     Case: 19-50668      Document: 00515500575         Page: 1    Date Filed: 07/23/2020




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


                                    No. 19-50668
                                                                                 FILED
                                                                             July 23, 2020
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

SERGIO ZAMORA, JR.,

              Defendant - Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:18-CR-2556-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Sergio Zamora appeals his conviction for possession of marijuana with
intent to distribute on the ground that the Border Patrol agent who conducted
the traffic stop that led to his arrest lacked reasonable suspicion in violation of
the Fourth Amendment.           Zamora argues that the district court erred by
denying his motion to suppress evidence seized as a result of the stop. Finding
no error, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-50668
                              BACKGROUND
      The relevant facts are undisputed. Early one morning in August 2018,
a few minutes before 5:00 a.m., a sensor deployed by the United States Border
Patrol to detect activity along the border went off.         The sensor was
approximately 10 miles east of the Fort Hancock, Texas, port of entry. At
5:05 a.m., Agent Robert Cardiel responded to the area of the sensor activation
and discovered two sets of horse prints heading north from the US/Mexico
border. This section of the border and Interstate 10 run roughly parallel,
between two and three miles apart. Using his radio, Agent Cardiel alerted
other agents in the area.
      Agent Oscar Pinon heard the notification about the sensor and the hoof
prints. Entering Interstate 10 at mile marker 78, Agent Pinon drove east
toward mile marker 81, the point toward which the horses appeared to be
traveling. It was pitch dark at that hour of the morning, and there was no
lighting in that section of roadway. Agent Pinon saw the brake lights of a
vehicle on the shoulder of the interstate parked near mile marker 81, directly
north of where Agent Cardiel found the hoof prints and exactly where Agent
Cardiel said the horses were headed. As Agent Pinon approached, the vehicle
entered Interstate 10, exited almost immediately, turned around on an
overpass, and began heading westbound on Interstate 10 toward Fort
Hancock. Agent Pinon crossed the median and began following the vehicle, a
white Dodge pickup. He activated his emergency lights, called dispatch to
request a check on the license plate, and learned the truck was registered to
someone in Fort Hancock.
      After following the truck for several miles, Agent Pinon pulled the truck
over. A strong odor of marijuana wafted from the vehicle, and Agent Pinon
asked Zamora for permission to search the truck. Zamora consented to the
search and informed Agent Pinon before his search began that there were
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                                      No. 19-50668
drugs in the truck. Agent Pinon discovered 73.68 kilograms of marijuana in
the bed of the truck and arrested Zamora.
      During the evidentiary hearing, Agent Pinon testified that the following
facts contributed to his suspicion that criminal activity was afoot. The area
Agent Pinon first saw Zamora is in close proximity to the border and is a known
corridor for narcotics and alien smuggling. The time of day—5:00 a.m.—meant
that it was very dark, and it was close to a shift change. In Agent Pinon’s
experience, the timing was significant because smugglers often try to take
advantage of shift changes because of the increased delay in the agents’
response time.       Zamora’s vehicle was parked directly north of where the
hoofprints were headed. 1 Agent Pinon explained that smugglers frequently
use this section of Interstate 10 to load vehicles with smuggled drugs or people.
Typically, smugglers turn around and drive west after loading in order to avoid
a Border Patrol checkpoint to the east. Pickup trucks are easy to load, and
white is a color commonly used by drug smugglers in that area. Based on these
observations, Agent Pinon stopped the truck. From the foregoing facts, the
district court held that Agent Pinon had a reasonable suspicion to stop Zamora
and denied the motion to suppress.
      The district court then held a bench trial on stipulated facts. The court
found Zamora guilty and sentenced him to five years’ probation. During trial,
Zamora expressly reserved his right to appeal the denial of his motion to
suppress. Zamora now appeals that decision.
                                     DISCUSSION
      “When reviewing a denial of a motion to suppress evidence, this Court
reviews factual findings for clear error and the ultimate constitutionality of



