     Case: 16-51307      Document: 00514198502         Page: 1    Date Filed: 10/17/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit


                                      No. 16-51307                              FILED
                                                                         October 17, 2017
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

              Plaintiff–Appellee,

v.

RODOLFO GUTIERREZ-PARRA,

              Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:16-CR-271


Before CLEMENT, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
       Rodolfo Gutierrez-Parra (“Gutierrez”) appeals the district court’s denial
of his motion to suppress evidence obtained as a result of a vehicle stop.
Finding no error by the district court, we AFFIRM.
                                  I. BACKGROUND
       In the early morning hours of January 24, 2016, El Paso Police
Department (“EPPD”) Officers Patrick Boyle and Raul Valdez were patrolling
a high-crime area in northeast El Paso, Texas. At approximately 2:00 a.m., the



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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officers observed a FedEx semi-trailer truck pull into a vacant car wash and
body shop parking lot followed by a white minivan. Officer Boyle—a two-and-
a-half-year EPPD veteran and a former FedEx employee—became suspicious
of the truck and minivan because all nearby businesses were closed, and he
had never seen a FedEx truck in that area at that hour.
      The officers turned off their patrol car lights and pulled into the parking
lot alongside the minivan. As the minivan’s driver exited his vehicle, the
officers turned on their spotlight and Officer Boyle observed someone peek out
of the minivan’s sliding door and then quickly shut it upon seeing the officers.
At the same time, the FedEx truck drove out of the parking lot at a normal
speed and left the scene. Officer Boyle spoke to the driver of the minivan who
identified himself as Saul Davila. After being asked what he was doing, Davila
responded that he arranged to pick up a car from the body shop at that time.
The officers ran a warrant check on Davila, and, after it came back clear, told
Davila to leave and come back in the daytime. Davila returned to his minivan
and drove away.
      The officers followed the minivan for a short distance and observed it
enter another parking lot containing closed businesses. At the same time, the
officers saw the FedEx truck pull into a parking lot across the street from the
minivan. Officer Boyle observed Davila exit the minivan and walk towards the
FedEx truck, but the FedEx truck performed a U-turn and again left the area.
The officers followed the FedEx truck, but when they could no longer see the
minivan, decided to return to the minivan.
      As the officers neared the minivan, Davila approached their patrol car
on foot and asked if anything was wrong. The officers responded “[n]o,” but told
him that his story was suspicious as all the nearby businesses were closed.
Davila stated that he was looking for another auto shop and invited the officers
to follow him, but they declined. At that point, Officer Boyle shined his
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                                  No. 16-51307
spotlight onto the minivan and observed condensation building on the back
window. Officer Boyle exited the patrol car, approached the minivan, and saw
seven people through the window. Through the slightly opened driver’s side
door, Officer Boyle asked the passengers for identification and what they were
doing. After no one responded, Officer Boyle asked again in Spanish, but still
he received no answers. Officer Boyle alerted his partner that he suspected
that the passengers were undocumented aliens. At that point, someone opened
the minivan’s two sliding doors. Officer Boyle drew his weapon in response and
ordered the passengers to remain in the vehicle. Despite his order, two male
passengers ran away. The officers advised dispatch that two suspected
undocumented aliens had fled by foot, requested assistance to search for them,
and warned to “be on the lookout” for the FedEx truck. The officers also notified
the United States Border Patrol through dispatch. As the officers interviewed
the remaining passengers, Officer Boyle overheard one of them say that they
had been staying at a nearby house and were being transported to Forth Worth
to work in construction.
      Upon receiving the report about the FedEx truck, two other EPPD
officers located the truck about three-and-a-half miles from where Davila and
the minivan passengers were detained and pulled it over (at 2:35 a.m.). The
officers drew their weapons, approached the FedEx truck, and asked the
driver, Gutierrez, to step out of the vehicle. Gutierrez complied and the officers
discovered a passenger in the back of the truck’s cabin. Minutes later, Border
Patrol agents arrived on the scene. Gutierrez consented to a search of his cell
phone, which revealed a missed call from an El Paso phone number later
determined to be Davila’s. Gutierrez later gave a statement to Border Patrol
agents that he had agreed to meet an unknown person in El Paso to help
smuggle aliens.


