                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                             No.    97-50650




                       UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                   VERSUS


                        JESUS RODRIGUEZ-RIVAS,

                                                    Defendant-Appellant.



           Appeal from the United States District Court
                For the Western District of Texas

                            August 17, 1998

Before   POLITZ, Chief Judge, JONES, and DUHÉ, Circuit Judges

DUHÉ, Circuit Judge:

     Following a bench trial, Jesus Rodriguez-Rivas (“Rodriguez”)

was convicted of conspiracy to possess with intent to distribute

marijuana and possession with intent to distribute marijuana.         He

appeals his conviction, arguing that the district court erred when

it denied his motion to suppress and admitted evidence (over 700

pounds of marijuana and his contemporaneous statements) obtained

when a Border Patrol agent stopped him without reasonable suspicion

based on articulable facts.    We agree.       We find a Fourth Amendment

violation and conclude that there were insufficient articulable
facts surrounding the Border Patrol’s stop of Rodriguez’s vehicle

to satisfy the constitutional requirement of reasonable suspicion.

                                       I.

     While awaiting the arrival of his partner to open a Border

Patrol checkpoint on U.S. Highway 385 south of Marathon, Texas,

some fifty-plus miles from the border, agent Rodolfo J. Garcia

(“Garcia”) stopped a car with Mexican license plates.                 The veteran

agent learned that the car’s occupants were Mexican custom agents

and were legally in this country.               Because he knew that Mexican

agents sometimes assist in narcotics smuggling, Garcia became even

more alert to traffic.

     Highway 385 is a main entrance to Big Bend National Park and

is heavily traveled by tourists.              It is also known to be a route

preferred    by     drug    smugglers,       allowing   them    to   by-pass    the

consistently manned immigration checkpoint on Highway 67.                  Ten to

fifteen minutes after he had stopped the Mexican customs agents,

Garcia saw a mini-van headed north.              Although he had no radar to

accurately     record      the   mini-van’s    speed,   he     perceived   it   was

traveling “at a high rate of speed.”             He noticed that the mini-van

bore no front license plate and that the driver appeared to be

slouched down in his seat.          Becoming suspicious,         Garcia u-turned

and followed the mini-van. The mini-van had no rear license plate,

only a   San      Antonio    auto   dealer’s     advertisement.       Because    he

suspected something was amiss and had no way to verify the mini-



                                         2
van’s registration, Garcia stopped the vehicle for an immigration

check.

     Appellant Rodriguez, the sole occupant of the mini-van and a

resident alien, lowered his window to present his papers.                Garcia

immediately smelled marijuana.        From his position outside the van,

Garcia saw that the center seat of the van had been removed and in

its place was a large Mexican-style blanket covering something. He

readily identified a cellophane-wrapped bundle not covered by the

blanket   as   typical   marijuana    packaging.       The    agent   arrested

Rodriguez   and   read   him   in   Spanish   his   Miranda    rights,    which

Rodriguez waived.

     In a brief, unsolicited conversation with Garcia, Rodriguez

admitted that he had agreed to drive the van for two men he had met

in Big Bend National Park.       He told Garcia he had assumed he would

be transporting illegal aliens.        Garcia’s partner arrived a short

time after the arrest with a drug dog.              The dog alerted to the

presence of drugs and the Border Patrol agents seized 726 pounds of

marijuana from the mini-van.

     Rodriguez moved to suppress all evidence - his statements and

the marijuana -claiming that the stop was an unreasonable seizure

in violation of the Fourth Amendment.           He did not argue lack of

probable cause for his arrest and the subsequent search; he argued

only that the evidence was the “fruit of a poisonous tree” and was

therefore inadmissible.        The district court denied his motion and

found him guilty of both charges:             possession with intent to

                                      3
distribute marijuana and conspiracy to possess with intent to

distribute marijuana.       Rodriguez now appeals.

                                      II.

            We review the denial of a motion to suppress under two

standards.    United States v. Inocencio, 40 F. 3d 716, 721 (5th Cir.

1994).    We review de novo determinations of questions of law, such

as whether reasonable suspicion existed to stop a vehicle.               United

States v. Nichols, 142 F.3d 857, 864 (5th                Cir. 1998). Factual

findings are reviewed for clear error. Id.                Additionally, this

court views evidence presented at a suppression hearing in the

light most favorable to the prevailing party.            Inocencio, 40 F. 3d

at 721.

