     Case: 17-40764      Document: 00514478726         Page: 1    Date Filed: 05/18/2018




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

                                                                                FILED
                                      No. 17-40764                          May 18, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


              Plaintiff - Appellee

v.

KAREN MACKEY,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:16-CR-772-1


Before HIGGINBOTHAM, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM:*
       Karen Mackey was charged with knowingly conspiring to transport
aliens within the United States after border patrol agents discovered
undocumented aliens in the trunk of her vehicle. She moved to suppress
evidence attained during the traffic stop and to dismiss the indictment. The
district court denied both motions. Mackey then pled guilty. We AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 17-40764
              FACTUAL AND PROCEDURAL BACKGROUND
      In the early morning hours of June 6, 2016, Border Patrol Agent Roger
Monterojas was inspecting vehicles at a Laredo, Texas border checkpoint.
Around 12:57 am, a sedan approached the checkpoint. Monterojas saw that
the driver, later identified as Ester Trevino, was a female and that the interior
of the sedan was messy. Monterojas believed Trevino to be between the age of
20 and 30 years old.     After speaking with Trevino for approximately ten
seconds, Monterojas permitted her to proceed.
      The next vehicle to approach the checkpoint was also a sedan, and it
arrived at approximately 12:58 am. Karen Mackey was later identified as the
driver of the second sedan. Monterojas saw that Mackey was a female and that
a child was seated in the seat behind her. Monterojas spoke with Mackey for
approximately five seconds and then allowed her to continue.
      Immediately following Mackey’s departure, a third sedan approached
the checkpoint at 12:59 am.      Monterojas observed that the driver, later
identified as Ashley Flores, was a female and around the same age as Trevino
and Mackey. He also noticed that the back of Flores’s sedan was riding low.
Monterojas then asked Flores for permission to open the trunk, which she
granted.   When Monterojas opened the trunk, he discovered two males.
Monterojas immediately alerted other border patrol agents, including Richard
Lopez and Ricardo Gomez, that he suspected that the sedans driven by Mackey
and Trevino also contained undocumented aliens.
      The agents began searching the license-plate reader, which is a computer
system that contains photos that are automatically taken of each vehicle that
approaches the checkpoint. After the agents evaluated the license plate images
of Mackey’s and Trevino’s sedans, Monterojas told the agents to chase after the
vehicles. Around 1:02 am, Lopez left the checkpoint station in pursuit of
Mackey and Trevino.
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                                   No. 17-40764
        Lopez speeded north on Highway 83 that passed through the checkpoint.
He turned onto a side road and encountered Border Patrol Agent Mariano
Castillo. Lopez asked Castillo if he had seen any vehicles passing by on that
road.    Castillo had not.   Lopez informed Castillo that he was looking for
Mackey’s and Trevino’s sedans. Lopez and Castillo determined that the sedans
had likely continued north on Highway 83. After eight to ten minutes of
driving at high speed on Highway 83, the agents saw Mackey’s and Trevino’s
sedans.
        After catching up with the sedans, Castillo then pulled his vehicle behind
Trevino’s sedan, and Lopez pulled his vehicle behind Mackey’s.              Lopez
activated his emergency lights.         Mackey stopped her vehicle.         Lopez
approached the passenger side and talked with Mackey. Mackey confirmed
that she had just passed through the checkpoint and gave Lopez permission to
inspect the trunk. Upon opening the trunk, Lopez discovered two individuals.
Around this same time, Castillo stopped Trevino’s sedan and with her consent,
he searched it. Castillo also found two individuals in the trunk.
        Sometime during the agents’ pursuit of the sedans, Flores had informed
Gomez, who had remained at the checkpoint station, that she was following
two sedans. Gomez relayed this information over the dispatch radio, but the
information was not received by Lopez or Castillo until after they stopped the
vehicles.
        Mackey, Trevino, and Flores were charged with knowingly conspiring to
transport and move within the United States an alien that has come to,
entered, or remained in the United States. See 8 U.S.C. §§ 1324(a)(1)(A)(ii),
(a)(1)(A)(v)(I). They were also each charged with three substantive counts.
Mackey moved the district court to suppress the evidence that was attained
during the traffic stop, contending that the stop was not predicated upon
reasonable suspicion.
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                                     No. 17-40764
      The district court referred the motion to a magistrate judge, who
conducted an evidentiary hearing. Monterojas, Lopez, Castillo, and Gomez
each testified at the hearing.        Monterojas testified as to the factors that
supported his suspicion that Mackey was also involved in alien smuggling after
he had discovered two individuals in Flores’s trunk. Monterojas stated that
like Flores, Mackey and Trevino were unaccompanied, 1 young female drivers
and dressed in a way that was unusual for women proceeding through the
checkpoint. Monterojas also believed each of the drivers to be acting in a
friendlier manner than the typical late-night driver. Other factors Monterojas
mentioned were his observations that the vehicles were all sedans with dirty
appearances and had in close sequence arrived at the checkpoint when the
agents were changing shifts.
      Following the evidentiary hearing, Mackey filed a motion for leave to file
her concurrently submitted motion to dismiss the indictment, along with a
motion that is no longer relevant. Mackey acknowledged that her motion to
dismiss was untimely but contended she should be granted leave to file because
the factual basis for the dismissal only arose during the suppression hearing.
Mackey argued that the agents’ testimony at the suppression hearing revealed
that the indictment should be dismissed because the agents violated her right
to be free from gender profiling under the Fifth Amendment’s Due Process
Clause and improperly restrained her First Amendment right to freedom of
expression.
      The magistrate judge recommended that the district court deny all of
Mackey’s      motions.      After    considering     Mackey’s      objections    to   the
recommendations, the district court denied Mackey’s motions. Mackey later



