Case: 19-60294   Document: 00515531838    Page: 1    Date Filed: 08/18/2020




        United States Court of Appeals
             for the Fifth Circuit                       United States Court of Appeals
                                                                  Fifth Circuit

                                                                FILED
                                                          August 18, 2020
                           No. 19-60294                    Lyle W. Cayce
                                                                Clerk

 United States of America,

                                                    Plaintiff—Appellee,

                              versus

 Pavel Isaac Burgos-Coronado, also known as Pavel Isaac
 Burgos Coronado,

                                               Defendant—Appellant,

                      consolidated with


                           No. 19-60295


 United States of America,

                                                    Plaintiff—Appellee,

                              versus

 Javier Alejandro Moline-Borroto, also known as Javier
 Alejandro Moline Borroto,

                                               Defendant—Appellant,
Case: 19-60294     Document: 00515531838        Page: 2    Date Filed: 08/18/2020




                          consolidated with


                                No. 19-60380


 United States of America,

                                                          Plaintiff—Appellee,

                                    versus

 Valentina Sybreg Castro-Balza, also known as Valentina
 Sybreg Castro Balza,

                                                     Defendant—Appellant.


                 Appeal from the United States District Court
                   for the Northern District of Mississippi
                           USDC No. 1:18-CR-70-3
                           USDC No. 1:18-CR-70-4
                           USDC No. 1:18-CR-70-7


 Before Clement, Southwick, and Higginson, Circuit Judges.
 Leslie H. Southwick, Circuit Judge:
       Defendants challenge the denial of their motion to suppress evidence,
 arguing police officers did not have reasonable suspicion that would allow
 prolonging their stop at a highway safety checkpoint. We AFFIRM.


         FACTUAL AND PROCEDURAL BACKGROUND
       Around midnight on May 18, 2018, State Troopers Gregory Bell,
 Matthew Minga, Andrew Beaver, and Steven Jones set up a “driver’s safety
 checkpoint” on a highway approximately eight miles east of Starkville,
 Mississippi. The checkpoint was intended for the troopers to check for



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                                   No. 19-60294

                       consolidated with 19-60295, 19-60380

 driver’s licenses, insurance, seat belt usage, and other safety matters. After
 approximately 15 to 20 minutes of light traffic, the troopers stopped a Toyota
 with a Florida license plate traveling north, occupied by the three defendants
 — Pavel Isaac Burgos-Coronado, Javier Alejandro Moline-Borroto, and
 Valentina Sybreg Castro-Balza. Trooper Minga approached the Toyota and
 made contact with the occupants. Trooper Bell, who was observing and
 overheard Trooper Minga’s exchange with the Toyota occupants, identified
 Moline-Borroto as the driver, Burgos-Coronado in the rear driver-side seat,
 and Castro-Balza in the rear passenger-side seat. At a September 7, 2018
 hearing on the defendants’ motion to suppress, Trooper Bell described the
 exchange with the Toyota occupants:
                Trooper Minga asked the driver for his driver’s license
        and proof of insurance. Mr. Borroto provided him a Florida
        temporary issue driver’s license. And, at that time, I believe he
        said it was a rental vehicle. Trooper Minga asked him, then,
        who he had in the rear seat and who his passengers were.
              Mr. Borroto said something in Spanish to them, rolled
        down the back window; and Mr. Pavel [Burgos-Coronado]
        provided another temporary Florida driver’s license; and
        Ms. Balza provided a Venezuela passport.
 Bell subsequently answered some questions:
        Q. . . . [W]hen Trooper Minga asked about the other persons
        in the car, were you able to hear that?
        A. Yes, sir.
        Q. And what happened? How was the conversation between
        the passengers in the backseat?
        A. It was in Spanish between them.
        ...




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                                 No. 19-60294

                   consolidated with 19-60295, 19-60380

        Q. Okay. And there was a conversation, then, between the
        people in the car or Trooper Minga with the persons in the
        backseat?
        A. No. The driver of the vehicle with the persons in the
        backseat.
        Q. And were you able to listen and determine whether it was in
        English or Spanish?
        A. It was Spanish.
        Q. Did you ever attempt to speak to the persons in the backseat
        of the Toyota?
        A. I tried to, but we didn’t — outside of basic conversation,
        Mr. [Moline-]Borroto pretty much translated anything we
        asked.
 At the same hearing, Bell also testified that he started questioning Moline-
 Borroto only after the passengers gave Trooper Minga their identifications.
 Upon inspecting the Toyota occupants’ identifications, Trooper Bell noticed
 that Castro-Balza’s Venezuelan passport did not have a stamp indicating her
 entry into the United States.
        Trooper Bell also testified that because of the seating arrangement
 within the Toyota — male driver, empty passenger seat, male occupant in
 rear driver-side seat, and female occupant in rear passenger-side seat — he
 had a concern about the trip being abnormal “[f]rom a human trafficking
 aspect.”
        About 25 to 30 seconds after the Toyota was stopped, a Volkswagen
 arrived at the checkpoint. Trooper Jones, who had been near Troopers
 Minga and Bell when the stop of the Toyota took place and had overheard
 discussion of a Venezuelan passport, talked to the occupants of the
 Volkswagen and noticed that it too had a Florida license plate, and he noted
 that the driver of the Volkswagen, Daniel Pena-Morales, also had a