                                     III.

     The Fourth Amendment protects against unreasonable searches

and seizures.     U.S. Const. amend. IV.          This amendment, however,

does not     expressly    preclude   the    use   of   evidence    obtained   in

violation of its directive.          Arizona v. Evans, 514 U.S. 1, 10

(1995).    Preclusion is a judicially created remedy whose deterrent

effect safeguards        against   future   Fourth     Amendment    violations.

United States v. Leon, 468 U.S. 897, 906 (1984).                  We apply this

judicial exclusionary rule only where its remedial objectives are

thought most effective.       Id. at 908.    Where “the exclusionary rule

does not result in appreciable deterrence, then, clearly, its use

. . . is unwarranted.”       United States v. Janis, 428 U.S. 433, 454


                                       4
(1976).

       The Supreme Court has addressed this Fourth Amendment right

directly with regard to investigatory stops by roving Border Patrol

agents away from the border, such as we consider here.         See United

States v.    Brignoni-Ponce,    422   U.S.   873   (1975).   Agents   have

authority to stop only when they “are aware of specific articulable

facts, together with rational inferences from those facts, that

reasonably warrant suspicion that the vehicles contain aliens who

may be illegally in the country.”         Id. at 884.   The Supreme Court

later clarified that the agents’ suspicion may go beyond smuggling

undocumented aliens and extend to a reasonable suspicion that the

particular vehicle they stop is engaged in criminal activity.

United States v. Cortez, 449 U.S. 411, 421-22 (1981).         By imposing

the reasonable suspicion standard, the Supreme Court sought to

avoid subjecting residents of the area under patrol to potentially

unlimited interference with use of the highways, solely at the

discretion of Border Patrol officers.         Brignoni-Ponce, 422 US. at

882.

       We are cautioned to take the totality of the circumstances

into account when we make a determination of reasonable suspicion.

Cortez, 449 U.S. at 417.       No single factor is determinative, but

each case must be assessed on the totality of the circumstances

known by the agent and on the agent’s experience in evaluating the

circumstances.   Inocencio, 40 F. 3d at 722.       We receive guidance in

this assessment from the factors identified in Brignoni-Ponce, 422

                                      5
U.S. at 884-85.      These include:

            (1)   known characteristics of a particular
                  area,
            (2)   previous experience of the arresting
                  agents with criminal activity,
            (3)   proximity of the area to the border,
            (4)   usual traffic patterns of that road,
            (5)   information    about    recent    illegal
                  trafficking in aliens or narcotics in the
                  area,
            (6)   behavior of the vehicle’s driver,
            (7)   appearance of the vehicle, and
            (8)   number, appearance, and behavior of the
                  passengers.

     Under this test, if there is no reason to believe that the

vehicle has come from the border, the remaining factors must be

examined charily.     United States v. Pallares-Pallares, 784 F. 2d

1231, 1233 (5th Cir. 1986).      When the stop occurs a substantial

distance from the border, this element is missing.       United States

v. Melendez-Gonzalez, 727 F. 2d 407, 411 (5th Cir. 1984).          In

Inocencio we determined that vehicles traveling more than 50 miles

from the border are usually a “substantial distance” from the

border.     Inocencio, 40 F. 3d at 722, n. 7 (internal quotes

omitted).   A stop 60 miles from the Mexican border, we have found,

was not near enough to the border to justify a belief that the

vehicle originated from the border.       Melendez, 727 F. 2d at 411.

     Because Rodriguez was stopped more than 50 miles from the

border, we examine most carefully the remaining Brignoni-Ponce

factors.    Even when we do so in a light most favorable to the

prevailing party on the motion to dismiss, Inocencio, 40 F. 3d at

721, our review of the record demonstrates that, in the totality of

                                      6
the circumstances, agent Garcia lacked sufficient articulable facts

to satisfy the reasonable suspicion standard.1

      The record reveals that U.S. Highway 385 is frequently used by

smugglers in an attempt to avoid the regularly-manned checkpoint on

U.S. Highway 67.    This fact was well-known to Garcia, who has

arrested many drug and alien smugglers along that highway during

his eight-plus year tenure with the Border Patrol.      He was also

well-acquainted with the usual traffic in the area and could

recognize many of the locals and the ranch and park employees, as

well as the typical tourists who visit the park.       The highway,

however, serves as the main entrance to a popular national park2

where most visitors arrive by car.