      1  Monterojas testified that he saw that Mackey had a child in the back seat. Mackey
at least was unaccompanied by any other adult.
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                                   No. 17-40764
entered a guilty plea for knowingly conspiring to transport undocumented
aliens within the United States. Her plea was conditioned on the right to have
appellate review of the district court’s denial of her motions to suppress and to
dismiss the indictment. The district court accepted the plea and sentenced
Mackey to 24 months of imprisonment and three years of supervised release.


                                  DISCUSSION
I.    Motion to Suppress
      In considering the district court’s denial of Mackey’s motion to suppress,
we view the evidence in the light most favorable to the Government, who
prevailed on those rulings. United States v. Lopez-Moreno, 420 F.3d 420, 429
(5th Cir. 2005). We review the district court’s findings of fact for clear error;
that court’s determination that the facts provided reasonable suspicion and its
conclusions of law are reviewed de novo. Id. at 429–30. Not relevant in our
review are the “officer’s subjective intentions” because reasonable suspicion
and probable cause are measured under an objective test. Id. at 432.
      Individuals are protected by the Fourth Amendment from “unreasonable
searches and seizures.” U.S. CONST. amend. IV.            Traffic stops constitute
seizures for Fourth Amendment purposes. Lopez-Moreno, 420 F.3d at 430.
“[A]n officer must have an objectively reasonable suspicion that some sort of
illegal activity, such as a traffic violation, occurred, or is about to occur, before
stopping the vehicle.”      Id.   In reviewing whether there was 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.’” Id. (quoting Terry v. Ohio, 392
U.S. 1, 19–20 (1968)).
      Reasonable suspicion for an investigatory vehicular stop “cannot result
from the simple fact that two cars are traveling on a roadway . . . one in front
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                                  No. 17-40764
of the other, unless there are other ‘connecting factors’ to establish that their
simultaneous travel could rationally be considered suspicious.” United States
v. Rangel-Portillo, 586 F.3d 376, 382 (5th Cir. 2009) (citation omitted). Here,
the factors identified by the district court that made all three drivers
sufficiently suspicious are these out-of-the-ordinary connecting details: “(1)
they arrived at the checkpoint nearly contemporaneously to each other, (2) no
other vehicles arrived at the checkpoint between them, and (3) all three of them
drove sedans.” The district court explicitly did not consider that all three
drivers were women, saying these other details were sufficient for the needed
suspicion. Mackey contends that this holding was error because, contrary to
the district court’s findings, the agents relied on her gender as the sole
justification for stopping her vehicle. She argues that such reliance on gender
is an insufficient basis to justify an investigatory vehicular stop.
      Mackey relies on a 1975 Supreme Court opinion to support that gender
cannot be used as the sole factor supporting reasonable suspicion. See United
States v. Brignoni-Ponce, 422 U.S. 873 (1975). The Court in Brignoni-Ponce
held that the apparent Mexican ancestry of a vehicle’s occupants, standing
alone, cannot justify stopping a vehicle in the area surrounding the United
States-Mexico border. Id. at 885–86. Mackey contends that, like Mexican
ancestry, the gender of a vehicle’s occupants is an insufficient basis to justify
