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

                                                 FILED
                                                                         November 25, 2009
                                       No. 08-51128
                                                                       Charles R. Fulbruge III
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

ALDO ANTONIO HERNANDEZ-MOYA,

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 7:08-CR-100-ALL


Before JONES, Chief Judge, and SMITH and DeMOSS, Circuit Judges.
PER CURIAM:*
       While driving on Interstate 20, Defendant-Appellant Aldo Antonio
Hernandez-Moya was stopped by border patrol agents and charged with
transporting illegal aliens. He pled guilty while reserving the right to pursue a
motion to suppress evidence obtained by the border patrol agents, asserting that
the stop was conducted without reasonable and articulable suspicion. In a
thorough and well-reasoned ruling that develops the facts more thoroughly than
we need do here, the district court denied the motion to suppress. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 08-51128

finding that the district court did not err and that the use of the Brignoni-Ponce
standard to assess roving border patrol stops does not violate the Equal
Protection Clause.

                                I. Background

      Hernandez-Moya was charged in a two-count indictment of transporting
illegal aliens and using and possessing counterfeit alien registration documents.
These charges arose after two border patrol agents stopped Hernandez-Moya’s
vehicle and discovered six illegal aliens from Mexico, including Defendant-
Appellant himself.
      Agent Michael Meyer and his partner were parked in a marked Border
Patrol SUV and observing eastbound traffic traveling on Interstate Highway 20,
east of Midland, Texas. Interstate 20 is a heavily traveled corridor linking the
El Paso area on the U.S.-Mexico border and the Dallas-Fort Worth area. The
agents’ SUV was parked on the median of the highway and the headlights of the
SUV shined onto the passing cars. As a result, the agents had a clear view into
the interiors of passing vehicles. Around 6:00 a.m., Agent Meyer observed a
dark-colored Chevy Tahoe pass on the interstate. The Tahoe was not violating
any traffic laws. Agent Meyer observed six occupants in the Tahoe all of whom
appeared to be Hispanic.
      The agents followed the Tahoe and ran a computer check, which showed
that the car was registered to an address in Garland, Texas, near Dallas. After
the agents’ vehicle pulled into traffic behind the Tahoe, the Tahoe weaved
slightly from side to side, though not outside its marked lane, and slowed
considerably below the speed limit. As Agent Meyer pulled in closer, he observed
that the Tahoe now appeared to only contain two individuals—the driver and the
front passenger. Agent Meyer inferred that the four passengers in the back had
ducked down to hide.




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      Based on these facts, Agent Meyer pulled over the Tahoe and conducted
an immigration stop. Upon questioning by Agent Meyer, Hernandez-Moya, the
driver of the Tahoe, admitted that he was a Mexican national who was in the
United States illegally. Upon further questioning, the remaining passengers
also indicated that they were in the United States illegally. Hernandez-Moya
was then arrested and taken to the Border Patrol station in Midland.
      Hernandez-Moya filed a motion to suppress all of the counterfeit
documents and other evidence seized from the Tahoe and all incriminating
statements made to law enforcement officials. Hernandez-Moya argued that the
agents did not have reasonable and articulable suspicion to conduct the stop.
The district court denied the motion. Thereafter, Hernandez-Moya pled guilty
to both counts of the indictment, but retained his right to appeal the motion to
suppress. Hernandez-Moya now appeals the denial of his motion to suppress.


                           II. Standard of Review

      This court reviews the district court’s factual findings under the clearly
erroneous standard. United States v. Inocencio, 40 F.3d 716, 721 (5th Cir. 1994).
The evidence presented at a pre-trial hearing on a motion to suppress is viewed
in the light most favorable to the prevailing party. Id. The conclusions of law
derived from a district court’s findings of fact, such as whether a reasonable
suspicion existed to stop a vehicle, are reviewed de novo. Id.