      Garcia’s experience also familiarized him with the practice of

the use of a lead car to warn a following vehicle carrying

contraband of the presence of law enforcement officers.      He was

aware that Mexican customs officials sometimes participated in this

practice, and became more alert to passing traffic after he had

stopped a vehicle occupied by such officials.       Nothing in the

record, however, indicates that the customs officials could contact

and warn another vehicle.     Garcia did not see a C.B. radio, a

walkie-talkie, or a cellular phone in the officials’ car.

      From his Border Patrol work, Garcia also knew that smugglers

  1
   See also United States v. Jones, 1998 WL 432635 (5th Cir. (Tex)).
  2
   Judicial notice has been taken that in 1975 Big Bend National
Park admitted some 331,000 visitors.

                                 7
wait for a shift change to drive past a check point.                 Usually the

stations are unmanned during this period; smugglers run a lesser

risk of discovery when traveling at that time.                  Because Garcia’s

check point had not been consistently manned before the stop in

question, we do not find the time of the stop particularly relevant

in creating reasonable suspicion.

     When Rodriguez’s mini-van approached Garcia’s marked Border

Patrol vehicle,   the   agent   was       alerted    to   the    possibility   of

criminal activity for several reasons.              The mini-van appeared to

Garcia to be traveling “at a high rate of speed,” although the

speed limit on U.S. Highway 385 is 70 miles per hour. A second

reason Rodriguez raised agent Garcia’s suspicion was his posture in

the vehicle; he seemed to    be slouched low in his seat.               Garcia’s

experience was that this posture is typical for someone trying to

avoid identification.    We note, however, that Rodriguez was only

5'7" tall.

     Coupling this posture with the possibility that the Mexican

customs agents he had stopped some 15 minutes earlier could have

been lookouts for a smuggler, Garcia attempted to identify the

vehicle registration.   He saw no front license plate on the mini-

van, although Texas requires one.          He then made a U-turn to follow

the mini-van.   Garcia saw that there was no rear license plate and

no temporary tag; the mini-van displayed only an advertisement for

a San Antonio auto dealer.      Based on the foregoing events and his

observations, Garcia suspected that the van could be carrying

                                      8
illegal aliens.   Only then did he stop the mini-van to verify its

registration and the driver’s immigration status.

      We recognize also, however, that U.S. Highway 385 serves as a

major entrance to Big Bend National Park and that the record

reveals no evidence of communication between the two vehicles

Garcia stopped.   Although the lack of required vehicle tags is a

factor to consider in determining the reasonableness of the stop,

we note that the absence of Texas license plates alone does not

authorize a Border Patrol agent to stop a vehicle.      Considering

those facts, as well as Rodriguez’ height and the absence of

evidence of a speed limit violation, we find that, when viewed in

the aggregate, the Border Patrol agent did not articulate facts

clearly sufficient to create a reasonable suspicion that Rodriguez

was engaged in illegal activity.3    Since we find that the stop of

  3
   Garcia’s testimony at the motion to suppress supports this
finding. At the time of this stop Garcia was under the impression
that the appropriate standard was mere suspicion not reasonable
suspicion. Until he was corrected by the Assistant U.S. Attorney,
this eight-year plus veteran agent testified to the following:

           The law states that we may stop any
           conveyance, any vehicle on mere suspicion that
           we suspect that there are illegal aliens on
           board. That is the law that we operate on....

And when questioned by the court, “You say under your regulations,
if you have a mere suspicion that a vehicle is being used for alien
smuggling, you can stop it?”, Garcia responded, “Oh, yes, sir...
those are within the confines of the law. That is how we operate.”

Later, responding to the court’s      inquiry as to the need for
probable cause or mere suspicion to   make a stop, Garcia explained
that “mere suspicion can vary from    either one person or numerous
persons, sir.” He characterized the   mere suspicion that led him in

                                 9
Rodriguez’s mini-van was unlawful, the evidence obtained from the

stop   is   the   “fruit   of   a   poisonous   tree”   and   was   improperly

admitted.

                                      III.

       Because we find error in the district court’s denial of the

motion to suppress, we reverse and vacate Rodriguez’s conviction

and remand.

       REVERSED, CONVICTION VACATED AND REMANDED.



