                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 7, 2004
                       _____________________
                                                         Charles R. Fulbruge III
                            No. 03-40495                         Clerk
                          Summary Calendar
                       _____________________

                     United States of America,

                       Plaintiff - Appellee,

                              versus

                           Ivan Delgado,

                      Defendant - Appellant.


_________________________________________________________________

           Appeal from the United States District Court
            for the Southern District of Texas, Laredo
                   District Court No. L-02-1569
_________________________________________________________________

Before DAVIS, BENAVIDES, and PRADO, Circuit Judges.

PER CURIAM:*

     Appellant Ivan Delgado was convicted on March 31, 2002, of

possessing with intent to distribute more than 100 kilograms of

marijuana, in violation of 21 U.S.C. § 841 (a)(1), (b)(1)(B).

Delgado appeals his conviction, arguing that the district court

erred by denying his motion to suppress evidence.   For the

reasons set forth below, we AFFIRM Mr. Delgado’s conviction.

     Factual Background


     *
      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this opinion should not be published and is not precedent except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.

                                -1-
     At approximately 4:39 a.m. on October 31, 2002, agents at

the United States Border Patrol Stations in Hebbronville and

Freer, Texas were alerted that vehicular sensors had been

activated on a lightly traveled ranch road between the two

stations.2    The sensors indicated that the vehicle was traveling

east toward the “T” junction of the ranch road and Farm to Market

Road 2050 (FM 2050).    Border Patrol Agent Ruben Reyes from the

Hebbronville station responded to the alert by driving north on

FM 2050 and stopping south of where a vehicle traveling on the

ranch road would exit, while Border Patrol Agent Julio Reyes from

the Freer station responded by driving south on FM 2050 and

stopping north of where a vehicle traveling on the ranch road

would exit.

     After stopping his car, Agent Julio Reyes noticed a white

pickup truck traveling north on FM 2050.    When Agent Julio Reyes

turned to follow the vehicle, the driver pulled over and asked

for directions.    Agent Julio Reyes questioned the driver and

searched the vehicle, but found nothing.    Agent Julio Reyes

notified Agent Ruben Reyes about the white pickup, told him he

had inspected it and had found no violations.

     At approximately 5:15 a.m., Agent Ruben Reyes saw a brown

pickup truck traveling south on FM 2050 and contacted Agent Julio


     2
      FM 2050 connects U.S. Highway 59 with State Highway 359.
U.S. Highway 59 connects Laredo, Texas, with Freer, Texas. State
Highway 359 connects Laredo, Texas with Hebbronville, Texas.

                                 -2-
Reyes to ask if he had seen it as well.    Agent Julio Reyes said

he had not seen any vehicle pass him except the brown pickup.

Because the brown pickup had not passed Agent Julio Reyes, and

there was no other road accessible to FM 2050, Agent Ruben Reyes

concluded that it must have exited from the ranch road.

     Agent Ruben Reyes also testified that there was no visible

load in the brown pickup, but that the bed of the truck appeared

to be riding lower than would be expected of an unloaded truck of

that type.    Agent Ruben Reyes testified that, because he did not

recognize the brown pickup he checked the vehicle’s registration

and learned that it was not registered locally, but in Skidmore,

Texas.    Agent Ruben Reyes then stopped the driver, Mr. Delgado,

and questioned him.    While speaking with Mr. Delgado, Agent Ruben

Reyes noticed an odor of marijuana in the pickup.    He then

searched the vehicle and found 1,194 pounds of marijuana and

$4,980.

     Both Agent Ruben Reyes and Agent Julio Reyes had worked for

the Border Patrol agency for two years.

     Discussion

     Delgado argues the district court erred by denying his

motion to suppress evidence seized in violation of the Fourth

Amendment.    He contends that Agent Ruben Reyes did not have

reasonable suspicion of criminal activity sufficient to warrant

the investigatory stop of his vehicle.