                                III. Discussion
A. Vehicle Stop
      Appellant argues that the district court erred by applying the standard for
border searches under United States v. Brignoni-Ponce rather than the search
and seizure standard articulated in Terry v. Ohio. See Terry v. Ohio, 392 U.S.
1, 88 S. Ct. 1868 (1968); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct.
2574 (1975).    Appellant asserts that the Brignoni-Ponce standard is only


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applicable to those cases involving a close proximity to the border. This is
incorrect. This court has held that roving border patrol stops, even those not in
close proximity to the border, should be analyzed using the Brignoni-Ponce
factors. Inocencio, 40 F.3d at 722. See also United States v. Orozco, 191 F.3d
578, 581-582 n.3 (5th Cir. 1999) (applying Brignoni-Ponce to a stop that occurred
some 200-300 miles away from the border and rejecting the argument that stops
beyond a 100-mile zone from the border are precluded from a Brignoni-Ponce
inquiry). Proximity to the border is only one of a number of Brignoni-Ponce
factors weighed when determining whether a border patrol agent had the
requisite reasonable suspicion to make a stop. Inocencio, 40 F.3d at 722.
      In the alternative, Appellant contends that even if the court were to apply
the Brignoni-Ponce standard, the border patrol agent still lacked the requisite
reasonable suspicion for a vehicle stop.      The Brignoni-Ponce inquiry is a
“fact-intensive test in which the court looks at all circumstances together to
weigh not the individual layers, but the laminated total.” United States v.
Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). A number of factors may be
considered, including: characteristics of the area, such as its proximity to the
border, usual traffic patterns, previous experience with alien traffic; information
about recent illegal border crossings; the driver's behavior, such as erratic
driving or obvious attempts to evade officers; the driver’s behavior, the
appearance of the vehicle, such as whether the vehicle is heavily loaded; and
appearance of the persons in the vehicle such as if officers observe passengers
trying to hide.   Brignoni-Ponce, 422 U.S. at 884-85.         No single factor is
controlling, and the absence of any particular factor is not determinative.
United States v. Cardona, 955 F.2d 976, 980 (5th Cir. 1992).
      In its ruling, the district court found the evasive behavior of the
passengers to be the most significant factor supporting reasonable suspicion.
Agent Meyer testified that he initially saw six people in the Tahoe as it drove
past the agents’ marked Border Patrol vehicle. Meyer testified, however, that

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only two of the six occupants could be seen after the Border Patrol vehicle pulled
onto the interstate to follow the Tahoe. Agent Meyer and his partner concluded
that the Tahoe’s passengers were attempting to hide by ducking down. This
court has previously found “evasive action of passengers” to be a “significant
factor” in justifying a stop. United States v. Garcia, 732 F.2d 1221, 1225 (5th
Cir. 1984). Agent Meyer also observed that the passengers appeared to be
Hispanic. Brignoni-Ponce held that while a stop based on the ethnicity of the
vehicle occupants alone cannot be justified, appearance and ethnicity can be
considered as another factor. 422 U.S. at 886-87.
       Viewing the totality of the circumstances, the border patrol agents had
articulable facts, together with rational inferences, reasonably warranting
suspicion that Appellant’s vehicle may have contained illegal aliens.         See
Brignoni-Ponce, 422 U.S. at 884. We agree with the district court’s analysis.
B. Equal Protection Claims
       Appellant also argues that it is a violation of the Equal Protection Clause
to apply the Brignoni-Ponce test based on the Hispanic ethnicity of the vehicle
occupants while applying the Terry test to white vehicle occupants stopped for
non-immigration reasons.       Appellant’s argument misstates the difference
between the two tests. The application of one test over the other does not turn
upon race or ethnicity but on the type of law enforcement officers and the nature
of the stop.   Terry analysis applies to investigative stops made by local police
officers, while Brignoni-Ponce applies to stops by roving border agents. See
Terry, 392 U.S. at 5; Brignoni-Ponce, 422 U.S. at 881-82; Cardona, 955 F.2d at
980.
       Further, under Brignoni-Ponce, ethnicity alone does not determine or
support reasonable suspicion for a stop. 422 U.S. at 886-87. However, the
Supreme Court has held that ethnic appearance may be considered as one of the
relevant factors in supporting a reasonable suspicion that a vehicle is involved
in the transportation of illegal aliens. Id. We find that applying the Brignoni-

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Ponce factors to a roving border patrol stop does not violate the Equal Protection
Clause.
                                IV. Conclusion
      The district court’s order denying the motion to suppress appropriately
applied the Brignoni-Ponce standard and thoroughly considered all the relevant
factors. For essentially the same reasons articulated by the district court, we
affirm the judgment of conviction.
      AFFIRMED.




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