ENDRECORD




this case to suspect Rodriguez of alien smuggling as the type of
vehicle driven. But he then testified “we have apprehended alien
[sic] smuggling loads in various vehicles. It can be small cars,
large cars, old vans, new vans, ...just anything on wheels can be
used to smuggle illegal aliens... There is no set profile.”



                                       10
EDITH H. JONES, Circuit Judge, dissenting:


           A person might think that a drug smuggler should be

featured on the TV program, “America’s Dumbest Criminals”, for

transporting nearly a half ton of marijuana in a vehicle with no

license tags.   As it turns out, however, this drug smuggler may be

among America’s smartest criminals, because under today’s ruling,

he will be let go.   Not only that, he should receive a reward from

the other smugglers along the Rio Grande who will take this opinion

to heart and also remove the license plates from their trucks and

vans.   I dissent.

           Not to be misunderstood, I agree that a multi-factor test

governs whether a border patrol agent had reasonable suspicion to

justify stopping a vehicle near the border.       United States v.

Brignoni-Ponce, 422 U.S. 873, 884-85, 95 S. Ct. 2574, 2582 (1975);

United States v. Inocencio, 40 F.3d 716, 722 (5th Cir. 1994).   The

majority have properly cited that test.   In my view, the following

factors4 fulfill the reasonable suspicion test: Highway 385 emerges

from Big Bend National Park and is a road regularly used by drug

and alien smugglers to avoid the permanent border patrol checkpoint

on Highway 67; the appellant was traveling around the time of the


  4
     All of these factors are listed in the district court’s
careful opinion as grounds for reasonable suspicion except that the
Mexican Customs’ officials’ car preceded appellants’ van by 10-15
minutes.

                                 11
shift change, when there was a higher probability that no one would

be manning the checkpoint;5 the driver was a Hispanic male; Agent

Garcia had minutes before stopped Mexican customs agents who have

been known to escort vehicles containing contraband; the driver was

slouched in his seat, as, in the Agent’s experience, people trying

to avoid identification often are;6 and, the driver was traveling

at a perceived high speed.       Most important, there were no proper

identifying license plates on appellant’s van.

           Although all of these factors were considered by Agent

Garcia, what could be more telling than the lack of vehicle license

plates?   Why would anyone emerging from the wilderness of Big Bend

National Park     fail   to   have   license   plates,   unless   to    escape

identification?    The majority attempts no innocent explanation for

appellant’s failure to have license plates; instead, the majority

simply state that Agent Garcia had no authority, as a Border Patrol

agent, to stop the driver for that traffic violation.                  This is

correct but irrelevant for two reasons.

  5
     The majority believe that the timing is irrelevant since the
Highway 385 checkpoint was irregularly staffed. But Agent Garcia
testified that he and his colleagues will work a full shift at that
checkpoint when assigned to it, and one shift runs from 7 a.m. to
3 p.m. The district court thus correctly found that Agent Garcia
was reasonably concerned by the time of day in which appellant was
traveling.
  6
     The majority discount the driver’s slouching because he was
“only 5'7" tall” and therefore might not be visible above the
driver’s seat.   I disagree.   Much shorter drivers are clearly
visible if they sit upright. Agent Garcia’s observation, found
credible by the district court, should not be disbelieved at the
appellate level.

                                      12
            First, the appellant had no constitutional right not to

be stopped while driving along in blatant violation of traffic

laws. The Fourth Amendment exclusionary rule is intended to combat

unconstitutional actions by law enforcement officers, but its

premise is the violation of a person’s reasonable expectation of

privacy.    A person has no reasonable expectation that he will not

be stopped for driving without license plates.         By analogy, a man

involved in a barroom brawl would have no constitutional privacy

claim, and hence no ground for suppression, merely because he is

arrested by an off-duty school-crossing guard rather than the local

beat cop.    See, e.g., Fields v. City of South Houston, 922 F.2d

1183, 1188 (5th Cir. 1991) (question of officer’s authority to

arrest in § 1983 case turns on constitutional standard and not on

Texas law governing arrest).          The proper question is not whether

Agent Garcia had authority to arrest for traffic violations but

whether    Agent   Garcia   had   a   reasonable   suspicion   of   illegal

smuggling activity based on all the conduct he saw.