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       On February 24, 2016, a federal grand jury charged Gutierrez with one
count of conspiracy to transport aliens, 1 and one count of transporting aliens. 2
Gutierrez moved to suppress the evidence obtained as a result of the officers’
stop of the FedEx truck, arguing that the officers violated his Fourth
Amendment rights by stopping him without reasonable suspicion and
prolonging the stop longer than necessary. After conducting an evidentiary
hearing, the district court denied the motion to suppress in a written order
reasoning that the officers had reasonable suspicion to conduct an
investigative stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968), and that the
length of the detention was reasonable under the circumstances. Gutierrez
proceeded to a bench trial on stipulated facts and the district court found him
guilty of both counts of the indictment. The court sentenced Gutierrez to time
served and two years of supervised release. Gutierrez timely appealed
challenging the district court’s denial of his motion to suppress. 3
                            II. STANDARD OF REVIEW
       In reviewing the denial of a motion to suppress, this Court “review[s] the
district court’s factual findings for clear error and the district court’s ultimate
conclusion as to the constitutionality of the law enforcement action de novo.”
United States v. Stevens, 487 F.3d 232, 238 (5th Cir. 2007) (citing United States
v. Chavez–Villarreal, 3 F.3d 124, 126 (5th Cir. 1993)). This Court views the
evidence in the light most favorable to the prevailing party and may affirm on
any basis established by the record. United States v. Aguirre, 664 F.3d 606, 610
(5th Cir. 2011). Finally, this Court “should uphold the district court’s ruling to
deny the suppression motion if there is any reasonable view of the evidence to


       1   Specifically, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(v)(I), (a)(1)(A)(ii), and
(a)(1)(B)(i).
        2 Specifically, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (a)(1)(B)(ii).
        3 The written stipulation on which Gutierrez proceeded to trial explicitly reserved his

right to appeal his conviction and the denial of his motion to suppress.
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                                       No. 16-51307
support it.” United States v. Michelletti, 13 F.3d 838, 841 (5th Cir. 1994)
(citation and internal quotation marks omitted).
                                   III. DISCUSSION
       In his sole issue on appeal, Gutierrez argues that the district court erred
in denying his motion to suppress because the officers did not have reasonable
suspicion to stop him. While Gutierrez concedes that prior to stopping him, the
officers “had developed a reasonable suspicion that the minivan driver was
engaged in alien smuggling,” he asserts that this reasonable suspicion did not
justify stopping Gutierrez in the FedEx truck because “there were no
connecting factors to support a reasonable inference that the FedEx truck was
associated with the minivan.”
       “The stopping of a vehicle and detention of its occupants constitutes a
‘seizure’ under the Fourth Amendment.” United States v. Brigham, 382 F.3d
500, 506 (5th Cir. 2004) (en banc); see Delaware v. Prouse, 440 U.S. 648, 653
(1979). Searches and seizures of motorists who are suspected of criminal
activity are analyzed under the Terry framework. United States v. Shabazz,
993 F.2d 431, 434 (5th Cir. 1993) (citing United States v. Sharpe, 470 U.S. 675
(1985); United States v. Brignoni–Ponce, 422 U.S. 873 (1975)). 4
       Under the rule articulated in Terry, a law enforcement officer “may,
consistent with the Fourth Amendment, conduct a brief investigatory stop
when the officer has a reasonable, articulable suspicion that criminal activity



