residents, as it is off season for the lake during the winter months. In early

December the traffic on Rock Canyon Road is at a particularly low level. Agent

Scrivener estimated that only three or four vehicles an hour travel on Rock Canyon Road

in early December. Additionally, in Agent Scrivener’s experience, these back highways

and roads are frequently used by alien and drug smugglers attempting to circumvent the

immigration checkpoint located on Interstate 25 north of Truth or Consequences when the

checkpoint is open and operating. Agent Scrivener stated that from about November 7,

2002, to December 7, 2002, there were roughly 10 to 11 illegal alien loads and three to




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five illegal narcotics loads intercepted on the back roadways (Highways 171, 181, 195,

and Rock Canyon Road) in the Elephant Butte area.

       On December 7, 2002, the checkpoint north of Truth or Consequences was

operational. As a result, border patrol agents had information that the highways

surrounding the checkpoint were being used by alien and drug smugglers attempting to

circumvent the checkpoint.

       While Agent Scrivener was driving in a southwesterly direction on Highway 171,

he passed a gray 1992 Ford pickup truck traveling in the opposite direction on Highway

171. The point where Agent Scrivener initially encountered the truck was approximately

120 miles from the Mexican border. As the pickup truck passed Agent Scrivener, Agent

Scrivener noticed that the driver did not acknowledge his presence and had a dead stare

on the road ahead of him. The driver held the steering wheel rigidly with both hands.

The truck peaked Agent Scrivener’s interest because it was the same make, model, and

color of a truck from the Hatch, New Mexico area that had recently been used to smuggle

eight illegal aliens. Agent Scrivener turned around to follow the truck and requested a

registration, stolen vehicle, and 72-hour lane check. The checks revealed that the truck

was registered to Oscar or Aurora Hinojosa from Socorro, New Mexico; the vehicle was

not stolen; and the truck had crossed the border from the Republic of Mexico at the Port

of Entry in Columbus, New Mexico, which is west of Interstate 25, at around 11:30 a.m.




                                            3
(Eastern Standard Time) the morning of December 7, 2002. The gray pickup truck was

not the same truck used for smuggling aliens in Hatch.

       As Agent Scrivener followed the pickup truck, the truck made a left turn and

headed north on Highway 195. Agent Scrivener followed the truck until it made an

abrupt turn into the Elephant Butte General Store and stopped by the gas pumps. Agent

Scrivener drove north on Highway 195 past the Elephant Butte General Store and stopped

at a Diamond Shamrock gas station located at the intersection of Highway 195 and Rock

Canyon Road, about a quarter of a mile beyond the general store. Agent Scrivener began

putting gas in his car.

       While Agent Scrivener finished fueling, he noticed that the truck began driving

north on Highway 195 and then turned onto Rock Canyon Road. Rock Canyon Road

leads to Interstate 25 at exit 89 and then continues past Interstate 25 as New Mexico

Highway 52 towards the town of Cuchillo and the Gila National Wilderness. In order to

try to pass the pickup truck on Rock Canyon Road, Agent Scrivener took Highway 195 to

Interstate 25. Agent Scrivener entered the interstate at exit 83, drove north, exited

Interstate 25 at exit 89, and headed southeast on Rock Canyon Road.

       As Agent Scrivener drove on Rock Canyon Road, he again encountered the gray

Ford pickup truck. Agent Scrivener passed the truck and for a second time noticed that

the driver had a dead stare on his face, would not acknowledge the agent, and had the

same rigid posture. Agent Scrivener then turned around and followed the pickup truck.


                                              4
Agent Scrivener observed that the truck was traveling at a speed of 35 miles per hour, 20

miles per hour below the posted speed limit of 55 miles per hour. The agent also saw that

the truck appeared to be riding low. Agent Scrivener thought it unusual that someone

traveling from Columbus to Socorro would take a route other than Interstate 25 because

Interstate 25 is the shorter and faster route.

       Based on all his observations, Agent Scrivener believed the pickup truck was

attempting to circumvent the checkpoint on Interstate 25, so he decided to stop the truck

to investigate if the truck was transporting illegal aliens. Agent Scrivener stopped the

truck at the junction of Rock Canyon Road and Interstate 25 at exit 89. As Agent

Scrivener approached the truck, he noticed two large burlap sacks in the bed of the truck.

Agent Scrivener observed that the sacks had the outlines of brick-like objects. The sacks

were similar to sacks from other cases in which marijuana had been seized.