      1   Zamora was parked on the eastbound side of the interstate, the side closer to the
border.
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                                 No. 19-50668
law enforcement action de novo.” United States v. Robinson, 741 F.3d 588, 594
(5th Cir. 2014). “Factual findings are clearly erroneous only if a review of the
record leaves this Court with a definite and firm conviction that a mistake has
been committed.” United States v. Hearn, 563 F.3d 95, 101 (5th Cir. 2009)
(internal quotation marks and citation omitted). We view evidence presented
at a pre-trial hearing on a motion to suppress in the light most favorable to the
prevailing party, United States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010), and
“[w]here a district court’s denial of a suppression motion is based on live oral
testimony, the clearly erroneous standard is particularly strong because the
judge had the opportunity to observe the demeanor of the witnesses,” United
States v. Santiago, 410 F.3d 193, 197 (5th Cir. 2005).        “[I]f there is any
reasonable view of the evidence to support it,” the district court’s denial of a
suppression motion should be upheld. United States v. Michelletti, 13 F.3d
838, 841 (5th Cir. 1994) (en banc) (internal quotation marks and citation
omitted).
      “A temporary, warrantless detention of an individual constitutes a
seizure for Fourth Amendment purposes and must be justified by reasonable
suspicion that criminal activity has taken or is currently taking place . . .”
United States v. Garza, 727 F.3d 436, 440 (5th Cir. 2013). “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); see also United States v. Brignoni-
Ponce, 422 U.S. 873, 884, 95 S. Ct. 2574, 2582 (1975). “Reasonable suspicion
requires more than merely an unparticularized hunch, but considerably less
than proof of wrongdoing by a preponderance of the evidence.” Garza, 727 F.3d
at 440 (internal quotation marks and citation omitted).
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                                 No. 19-50668
      When determining whether reasonable suspicion existed, we examine
the totality of the circumstances and weigh the factors established in Brignoni-
Ponce.
      Factors that may be considered include: (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
      narcotics in the area; (6) the appearance of the vehicle; (7) the
      driver’s behavior; and, (8) the passengers’ number, appearance,
      and behavior.
United States v. Hernandez, 477 F.3d 210, 213 (5th Cir. 2007); see also United
States v. Cervantes, 797 F.3d 326, 329 (5th Cir. 2015). These factors are not
exclusive nor is any single factor dispositive. “[E]ach case must be examined
based on the totality of the circumstances known to the agents at the time of
the stop and their experience in evaluating such circumstances.” United States
v. Rangel-Portillo, 586 F.3d 376, 380 (5th Cir. 2009). “Factors that ordinarily
constitute innocent behavior may provide a composite picture sufficient to
raise reasonable suspicion in the minds of experienced officers.” Jacquinot,
258 F.3d at 427–28.
      In the instant case, the district court found that the totality of the
circumstances provided Agent Pinon with reasonable suspicion, warranting
his stop of Zamora. We agree. Agent Pinon encountered Zamora along a
stretch of interstate well known as a drug trafficking corridor and loading zone.
See Garza, 727 F.3d at 440 (holding that an “area’s reputation as a smuggling
route support[ed] [an agent’s] reasonable suspicion”).       Agents Pinon and
Cardiel have fifteen and fourteen years of experience, respectively, as Border
Patrol agents in the Fort Hancock area.        Such experience “inform[s] our
assessment of the circumstances likely to arouse suspicion in the area.” Id. at
441. Drawing upon this experience, Agent Pinon testified that drug smugglers

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                                 No. 19-50668
often transport their illicit wares to waiting vehicles on Interstate 10 and then
return over the border to avoid detection by the border patrol. The interstate’s
proximity to the border facilitates this pattern of activity. At mile marker 81,
Interstate 10 is three miles or less from the border. See id. (holding that
“[p]roximity to the border is a paramount factor” (internal quotation marks
and citation omitted)). Agent Pinon also explained that smugglers along this
stretch of highway frequently turnaround and drive westbound in order to
avoid the Border Patrol checkpoint east of Fort Hancock, exactly as Zamora
did here. Additionally, the color and type of vehicle Zamora was driving
contributed to Agent Pinon’s suspicion because drug smugglers commonly used
vehicles with those characteristics.
      The fifth factor—information about recent illegal trafficking in the
area—is especially important in this case. Agent Pinon did not just happen
upon Zamora; instead, Agent Pinon was responding to a radio call offering
specific information about potential trafficking activity heading for the precise
location he encountered Zamora. Zamora counters that there was no evidence
of illegal activity, but Agent Pinon testified that horseback riders were
uncommon in that area, especially at 5:00 a.m. Moreover, Agent Pinon knew
that a sensor had indicated activity along the border at a time of night offering
traffickers the advantages of darkness and an impending Border Patrol shift
change. In sum, Agent Pinon encountered a vehicle that he had strong reason
to suspect of being involved in drug trafficking that he then observed following
a pattern of behavior typical of drug traffickers. We therefore agree with the
district court that Agent Pinon acted on more than “an unparticularized
hunch.” United States v. Gonzalez, 190 F.3d 668, 671 (5th Cir.1999).
      Zamora offers two counterarguments. First, he contends that the vast
majority of the traffic along Interstate 10 is for innocent purposes. Second, he
asserts that nothing specific about his behavior or the vehicle could supply
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                                  No. 19-50668
reasonable suspicion.     The first argument disregards the fact that the
reasonable suspicion analysis considers the combination of factors leading to
an investigatory stop. Cervantes, 797 F.3d at 329 (“We look to the totality of
the circumstances, and not every factor must weigh in favor of reasonable
suspicion for it to be present.”). We have previously opined that “the possibility
that [a defendant] could have been an innocent traveler” does not negate other
factors supporting reasonable suspicion. United States v. Villalobos, 161 F.3d
285, 289 (5th Cir. 1998). Here, Agent Pinon had ample reason to suspect that
Zamora was not merely an innocent traveler. The second argument likewise
fails because Agent Pinon testified to specific reasons that a white pickup truck
and Zamora’s pattern of behavior were significant to him.
      Under the totality of the circumstances, considered in connection with
the Brignoni–Ponce factors, we conclude that Agent Pinon had reasonable
suspicion to stop Zamora’s truck.
                                CONCLUSION
      For the above reasons, the district court’s order denying Zamora’s motion
to suppress is AFFIRMED.




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