                                 -3-
      In reviewing the denial of a motion to suppress, this court

examines a district court’s factual findings for clear error, and

its legal conclusions, including whether there was reasonable

suspicion for a stop, de novo.     United States v. Jacquinot, 258

F.3d 423, 427 (5th Cir. 2001).    A factual finding is not clearly

erroneous if it is plausible in light of the record as a whole.

Id.   The evidence presented at a suppression hearing must be

viewed in the light most favorable to the prevailing party, which

in this case is the government.     See id.

      A Border Patrol agent on a roving patrol may conduct a

temporary investigatory stop of a vehicle if that agent is aware

of specific articulable facts, together with rational inferences

from those facts, that reasonably warrant suspicion that the

vehicle’s occupant is engaged in criminal activity.     United

States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975).    This court

examines the totality of circumstances surrounding the stop in

evaluating whether reasonable suspicion exists.     United States v.

Galvan-Torres, 350 F.3d 456, 457 (5th Cir. 2003).

      Relevant factors that may be used in assessing reasonable

suspicion include: 1) the known characteristics of a particular

area; 2) the proximity to the border; 3) usual patterns of

traffic on the road; 4) previous experience with alien traffic;

5) information about recent illegal trafficking in aliens or

drugs in the area; 6) the behavior of the driver; 7) the

                                  -4-
appearance of the vehicle; and 8) the number, appearance, and

behavior of the passengers.   Unites States v. Jacquinot, 258 F.3d

423, 427-28 (5th Cir. 2001) (citing Brignoni-Ponce, 422 U.S. at

884).   When evaluating the characteristics of an area to

determine reasonable suspicion, this court may consider whether a

road is known for smuggling activity.      Jacquinot, 258 F.3d at

428-29.   A belief that two vehicles are traveling in tandem in a

lead car and load car arrangement may also contribute to a

finding of reasonable suspicion.      See United States v. Inocencio,

40 F.3d 716, 720,723 (5th Cir. 1994)(two vehicles traveling

closely together in a private ranch area with the first making

frequent U-turns contributed to reasonable suspicion).       An

agent’s inability to recognize a vehicle on a road that is

generally only used by local residents may also indicate

reasonable suspicion, as can the fact that the vehicle is

traveling at an unusual time of day.      United States v.

Villalobos, 161 F.3d 285, 289 (5th Cir. 1998).     A vehicle which

appears to be heavily loaded may also contribute to a finding of

reasonable suspicion.   United States v. Orozco, 191 F.3d 578, 582

(5th Cir. 1999).

     The district court concluded that the Border Patrol had

reasonable suspicion to stop Mr. Delgado’s vehicle.     The order

noted that the sensor triggered by the car was “put there

precisely because [the ranch] road is known as a detour around

                                -5-
the checkpoints.”    The district court also noted that the agents

had strong reason to believe Mr. Delgado’s vehicle had triggered

the sensors, the agents had experience with criminal activity,

they knew his vehicle was not a local vehicle, and it was unusual

for a vehicle to be traveling that early in the morning on that

isolated road.

     The transcript of the suppression hearing reveals no clear

error by the district court in its findings of fact.   Similarly,

this court finds no error in the district court’s legal

conclusion that Agent Ruben Reyes had reasonable suspicion to

warrant a stop of Mr. Delgado’s vehicle.

     Mr. Delgado asserts that the totality of the circumstances

surrounding the stop was insufficient to warrant reasonable

suspicion.   Although there was nothing in Mr. Delgado’s behavior

that would have created suspicion, and the record did not

establish Mr. Delgado’s proximity to the border when he was

stopped, the balance of the Brignoni-Ponce factors weighs in

favor of a finding that there was reasonable suspicion to warrant

a stop.

     First, the known characteristics of the area in which Mr.