stopping a vehicle. Mackey’s argument does not fairly take into account how
the district court’s findings supporting denial of suppression smoothly fit with
what the Supreme Court held. Near the border with Mexico, the Supreme
Court determined, the apparent Mexican ancestry of someone was “a relevant
factor, but standing alone it does not justify stopping all Mexican-Americans
to ask if they are aliens.” Id. at 887. The Court specifically authorized agents
to consider “the usual patterns of traffic on the particular road,” a “driver’s
behavior,” and “[a]spects of the vehicle itself.” Id. at 884–85.
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                                   No. 17-40764
      The district court’s finding that the agents did not stop her solely because
she is a woman is supported by the fact that neither Mackey nor the first driver
was stopped for suspected alien smuggling when the agents first encountered
the female drivers. It was only after the discovery of suspected aliens in the
third vehicle’s trunk that Monterojas became suspicious that Mackey also was
involved in illegal activity. Monterojas testified that he believed Mackey’s
vehicle was connected to the third one because it was unusual for that time of
night to have three sedans that were driven by unaccompanied, similarly aged
women to approach the checkpoint one after the other. The three sedans were
unusual to Monterojas because the usual traffic pattern between 12:50 and
1:00 am is commercial trucks and 18-wheelers that work on the oil rigs in the
surrounding area. Traffic patterns and the kinds of vehicles are relevant
according to Brignoni-Ponce. Id.
      Agent Lopez similarly testified that based on his experience at the
checkpoint, at that time of night, the usual traffic is “oilfield workers or tractor-
trailers,” not sedans. According to Lopez, when agents at the checkpoint
encounter numerous sedans late at night, it is usually because a nearby
sporting event had taken place. The agents were unaware of any such event
on the night that Mackey’s vehicle approached the checkpoint.               Indeed,
Monterojas testified that there had been “regular traffic” coming through the
checkpoint on that night, which consisted of trucks and 18-wheelers.
      Lastly, Monterojas found the timing of Mackey’s arrival also to be
suspicious because she and the other drivers approached the checkpoint when
the agents were about to change shifts.            Monterojas testified that the
smugglers in the surrounding area know when the agents change shifts and
wait for these times to “make their move” because agents tend to get distracted
when they are passing information over to the next agent.


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                                 No. 17-40764
       In summary, whether agents “developed a reasonable suspicion must be
made based on the totality of the circumstances and the collective knowledge
and experience of the” agents. United States v. Estrada, 459 F.3d 627, 631–32
(5th Cir. 2006).    Viewing the evidence in the light most favorable to the
Government and considering the totality of the circumstances, the agents’
discovery of undocumented aliens in Flores’s trunk, coupled with the agents’
informed belief that Mackey’s sedan was traveling with Flores’s, provided the
agents with reasonable suspicion to conduct an investigatory stop of Mackey’s
vehicle. See, e.g., United States v. Bender, 588 F.2d 200, 202 (5th Cir. 1979).
       We need not consider the Government’s alternative argument that
suppression of the evidence is unwarranted under the inevitable discovery
doctrine.


