     Case: 11-50371     Document: 00511829872         Page: 1     Date Filed: 04/20/2012




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

                                                                            FILED
                                                                           April 20, 2012
                                     No. 11-50371
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GREGG HERRERA, JR.,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:10-CR-357-1


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Gregg Herrera, Jr., appeals his conditional guilty plea conviction for aiding
and abetting possession with intent to distribute marijuana, for which he was
sentenced to 63 months of imprisonment. As a condition of his guilty plea,
Herrera reserved the right to appeal the denial of his motion to suppress the
marijuana seized from the vehicle he was driving when he was arrested.
        We review the district court’s findings of fact for clear error and the
conclusions of law de novo. United States v. Lopez-Moreno, 420 F.3d 420, 429

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50371

(5th Cir. 2005). “[W]e view the evidence in the light most favorable to the party
prevailing below, which in this case is the Government.” Id.
         “Generally, the fruits of illegal searches and seizures are inadmissible
under the exclusionary rule.” United States v. Lopez-Valdez, 178 F.3d 282, 289
(5th Cir. 1999). “A border patrol agent conducting a roving patrol may make a
temporary investigative stop of a vehicle only if the 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. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). The
reasonable suspicion analysis is a fact-intensive test in which the court takes
into account the totality of the circumstances while considering factors such as
those identified in United States v. Brignoni-Ponce, 422 U.S. 873, 884-85 (1975).
Id.
         Here, Border Patrol Agent Jason Denman received an anonymous tip that
a vehicle would be crossing the Rio Grande west of Presidio and then spotted
Herrera’s truck with mud on the fender wells about an hour later west of
Presidio on FM 170, a known alien and drug smuggling road along the Rio
Grande. The area was sparsely populated, dry, dusty, and desert-like, and there
were several places to cross the border illegally through the Rio Grande nearby.
It had not rained in the area for weeks. The three other vehicles on the road
were all local and had dust on them but not mud. The stop occurred about a
mile from the Rio Grande, which forms the border with Mexico. After a check
of Herrera’s driver’s license revealed that he had an outstanding warrant, Agent
Denman arrested Herrera, and authorities discovered the marijuana in
Herrera’s vehicle. The totality of the circumstances prior to the stop show that
Agent Denman’s suspicion that Herrera’s truck had crossed the Rio Grande was
reasonable. See Brignoni-Ponce, 422 U.S. at 884-85; Jacquinot, 258 F.3d at 427.
Although Herrera argues that the tip was not singularly sufficient to justify the
stop, the tip was one of many factors that supported the reasonableness of the

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                                  No. 11-50371

agent’s suspicion. See United States v. Villalobos, 161 F.3d 285, 287-91 (5th Cir.
1998).
      Herrera argues that the district court’s finding that the mud on the truck’s
fenders was “fresh” was unwarranted. While Agent Denman did not specifically
state that the mud was fresh, he did testify that seeing the mud led him to
believe that Herrera’s truck “had been in some water somewhere,” and he stated
that the area was dusty and dry. In this context, the district court’s finding that
the mud was fresh was not an abuse of discretion.
      In addition, Herrera contends that Agent Denman acknowledged that
there were other sources of water in the area, including local streams, creeks,
and hot springs. However, when defense counsel questioned Agent Denman, he
stated that he was not aware of one creek and did not know whether another had
water year-round. The agent stated that tourists visit Chinati Hot Springs year-
round, but he did not say whether they were likely to muddy their vehicles there.
There is no dispute that the conditions of the area were dry and dusty, that the
environment was desert-like, that it had not rained for several weeks, and that
the other vehicles seen on FM 170 that morning were dusty but not muddy.
Thus, the mud on Herrera’s truck weighs in favor of the stop in this case. See
United States v. Muniz-Ortega, 858 F.2d 258, 259 (5th Cir. 1988); United States
v. Adams, 569 F.2d 924, 925 (5th Cir. 1978).
      AFFIRMED.




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