    Case: 15-40887   Document: 00513718745       Page: 1   Date Filed: 10/14/2016




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

                                  No. 15-40887
                                                                            Fifth Circuit

                                                                          FILED
                                                                   October 14, 2016
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

            Plaintiff–Appellee,

versus

JUAN JOSE RAMIREZ,

            Defendant–Appellant.




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




Before KING, SMITH, and COSTA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

     Juan Ramirez entered a conditional guilty plea to one count of transport-
ing an illegal alien. He appeals the conviction based on his challenge to the
denial of his motion to suppress evidence obtained during a traffic stop, con-
tending that the Border Patrol agent who stopped his truck did so without rea-
sonable suspicion. Finding no error, we affirm.
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                                 No. 15-40887
                                       I.
      About 9:30 p.m. on a Wednesday, Border Patrol Agent Ricardo Espinel
was sitting in his patrol car in the median of U.S. Highway 77 approximately
forty-five miles north of the Mexican border, several miles south of the Sarita
immigration checkpoint, facing the northbound lanes, which were illuminated
by his headlights. It was nothing out of the ordinary for Espinel: He had been
an agent for six years and had been patrolling this stretch of Highway 77 near
Raymondville, Texas, for more than nine months. The highway, which con-
nects the border area to Corpus Christi and Houston, is a known alien smug-
gling route. Espinel had made over 150 alien arrests on this stretch, and he
knew that Tuesday, Wednesday, and Thursday nights saw the most smuggling
activity, with human smugglers dropping off aliens south of the Sarita check-
point, typically using SUVs or pickups because they can hold a large number
of persons.

      Espinel saw Ramirez drive by in a Ford F-150 pickup, a vehicle popular
among smugglers. Espinel noticed that Ramirez “kind of like ducked down,
kind of hiding behind his hand” as he passed. Espinel saw three or four pas-
sengers in the back of the truck, who also “kind of like ducked down or kind of
like laid down” when they saw him. Espinel pursued Ramirez. As he ap-
proached from behind, he “saw heads in the back like popping up and down”
and observed Ramirez “swerve to the right and then kind of correct.” Espinel
turned on his emergency lights and pulled Ramirez over. As he was stopping,
Espinel saw two passengers get out of the truck and run away; he secured
Ramirez and the four remaining passengers—at least two of whom turned out
to be illegal aliens.




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                                        No. 15-40887
                                              II.
      When evaluating the denial of a motion to suppress, we review questions
of law de novo. United States v. Cervantes, 797 F.3d 326, 328 (5th Cir. 2015).
“Whether an officer had reasonable suspicion to support a stop is treated as a
question of law.” United States v. Castillo, 804 F.3d 361, 364 (5th Cir. 2015),
cert. denied, 136 S. Ct. 1481 (2016). “The evidence and inferences therefrom
are reviewed in the light most favorable to the Government as the prevailing
party.” United States v. McKinnon, 681 F.3d 203, 206 (5th Cir. 2012).

      A roving Border Patrol agent may stop a vehicle, but only if he or she is
“aware of specific, articulable facts, together with rational inferences from
those facts, that reasonably warrant suspicion that the vehicle is involved in
illegal activities.” United States v. Brignoni-Ponce, 422 U.S. 873, 873 (1975).
“In determining whether reasonable suspicion exists in the context of roving
Border Patrol stops, we examine the totality of the circumstances and weigh
the [Brignoni-Ponce] factors.” United States v. Carranza, No. 15-51149, ---
F. App’x ---, 2016 U.S. App. LEXIS 16298, at *2 (5th Cir. Sept. 2, 2016) (per
curiam). In Brignoni-Ponce, 422 U.S. at 884–85, the Court outlined a non-
exhaustive list of factors that “may be taken into account in deciding whether
there is reasonable suspicion to stop a car in the border area”:

   (1) the characteristics of the area in which the vehicle is encountered;
   (2) the arresting agent’s previous experience with criminal activity;
   (3) the area’s proximity to the border, (4) the usual traffic patterns on
   the road; (5) information about recent illegal trafficking in aliens or nar-
   cotics in the area; (6) the appearance of the vehicle; (7) the driver’s be-
   havior; and, (8) the passengers’ number, appearance, and behavior.
United States v. Garza, 727 F.3d 436, 440 (5th Cir. 2013). Although proximity
to the border and an agent’s experience are afforded significant weight, 1 “[o]ur



      1   See United States v. Zapata-Ibarra, 212 F.3d 877, 881 (5th Cir. 2000) (quoting United
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                                       No. 15-40887
analysis is not limited to any one factor.” Zapata-Ibarra, 212 F.3d at 881.

       Espinel had reasonable suspicion to stop Ramirez’s truck. Espinel was
an experienced agent who had been patrolling Highway 77 near Raymondville
for the better part of a year. He first spotted Ramirez’s truck about forty-five
miles north of the border, well south of the Sarita checkpoint. Generally, a
vehicle that is first observed within fifty miles of the Mexican border is con-
sidered to be in proximity to it. United States v. Jacquinot, 258 F.3d 423, 428
(5th Cir. 2001). 2 Espinel saw Ramirez and his passengers behaving unusually,
suggesting they might be nervous. Such behavior is highly relevant. 3 More-
over, Espinel saw Ramirez driving a type of vehicle that is known to be popular