Delgado was stopped contributed to a reasonable suspicion of

criminal activity.   Agent Ruben Reyes’s knowledge of local roads,

the location of the sensors, and Mr. Delgado’s location gave

Agent Ruben Reyes strong reason to believe Mr. Delgado had taken


                                 -6-
the ranch road. Both agents testified that the Border Patrol had

installed sensors on the ranch road because it was often used for

smuggling illegal aliens and narcotics.   The agents further

testified that the ranch road was popular with smugglers because

it allowed drivers to travel to northern Texas while avoiding

Border Patrol checkpoints on Highway 59 and Highway 359.   From

this information Agent Ruben Reyes could have suspected criminal

activity.

     Second, the arresting officer, Agent Ruben Reyes, had

experience with criminal activity, having worked for the Border

Patrol for two years.   Third, Agent Ruben Reyes could have

suspected illegal activity when he heard Agent Julio Reyes report

that he had just seen another pickup truck traveling in the same

isolated area at that unusually early time.   Agent Ruben Reyes’s

familiarity with criminal activity in the border area could have

reasonably led him to infer that the white pickup truck was

acting as a scout vehicle by driving ahead of the brown pickup

truck to look for police officers.

     Fourth, the ranch road was rarely used by any non-ranch

vehicles and Mr. Delgado’s truck was registered in Skidmore,

Texas.   Agent Ruben Reyes testified that he knew the vehicles

connected with the local ranches by sight.    Therefore, he could

have found it suspicious that a vehicle from another part of

Texas, with no connection to the local ranches, was using that


                                -7-
particular road.

     Fifth, Mr. Delgado’s truck appeared to be riding lower than

would be expected of a truck without a visible load, suggesting a

heavy hidden load.    Agent Ruben Reyes testified that the

appearance of the vehicle, in light of his past law enforcement

experience with heavily loaded vehicles, led him to suspect that

the vehicle might be transporting illegal aliens.    Agent Ruben

Reyes knew that Mr. Delgado’s vehicle had most likely taken the

isolated ranch road, that the ranch road was often used for

smuggling illegal aliens, that the vehicle was not registered

locally, that the vehicle appeared to be carrying a hidden load,

and that it had been preceded by a possible scout vehicle.

Considering Agent Ruben Reyes’s background working for the Border

Patrol, and the early hour of the stop, he could have reasonably

suspected criminal activity.

     This case is somewhat similar to, but distinguishable from,

United States v. Melendez-Gonzalez,3 in which this Court found no

reasonable suspicion to warrant a stop.    In Melendez-Gonzalez,

Border Patrol agents in Marfa, Texas, were alerted that traffic

had passed over a sensor located about 25 miles to the south at

4:57 a.m.    Approximately 25 minutes later the agents saw two

pickup trucks, driving within 50 yards of each other, enter

Marfa.    The first truck stopped in a parking lot while the second


     3
         727 F.2d 407 (5th Cir. 1987).

                                 -8-
continued on.     The agents stopped the second vehicle, which they

testified appeared to be riding low.     In Melendez-Gonzales this

court concluded that it could not consider the evidence that the

vehicle appeared to be riding low.      However, more recently this

court has explained that this factor may indeed be considered.

See United States v. Lopez-Gonzalez, 916 F.2d 1011, 1015 (5th

Cir. 1990)(noting error in this court’s cases giving little

weight or no weight to the fact that a vehicle was riding low or

appeared to be heavily loaded); see also United States v.

Guerrero-Barajas, 240 F.3d 428, 433 (5th Cir. 2001).

Furthermore, there was no indication in Melendez-Gonzales, as

there was in the present case, that the road was especially

isolated or that it was generally only used to access private

land.   Finally, in Melendez-Gonzales, the Border Patrol agents

did not know that the defendant’s vehicle was not a local

vehicle, as the agents did in the present case.

     Conclusion

     This court finds that Agent Ruben Reyes had reasonable

suspicion of criminal activity to warrant a stop of Mr. Delgado’s

vehicle.    The district court properly denied Mr. Delgado’s motion

to suppress, and we AFFIRM Mr. Delgado’s conviction.

AFFIRMED.




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