       Agent Scrivener approached the driver and asked the driver, identified as

Defendant Isidro Pacheco-Espinosa, his citizenship. Defendant responded that he was a

resident alien. As Defendant took his resident alien card out of his wallet, Agent

Scrivener noticed that Defendant’s hands were shaking. When asked about his

destination, Defendant said he left Albuquerque that morning at 5:00 a.m. and drove three

hours to fish with some friends. When asked who his friends were, Defendant hesitated

and said “Jesus” and “Castro.” When asked the last names of his friends, Defendant

paused and rolled his eyes to seek an answer. When Agent Scrivener asked Defendant if


                                                 5
he owned the truck, Defendant told the agent that the truck belonged to his friend “Jesus

Jimenez,” which was a different name than that given by dispatch as the registered owner.

As Agent Scrivener talked to Defendant, Defendant stuttered when answering questions.

Defendant also denied having crossed into Mexico and stated that the last time he went to

Mexico in the truck was several weeks ago. When asked why Defendant chose this route,

Defendant did not have an answer.

       Agent Scrivener then inquired as to what was in the two burlap sacks. Defendant

replied that he did not know what was in them and that his friend gave them to him to

drop off at an Albuquerque store. Consequently, Agent Scrivener notified the checkpoint

that he needed a drug-detection dog and asked Defendant if he could inspect the exterior

of the truck with the dog. Defendant hesitated but said yes.

       At approximately 3:15 p.m. a drug-detection dog arrived and alerted to the burlap

sacks in the bed of the truck. The agents opened the sacks and found several bundles of

marijuana. The agents transported Defendant to the border patrol station. Upon further

search of Defendant’s truck, agents found another burlap sack and a small box containing

more bundles of marijuana. The total weight of the marijuana discovered in the truck was

approximately 340 pounds. After agents advised Defendant of his Miranda rights,

Defendant waived his rights and made incriminating statements to the agents.




                                            6
II.    Discussion

       The Fourth Amendment applies to seizures of persons, including brief

investigatory stops of vehicles. United States v. Cortez, 449 U.S. 411, 417 (1981). The

Fourth Amendment constrains 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). An officer is

entitled to analyze the facts in light of his experience and training in detecting illegal

entry and smuggling. United States v. Monsisvais, 907 F.2d 987, 990 (10th Cir. 1990).

The Supreme Court has outlined a number of factors to be used in determining whether

there is a reasonable suspicion to stop a vehicle in a border area: (1) the characteristics of

the area in which the vehicle is stopped, (2) proximity to the border, (3) usual patterns of

traffic on the particular road, (4) previous experience with alien traffic on the road,

(5) information about recent illegal border crossings in the area; (6) the driver’s behavior,

such as attempts to evade officers; (7) aspects of the vehicle, such as concealed

compartments; (8) appearance that the vehicle is heavily loaded; and (9) other relevant

information. Brignoni-Ponce, 422 U.S. at 884-85.

       A court must look at the totality of the circumstances to determine whether an

officer had a reasonable suspicion to justify a stop. United States v. Arvizu, 534 U.S.

266, 274 (2002); Cortez, 449 U.S. at 417-18. The Supreme Court expressly rejected any


                                               7
sort of “divide-and-conquer analysis.” Arvizu, 534 U.S. at 274. As noted by the Tenth

Circuit, “To be sure, an officer’s specific articulable facts, when viewed in isolation, will

often comport with general notions of innocent travel rather than criminal activity . . . the

reasonable suspicion calculus turns on whether the specific articulable facts, when viewed

together through the lens of a reasonable law enforcement officer, justified a brief

roadside detention.” United States v. Lopez-Martinez, 25 F.3d 1481, 1484 (10th Cir.

1994).

         Mindful of these principles, the Court will analyze the facts of this case within the

framework of Brignoni-Ponce. First, the characteristics of the area in which Defendant

was stopped support a finding of reasonable suspicion. Agent Scrivener initially passed

Defendant as Defendant was driving in a northerly direction on Highway 171 in the

Elephant Butte, New Mexico area. After Agent Scrivener observed Defendant stop at the

Elephant Butte General Store, Defendant drove north on Highway 195 and then turned

onto Rock Canyon Road. Agent Scrivener stopped Defendant on Rock Canyon Road at

its intersection with Interstate 25. Agent Scrivener testified that Highways 171, 195, and

Rock Canyon Road are frequently used by alien and drug smugglers attempting to

circumvent the immigration checkpoint located on Interstate 25 north of Truth or

Consequences. On the day of the incident in question, this checkpoint was open.

Defendant’s route of travel skirted the Interstate 25 checkpoint, and he was stopped

where Rock Canyon Road intersects with Interstate 25, north of the checkpoint.


                                               8
Moreover, Agent Scrivener estimated that the month before the incident in question there

were roughly 10 to 11 illegal alien loads and three to five illegal narcotics loads

intercepted on the back highways in the Elephant Butte area.