States v. Orozco, 191 F.3d 578, 581 (5th Cir. 1999)) (“[P]roximity to the border, is a ‘para-
mount factor’ in determining reasonable suspicion.”); United States v. Orona-Sanchez,
648 F.2d 1039, 1042 (5th Cir. Unit A June 1981) (“substantial weight” given to agent’s
experience).
       2  Ramirez points out that his truck did not cross the border (his trip originated in
South Texas), and he maintains that because the truck was registered to San Benito, Texas,
it would have been reasonable for Espinel (who checked the vehicle’s registration before
stopping it) to assume that Ramirez had come from San Benito, just north of the border. But
it is not necessary for agents to think that a suspected vehicle has ever crossed the border.
As Espinel testified, it is common practice for alien smugglers not to cross the border them-
selves; the aliens cross by foot and then are picked up by smugglers somewhere north of the
border and―as it relates specifically to the facts of this case―south of the Sarita checkpoint.
A vehicle’s proximity to the border suggests only that it is coming from the border area, where
many smuggling trips originate. “Although the agents did not believe that [the defendant’s
travel] originated at the border, [he] was within three miles of the border and was driving in
an area and on a route known for smuggling activities.” Carranza, 2016 U.S. App. LEXIS
16298, at *2.
       3 See, e.g., United States v. Soto, 649 F.3d 406, 412 (5th Cir. 2011) (finding a passen-
ger’s attempts to conceal himself from a Border Patrol agent to be relevant to the reasonable-
suspicion analysis); United States v. Rodriguez, 564 F.3d 735, 744 (5th Cir. 2009) (finding a
driver’s swerving and repeated glances in his rearview mirror to be relevant); United States
v. Guerrero-Barajas, 240 F.3d 428, 433 (5th Cir. 2001) (finding swerving relevant); United
States v. Garcia, 732 F.2d 1221, 1225 (5th Cir. 1984) (finding “evasive action of passengers”
to be a “significant factor”).
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                                       No. 15-40887
among smugglers 4 and on a highway 5 and at a time 6 that is similarly known
to be popular among them.

        Each of these facts adds to the reasonableness of Espinel’s decision to
stop Ramirez. Taken together, they are sufficient to establish reasonable sus-
picion. We do not speculate on the proper result had not all of these facts been
present.

       To support his claim that Espinel lacked reasonable suspicion, Ramirez
cites Orona-Sanchez, which concerned two Border Patrol agents who had
flashed their headlights at a pickup truck that was driving along a road known
to be a popular alien-smuggling route. The driver and his passengers appeared
startled by the light, and after the agents began following the truck, the defen-
dant’s driving became erratic. We held that the agents lacked reasonable
suspicion to stop the vehicle. But the agents were inexperienced, a point that
we emphasized twice. Orona-Sanchez, 648 F.2d at 1042 & n.2. The panel’s
closing comment suggests that it found that inexperience to be dispositive:
“[W]e give substantial weight to the fact that these agents were new to the area
and were not familiar with the residents, their vehicles or traffic patterns.”
Id. at 1042. In Carranza, 2016 U.S. App. LEXIS 16298, at *3, we relied on the



       4 The caselaw is somewhat inconsistent regarding how much weight to give to the fact
that Ramirez was driving a Ford F-150 pickup truck, a type of vehicle associated with alien-
smuggling in South Texas. In Jacquinot, 258 F.3d at 430, we found it relevant that the de-
fendant was driving a work truck, a type of vehicle that tourists rarely drive. But in Orona-
Sanchez, 648 F.2d at 1042, we found it not relevant that the defendant was driving a ¾-ton
pickup, a vehicle that is popular among smugglers but also quite common where the stop
occurred. In Carranza, 2016 U.S. App. LEXIS 16298, at *3–4, we noted that the stopped
vehicle “was atypical of the heavy duty oil field vehicles that ordinarily comprised the traffic
in the area at the time [the defendant] was traveling.”
       5See, e.g., United States v. Aldaco, 168 F.3d 148, 151-52 (5th Cir. 1999) (“[A] road’s
reputation as a smuggling route adds to the reasonableness of the agents’ suspicion.”).
       6See United States v. Chavez-Chavez, 205 F.3d 145, 149 (5th Cir. 2000) (opining that
the time of the stop contributed to a finding of reasonable suspicion).
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                                 No. 15-40887
fact that the agents were supervisors “and collectively had 24 years of experi-
ence working at the Texas-Mexico border and 27 years of experience overall.”

      Likewise, Espinel was intimately familiar with the stretch of high-
way where he stopped Ramirez. “[F]actors that ordinarily constitute innocent
behavior may provide a composite picture sufficient to raise reasonable sus-
picion in the minds of experienced officers.” Zapata-Ibarra, 212 F.3d at 881
(quoting United States v. Holloway, 962 F.2d 451, 459 (5th Cir. 1992)). Exper-
ience is not dispositive, of course. Neither is proximity.

      In United States v. Rangel-Portillo, 586 F.3d 376 (5th Cir. 2009), we held
that an experienced Border Patrol agent lacked reasonable suspicion when he
stopped a vehicle 500 yards from the Mexican border. But the agent had little
to go on besides his own intuition and the fact that the vehicle was traveling
near the border in an area known for alien smuggling. The agent observed
that the passengers were wearing shoulder seatbelts, appeared to be silent, did
not have shopping bags even though they were exiting a Wal-Mart parking lot,
and never made eye contact with the agent. Meanwhile, the driver “looked at
[the agent] too much.” Id. at 376–81. The agent thought those facts were
enough for a stop. We disagreed, noting that law-abiding citizens are just as
likely as law-breakers, if not more so, to wear seatbelts, refrain from talking,
and exit a Wal-Mart parking lot without shopping bags. Id. at 381.

      By contrast, in the current case, a number of relevant factors besides
proximity and the agent’s experience are sufficiently present to confer reason-
able suspicion. The judgment of conviction is AFFIRMED.




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