            Second, even if appellant had some constitutional right

to be arrested only by a traffic law enforcement officer for

driving without license plates, that violation may nevertheless be

pertinent to the multifactor reasonable suspicion standard.7            One

  7
     Border Patrol agents often rely on the commission of relevant
traffic violations as one ground of reasonable suspicion.       See
United States v. Garza, 544 F.2d 222, 224 n.3 (5th Cir. 1976) (“The
turn from an incorrect lane is relevant not to show violation of
traffic laws but to show peculiar driving patterns which support
the officers suspicion that aliens might have entered the United

                                      13
must credit Agent Garcia’s common sense and his eight-plus years of

experience when he inferred that the lack of legally-required

plates, taken together with the other suspicious circumstances,

suggested    the    possibility   of   alien   or   contraband   smuggling.

Surely, the absence of license plates in that location is as clear

an indicator of an intent to elude identification as if the

appellant had suddenly sped up on seeing a border patrol car.

Appellant may as well have hoisted a flag saying, “Escape attempt

underway!”

            To ignore the absence of license plates, as the majority

have essentially done, is a serious error.            From now on, brazen

smugglers can simply breeze by border patrol agents after removing

their license plates.         They will thus successfully hinder law

enforcement        and   investigation8     without    any   chance    that

countermeasures can be taken.

            Part of the majority’s unreasonable conclusion seems

directed at Agent Garcia’s failure to adhere to the niceties of

legal language during his testimony.           The majority footnotes his

confusion between “mere suspicion” and “reasonable suspicion”. Too



States illegally. Naturally, as in the present case, the two may
be related.”); see also United States v. Espinoza-Santill, 976 F.
Supp. 561, 565-66 (W.D. Tex. 1997) (traffic violation is a factor
a Boarder Patrol officer may consider in development of reasonable
suspicion).
  8
     Agent Garcia testified that he could not identify the van
without license tags, and a post-arrest attempt to identify it
through the vehicle identification number (VIN) was also fruitless.

                                       14
much is made of this error even for a footnote.       As the majority

knows, no suspicion is required for routine border or functional-

equivalent searches,9 while reasonable suspicion is the basis for

stops by roving border patrols like this one.      Brignoni-Ponce, 422

U.S. at 884, 95 S. Ct. at 2582.        Agent Garcia became momentarily

confused and then explained the distinction correctly.       The whole

point of his testimony, however, was to outline the multiple

grounds on which he had a reasonable suspicion that appellant was

engaged in criminal activity.      Even more telling, the district

court, which witnessed the testimony, made no mention of Agent

Garcia’s verbal mis-step in his findings.       If the district court

did not consider this exchange significant in judging the witness’s

credibility, neither should we.

          The Supreme Court has made it clear that “the relevant

inquiry is not whether particular conduct is innocent or guilty,

but the degree of suspicion that attaches to particular types of

non-criminal acts.”   United States v. Sokolow, 490 U.S. 1, 10, 109

S. Ct. 1581, 1587 (1989) (quoting Illinois v. Gates, 462 U.S. 213,

243-44 n.13, 103 S. Ct. 2317, 2335 n.13 (1973)).        Not only does

this case involve a congeries of arguably “innocent”--but certainly

suspicious--circumstances, but in addition, the patently illegal

act of driving without license tags under circumstances that


  9
     United States v. Cardenas, 9 F.3d 1139, 1147-48 (5th Cir.
1993) (citing United States v. Montoya de Hernandez, 473 U.S. 531,
538, 105 S. Ct. 3304, 3309 (1985)); see also 8 U.S.C. § 1357.

                                  15
advertised the appellant’s desire to evade identification by law

enforcement agents.    Taking these facts together, there was more

than reasonable suspicion of illegal conduct.

          A   final   word   is   in    order   about   the   government’s

presentation of this case.    The government argued in the district

court, but not in this court, that Agent Garcia’s actions should be

approved under the good faith exception to the exclusionary rule.

This court has applied the good faith exception to a Border Patrol

stop under similar circumstances.        United States v. DeLeon-Reyna,

930 F.2d 396, 399 (5th Cir. 1994) (en banc).        In DeLeon-Reyna, an

officer’s reasonable but mistaken belief that a truck bore false

license plates was held innocuous under the good-faith exception.

Here, as in DeLeon-Reyna, the agent’s misperception about the

significance of a traffic violation was reasonable and made in good

faith.   The government should be chastised for not raising this

plainly controlling issue in defense of its conviction and our

citizens’ safety from illegal drug importation.

          I respectfully dissent.




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