       As to the second factor, proximity to the border, the Government concedes that

Defendant was stopped more than 100 miles from the international border. The location

where Agent Scrivener initially encountered Defendant was 120 miles from the Mexican

border, and Defendant was stopped a few miles north of that point. Congress has

authorized border patrol agents to search vehicles “within a reasonable distance from any

external boundary of the United States.” 8 U.S.C. § 1357(a)(3). Current regulations

interpret “reasonable distance” as 100 air miles from the border. 8 C.F.R. § 287.1(a)(2).

The Tenth Circuit has nevertheless held that the regulation does not foreclose searches

beyond that limit. See United States v. Leyba, 627 F.2d 1059 (10th Cir. 1990) (finding

reasonable suspicion justifying stop of vehicle despite fact that stop occurred 124 road

miles from border). Although in United States v. Venzor-Castillo, 991 F.2d 634 (10th

Cir. 1993), the Tenth Circuit concluded that a stop that occurred more than 200 air miles

from the border was not within a reasonable distance of the border and thus was not

supported by reasonable suspicion, this case is distinguishable for a number of reasons.

       First, this Court determines that the approximately 120-mile distance in which

Defendant was stopped was a reasonable distance from the border. See Leyba, 627 F.2d

1059 (10th Cir. 1980) (finding reasonable suspicion for stop 124 road miles from border);


                                              9
United States v. Garcia, 732 F.2d 1221, 1225 (5th Cir. 1984) (upholding stop 115 miles

from border). A stop just over a hundred road miles from the border stands in marked

contrast to the stop in Venzor-Castillo where “the point of the stop was hundreds of miles

beyond the border on a road bisecting a multitude of entry points, including an adjoining

state.” 991 F.2d at 639. Second, the United States Border Patrol maintains a permanent

checkpoint on Interstate 25 north of Truth or Consequences, New Mexico. Defendant

was stopped near the checkpoint in an area that alien and drug smugglers routinely use to

circumvent the checkpoint. Lastly, and perhaps most importantly, Agent Scrivener

conducted a 72-hour lane check that revealed that Defendant’s truck had crossed the

Mexican border at the Port of Entry in Columbus earlier that morning. One of the vital

elements of Brignoni-Ponce is whether the agent had reason to believe the vehicle had

recently crossed the border. Garcia, 732 F.2d 1221, 1225 (5th Cir. 1984); United States v.

Melendez-Gonzalez, 727 F.2d 407, 411 (5th Cir. 1984). As the Tenth Circuit noted,

“Naturally, if the officer has an articulable basis for believing that [a traveler’s point of

origin] was across an international border, distance will have far less significance in

judging the reasonableness of the officer’s decision.” Venzor-Castillo, 991 F.2d at 639.

Because Agent Scrivener had particularized knowledge that Defendant had crossed the

border earlier in the day, the distance from the border is not a critical factor in the

Brignoni-Ponce reasonable suspicion analysis. Therefore, the evidence in this case

supports the Court’s finding that Defendant was stopped within a reasonable distance


                                              10
from the border and that the 120-mile distance from the border does not preclude a

reasonable suspicion determination.

       The third Brignoni-Ponce factor, patterns of traffic on Rock Canyon Road, points

in favor of reasonable suspicion. Agent Scrivener testified that the winter months

between October and April are off season for the lake, so that the back highways

surrounding the lake are primarily used by local residents. In early December, traffic on

Rock Canyon Road is particularly light with only an estimated three or four vehicles an

hour traveling on Rock Canyon Road, and those vehicles are usually local residents.

Thus, it would have been unusual for the agent to encounter a vehicle registered in

Socorro on Rock Canyon Road in the middle of winter.

       As to the agent’s previous experience with alien traffic on the road, Agent

Scrivener had been with the border patrol for 2 ½ years and had been assigned to the

Truth or Consequences area throughout that time. Agent Scrivener testified that he had

become familiar with the usual patterns of traffic on the highways surrounding the

Elephant Butte Lake area and with the vehicles operated by local residents. Agent

Scrivener also testified that in the winter months border patrol agents frequently

encounter alien and drug smugglers on the back highways of the Elephant Butte Lake

area as they attempt to circumvent the Interstate 25 border patrol checkpoint. Agent

Scrivener’s experience provides some support for a reasonable suspicion determination.

See United States v. Barron-Cabrera, 119 F.3d 1454, 1461 (10th Cir. 1997) (determining


                                             11
that officer’s 3 ½ years of experience as border patrol agent in area where defendant was

stopped was sufficient to satisfy fourth prong of Brignoni-Ponce test).

       In regard to the fifth factor, there is no evidence in the record that Agent Scrivener

had specific information about recent illegal border crossings in the area. However,

because the border patrol checkpoint was open that day, agents had information that the

highways surrounding the checkpoint were being used by alien and drug smugglers trying

to avoid the checkpoint, a fact which is relevant to the reasonable suspicion analysis.