       4   The Government contends that Brignoni–Ponce, which provides reasonable-
suspicion factors specific to the roving border patrol context, should apply to the reasonable-
suspicion determination here. See Brignoni–Ponce, 422 U.S. at 884–87. However, we have
held that the general “Terry analysis applies to investigative stops made by local police
officers, while Brignoni–Ponce applies to stops by roving border patrol agents.” United States
v. Hernandez–Moya, 353 F. App’x 930, 934 (5th Cir. 2009) (unpublished); see also United
States v. Brown, 209 F. App’x 450, 454 (5th Cir. 2006) (unpublished) (“The test set forth in
Brignoni–Ponce does not apply in non-border patrol cases.”). Because Gutierrez was stopped
by local El Paso police officers on routine patrol, we apply the Terry framework.
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is afoot.” United States v. Jordan, 232 F.3d 447, 448 (5th Cir. 2000) (citing
Terry, 392 U.S. at 30). To determine whether a Terry stop is supported by
reasonable suspicion, “we ask whether the officer’s action was: (1) ‘justified at
its inception’; and (2) ‘reasonably related in scope to the circumstances which
justified the interference in the first place.’” United States v. Lopez–Moreno,
420 F.3d 420, 430 (5th Cir. 2005) (quoting Terry, 392 U.S. at 19–20). Gutierrez
only challenges the first prong of the Terry framework by asserting that the
officers’ stop was not justified at its inception because they lacked reasonable
suspicion that he was involved in alien smuggling.
      For a Terry stop to be justified at its inception, “an officer must have an
objectively reasonable suspicion that some sort of illegal activity . . . occurred,
or is about to occur.” Lopez–Moreno, 420 F.3d at 430 (citation omitted); see also
United States v. Jaquez, 421 F.3d 338, 340 (5th Cir. 2005). The Supreme Court
has instructed reviewing courts to “look at the ‘totality of the circumstances’ of
each case to see whether the detaining officer has a ‘particularized and
objective basis’ for suspecting legal wrongdoing.” United States v. Arvizu, 534
U.S. 266, 273 (2002) (citing United States v. Cortez, 449 U.S. 411, 417–18
(1981)). While “an officer’s reliance on a mere ‘hunch’ is insufficient to justify
a stop, the likelihood of criminal activity need not rise to the level required for
probable cause, and it falls considerably short of satisfying a preponderance of
the evidence standard.” Id. at 274 (citing Terry, 392 U.S. at 27; United States
v. Sokolow, 490 U.S. 1, 7 (1989)). “Any analysis of reasonable suspicion is
necessarily fact-specific, and factors which by themselves may appear
innocent, may in the aggregate rise to the level of reasonable suspicion.” United
States v. Ibarra–Sanchez, 199 F.3d 753, 759 (5th Cir. 1999) (footnote and
citations omitted).
      Viewing the totality of the facts in the light most favorable to the
Government as the prevailing party below, we find that the officers had a
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reasonable, articulable suspicion that Gutierrez was engaged in criminal
activity. First, Officer Boyle testified that the officers encountered the FedEx
truck and minivan in a high-crime area at 2:00 a.m. in a vacant commercial
parking lot. While this alone does not give rise to a reasonable suspicion, a
person’s presence in a high-crime area late at night is a relevant factor in a
reasonable-suspicion determination. Hill, 752 F.3d at 1035–36; see also Illinois
v. Wardlow, 528 U.S. 119, 124 (2000).
      Second, Officer Boyle testified that the truck seemed “out of place”
because in his two years patrolling the area, he had never seen a FedEx truck
in that area at that time, it appeared that the truck and minivan were
following each other, and all nearby businesses were closed. Officer Boyle’s
insight, based on his experience patrolling the area, that the situation
appeared unusual is another relevant factor supporting reasonable suspicion.
See Arvizu, 534 U.S. at 273 (noting that officers may “draw on their own
experience and specialized training to make inferences from and deductions
about the cumulative information available to them that ‘might well elude an
untrained person’” (quoting Cortez, 449 U.S. at 418)); Terry, 392 U.S. at 27
(“[D]ue weight must be given . . . to the specific reasonable inferences which
[the officer] is entitled to draw from the facts in light of his experience.”).
      Third, and perhaps most importantly, the officers had an objectively
reasonable belief that the FedEx truck was associated with the minivan.
Officer Boyle testified that he observed the minivan pulling into a vacant
parking lot behind the FedEx truck as if “the drivers were following each
other.” While mere simultaneous travel is insufficient to support reasonable
suspicion, the officers encountered several other “connecting factors” between
the minivan and FedEx truck. See United States v. Rangel–Portillo, 586 F.3d
376, 382 (5th Cir. 2009) (“Reasonable suspicion cannot result from the simple
fact that two cars are traveling on a roadway or exiting a parking lot, one in
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front of the other, unless there are other ‘connecting factors’ to establish that
their simultaneous travel could rationally be considered suspicious.” (quoting
United States v. Melendez–Gonzales, 727 F.2d 407, 412 (5th Cir. 1984))). After
the FedEx truck left the first vacant parking lot, the officers encountered the
FedEx truck again—this time across the street from the minivan in a second
parking lot. At this second location, the officers observed Davila walk towards
the FedEx truck, before the truck again left the area. The officers then found
several suspected undocumented aliens in Davila’s minivan, two of whom
fled—presenting evidence that Davila was smuggling aliens. See Wardlow, 528
U.S. at 124 (“Headlong flight—wherever it occurs—is the consummate act of
evasion: It is not necessarily indicative of wrongdoing, but it is certainly
suggestive of such.”). As the district court aptly noted, at this point, the FedEx
truck’s association with the minivan “acquired new meaning”: the officers had
now observed the FedEx truck in two separate locations late at night in
parking lots containing closed businesses driving with or near the minivan
they strongly suspected of being used to smuggle aliens. Drawing reasonable
inferences from the facts before them, the officers reported the FedEx truck to
dispatch and minutes later the truck was pulled over.
      Given the totality of these factors and viewing the evidence in the light
most favorable to the Government, the district court properly denied
Gutierrez’s motion to suppress because the officers had a reasonable,
articulable suspicion that criminal activity was afoot when they stopped
Gutierrez in the FedEx truck. While no one single fact or circumstance here
standing alone provides reasonable suspicion, the Supreme Court noted that
“[i]n Terry . . . reasonable suspicion was supported by a concatenation of acts,
each innocent when viewed in isolation, that when considered collectively
amounted to extremely suspicious behavior.” Wardlow, 528 U.S. at 130 n.4
(citing Terry, 392 U.S. at 5–7, 22–23). Here, the combination of factors—the
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location, time, “out of place” vehicles, and connections between the FedEx truck
and the minivan suspected of transporting undocumented aliens—amount to
articulable, reasonable suspicion that Gutierrez was or was about to be
engaged in criminal activity.
                                IV. CONCLUSION
      For the forgoing reasons, we AFFIRM the district court’s denial of
Gutierrez’s motion to suppress.




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