II.    Motions for Leave and to Dismiss the Indictment
       The district court denied Mackey’s motion for leave to file a motion to
dismiss because she failed to show good cause. In the alternative, the court
determined that the offered motion to dismiss, based on gender profiling and
freedom of expression claims, was meritless. We examine only the second
ruling.     We give de novo review to the denial of a motion to dismiss an
indictment. United States v. Ollison, 555 F.3d 152, 160 (5th Cir. 2009).


       A. Gender Profiling
        “Government misconduct does not mandate dismissal of an indictment
unless it is ‘so outrageous’ that it violates the principle of ‘fundamental
fairness’ under the due process clause of the Fifth Amendment.” United States
v. Johnson, 68 F.3d 899, 902 (5th Cir. 1995) (quoting United States v. Russell,
411 U.S. 423, 431–32 (1973)).      “As such, dismissal of an indictment for
outrageous government conduct is proper only in ‘the rarest circumstances.’”
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                                 No. 17-40764
United States v. Gutierrez, 343 F.3d 415, 421 (5th Cir. 2003) (quoting Johnson,
68 F.3d at 902).
      Mackey contends that the district court erred in not dismissing the
indictment because the agents’ testimony at the suppression hearing
established that the agents violated her due process rights by considering her
gender as a basis for justifying her detention. She argues that such “gender
profiling” constituted behavior that necessitates dismissal of the indictment
with prejudice.
      We have already discussed that the record does not support that the
agents stopped Mackey solely because she is a woman. Though Mackey’s
gender was a factor that connected her to Flores, this factor was only relevant
in light of the agents’ knowledge pertaining to the checkpoint’s usual traffic.
The agents’ consideration of Mackey’s gender in this context was not error,
much less “so ‘shocking to the universal sense of justice’ . . . that the
government should have been deprived for all time of the opportunity to
prosecute” Mackey. United States v. Mauskar, 557 F.3d 219, 232 (5th Cir.
2009) (citation omitted).


      B. Freedom of Expression
      Mackey also argues that comments by Monterojas that he believed all
three women were not dressed in the typical “dress code” is a violation of her
freedom of expression. A person’s “choice to wear clothing as a symbol of an
opinion or cause” can be First Amendment-protected expression “if the
message is likely to be understood by those intended to view it.” Canady v.
Bossier Par. Sch. Bd., 240 F.3d 437, 441 (5th Cir. 2001). Though not every
choice of clothing is afforded First Amendment protection, “certain choices . . .
may have sufficient communicative content to qualify as First Amendment
activity.” Id. at 441 n.3.
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                                No. 17-40764
      On the night she was stopped, Mackey was wearing a solid gray tank
top, solid black pants, and sandals.       Her clothing displayed no words or
illustrations.   Mackey contends that her attire constituted protected
expression and argues that the agents impermissibly targeted her because she
was not dressed in clothing that was the typical “dress code” for women passing
through the checkpoint.
      First, nothing in the record supports that Mackey’s choice of clothing
was “endowed with sufficient levels of intentional expression to elicit First
Amendment shelter.” Id. at 440. Moving beyond that defect in the claim, we
examine the decision Mackey cites in which we held that “placing an NRA
sticker in one’s vehicle is certainly legal and constitutes expression which is
protected by the First Amendment.” Estep v. Dallas Cnty., 310 F.3d 353, 358
(5th Cir. 2002). Our conclusion that an officer could not consider such an
expressive sticker in formulating reasonable suspicion to make a stop is
irrelevant here. See id. at 359. Indeed, we declined to decide “whether the
presence of an NRA sticker could ever contribute to a ‘reasonable suspicion’ of
danger calculus.” Id. at 358–59. Had three vehicles in a row at a border
checkpoint all had identical expressive stickers, nothing in Estep clearly
prohibits officers from considering that fact to be evidence of a connection
among them.
      AFFIRMED.




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