       The sixth factor – the driver’s behavior – also weighs in favor of a finding of

reasonable suspicion. When Agent Scrivener, who was driving a marked border patrol

sedan, first passed Defendant, Agent Scrivener noticed that Defendant did not

acknowledge his presence, held the steering wheel rigidly with both hands, and had a

dead stare on the road ahead of him. This behavior suggests Defendant was tense and

uneasy. See Arvizu, 534 U.S. at 275-76 (noting that driver’s slowing down, stiffening of

posture, and failure to acknowledge sighted law enforcement officer may be unusual on

remote road). Furthermore, shortly after Agent Scrivener turned around and began

following Defendant, Defendant made an abrupt turn into the Elephant Butte General

Store and stopped by the gas pumps. Although stopping to get gas is not inherently

suspicious, in this case the abrupt turn into the gas station shortly after being followed by

a marked border patrol vehicle indicates nervousness and an attempt to avoid being

followed by a law enforcement officer. When the agent passed Defendant again on Rock


                                             12
Canyon Road, Agent Scrivener observed for a second time that Defendant had the same

dead stare on the road, would not acknowledge the agent, and gripped the steering wheel

tightly. Agent Scrivener turned around to follow Defendant and noticed that Defendant

was traveling at 35 miles per hour, 20 miles per hour below the posted speed limit. As

the Tenth Circuit has acknowledged, maintaining a noticeably slow speed in the presence

of law enforcement may indicate nervousness. United States v. Lopez-Martinez, 25 F.3d

at 1486.

       It is also suspicious that Defendant opted not to drive straight to Socorro on

Interstate 25, the shorter, faster route from the Columbus Port of Entry. Instead,

Defendant chose to drive on New Mexico Highways 171 and 195 and on Rock Canyon

Road, all of which are known to be used as routes to circumvent the Truth or

Consequences checkpoint. See United States v. Barbee, 968 F.2d 1026, 1029 (10th Cir.

1992) (noting that agent’s discovery of driver along road commonly used to avoid Truth

or Consequences checkpoint weighs in favor of reasonable suspicion). Defendant’s

chosen route becomes even more suspicious when one considers that the Columbus Port

of Entry is far west of Interstate 25 and Defendant was stopped on the east side of the

interstate, indicating that at some point Defendant crossed Interstate 25 instead of turning

north onto the interstate, which would have been the shortest route to Socorro.

Defendant’s circuitous path that took him north of the open checkpoint strongly supports

a finding of reasonable suspicion justifying the stop.


                                             13
       The seventh factor, unusual aspects of the vehicle, is absent in this case. Agent

Scrivener’s description of the vehicle indicated nothing more than a plain gray pickup

truck. However, the eighth factor, appearance of the vehicle as heavily loaded, points to

reasonable suspicion. Agent Scrivener testified that when he turned around and followed

Defendant’s truck on Rock Canyon Road, he observed that Defendant’s truck appeared to

be riding low, even though the agent could see only one occupant in the truck.

       Finally, of substantial probative value is the fact that Agent Scrivener knew that

Defendant’s vehicle had passed through the Columbus Port of Entry into the United

States from Mexico earlier in the day. The Tenth Circuit has acknowledged, “A

fundamental factor supporting an investigatory border patrol stop based on reasonable

suspicion is the likelihood that the subject vehicle has crossed the border.” U.S. v. Doyle,

129 F.3d 1372, 1375 (10th Cir. 1997). The fact that Defendant had crossed the border

earlier in the day is especially significant when combined with the facts that Defendant’s

truck was registered in Socorro and it was winter, because it demonstrates that Defendant

was not likely a tourist visiting Elephant Butte Lake.

       This Court recognizes that this is a close case and that each individual fact, when

viewed in isolation, may be consistent with innocent, legitimate travel. Nevertheless, the

Supreme Court has expressly rejected any sort of “divide-and-conquer” analysis and

instead required lower courts to look at the “totality of the circumstances.” Arvizu, 534

U.S. at 273-74. Based on all the above facts, when viewed through the lens of a


                                             14
reasonable law enforcement officer, the Court concludes that Agent Scrivener had

sufficient reasonable articulable suspicion justifying his stop of Defendant’s vehicle. The

information obtained by Agent Scrivener soon after the stop supported Defendant’s

subsequent arrest. Accordingly, Defendant’s motion to suppress should be denied.



       IT IS THEREFORE ORDERED that Defendant’s Motion to Suppress Physical

Evidence and Statements (Doc. No. 17) is DENIED.




                                          CHIEF UNITED STATES
                                          DISTRICT JUDGE




                                            15