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                                 No. 19-60294

                   consolidated with 19-60295, 19-60380

 Venezuelan passport. When Trooper Jones informed Trooper Bell of the
 apparent connections between the two vehicles, Trooper Bell asked the
 driver of the Toyota, Moline-Borroto, if he was traveling with anyone. After
 hesitation, Moline-Borroto responded that he was traveling with the
 individuals in the Volkswagen. Trooper Jones asked the driver of the
 Volkswagen, Pena-Morales, the same question, to which Pena-Morales
 responded that he was not traveling with anyone. According to Trooper
 Bell’s testimony at the suppression hearing, these conflicting accounts put
 him on “high alert.” Ultimately, the troopers searched the Toyota and the
 Volkswagen and found evidence of credit card skimming in both.
       A grand jury charged Burgos-Coronado, Moline-Borroto, and Castro-
 Balza — the Toyota occupants — as well as the Volkswagen occupants, with
 (1) conspiracy to commit offenses against the United States which affected
 interstate commerce; (2) possession with intent to defraud of an access
 device card encoder, software, and computer; (3) possession with intent to
 defraud of credit card skimming equipment; (4) possession with intent to
 defraud of 15 or more unauthorized access devices; and (5) using or
 attempting to use with intent to defraud more than one unauthorized access
 device to obtain goods, services, and money aggregating in excess of $1,000.
       The defendants from both vehicles moved to suppress the evidence
 based on an unconstitutional search and seizure. The district court denied
 the motions.    Pursuant to plea agreements, Burgos-Coronado, Moline-
 Borroto, and Castro-Balza entered conditional guilty pleas, reserving the
 right to appeal the denial of their motions to suppress. They were sentenced
 and entered separate notices of appeal. We granted an unopposed motion to
 consolidate these three defendants’ appeals for briefing and oral argument
 purposes. We denied the Government’s opposed motion to consolidate the
 Toyota occupants’ appeals with similar appeals filed by the Volkswagen
 occupants. On January 29, 2020, we affirmed the district court’s denial of




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                                   No. 19-60294

                    consolidated with 19-60295, 19-60380

 the motions to suppress with respect to the Volkswagen occupants. See
 United States v. Pena-Morales, 791 F. App’x 499 (5th Cir. 2020). We now
 AFFIRM in the companion cases.


                                DISCUSSION
        Our review of a denial of a motion to suppress evidence requires us to
 examine factual findings for clear error but to consider conclusions of law de
 novo; a determination about the existence of reasonable suspicion is a legal
 conclusion. United States v. Freeman, 914 F.3d 337, 341 (5th Cir. 2019). “We
 view the evidence in the light most favorable to the party prevailing below.”
 Id. We will uphold the district court’s ruling if there is any reasonable view
 of the evidence to support it. See id. at 342.
        “A checkpoint-type stop of an automobile is a seizure constrained by
 the Fourth Amendment.” United States v. Green, 293 F.3d 855, 857–58 (5th
 Cir. 2002). While suspicionless seizures are ordinarily unreasonable, and
 thus Fourth Amendment violations, certain types of automobile checkpoint
 stops have been excepted from this general rule. Id. at 858. The Supreme
 Court has suggested that such checkpoints designed to check a driver’s
 license and registration are permissible. See id. (citing Delaware v. Prouse,
 440 U.S. 648, 663 (1979)). We have explained that “it is a legitimate,
 programmatic purpose that justifies a checkpoint stop made without any
 suspicion.” United States v. Machuca-Barrera, 261 F.3d 425, 433 (5th Cir.
 2001). We examine the available evidence to determine the “primary
 purpose” of a checkpoint; “a program driven by an impermissible purpose
 may be proscribed while a program impelled by licit purposes is permitted.”
 City of Indianapolis v. Edmond, 531 U.S. 32, 47 (2000). “[T]he primary
 purpose of a checkpoint is a finding of fact reviewed for clear error.” Green,
 293 F.3d at 859.




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                                  No. 19-60294

                   consolidated with 19-60295, 19-60380

        Though the evidence of the programmatic purpose of the checkpoint
 here was scant, Trooper Bell testified that the troopers were stopping every
 car that passed to check for driver’s licenses, insurance, seat belt usage, and
 other “safety aspects.” The district court’s finding “that the purpose of the
 checkpoint” was to “check[] licenses, insurance, and seatbelts” was not
 clearly erroneous.     Seizures carried out at “general crime control”
 checkpoints are justified only if accompanied by “some quantum of
 individualized suspicion.”     Edmond, 531 U.S. at 47.        In contrast, the
 “suspicionless” checkpoint here was permissible because it served a
 legitimate programmatic purpose closely related to the necessity of ensuring
 roadway safety and “problem[s] peculiar to the dangers presented by
 vehicles.” Green, 293 F.3d at 858.
        Inquiries relating to safety, much like those at a regular non-
 checkpoint traffic stop, might include checking the driver’s license of the
 driver, determining whether there are outstanding traffic-related warrants
 against the driver, and inspecting an automobile’s registration and proof of
 insurance, i.e., inquiries “ensuring that vehicles on the road are operated
 safely and responsibly.” Rodriguez v. United States, 575 U.S. 348, 355 (2015).
 Seizures carried out pursuant to that purpose are permissible, at least at their
 inception, under the Fourth Amendment. See Green, 293 F.3d at 858.
        In the context of immigration checkpoints, we have held that “the
 permissible duration of the stop is limited to the time reasonably necessary to
 complete a brief investigation of the matter within the scope of the stop.”
 Machuca-Barrera, 261 F.3d at 433. The primary purpose of the checkpoint
 stop here was not related to immigration, but the inquiry remains the same.
 “The key is the rule that a stop may not exceed its permissible duration
 unless the officer has reasonable suspicion.” Id. at 434. This means that if
 the initial inquiries generate reasonable suspicion of other criminal activity,
 even if not related to the primary purpose of the checkpoint, the stop may be




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                                  No. 19-60294

                   consolidated with 19-60295, 19-60380

 lengthened to accommodate the new justification. Id. It is thus permissible
 for an officer to prolong a detention until the officer has dispelled the newly-
 formed suspicion. United States v. Glenn, 931 F.3d 424, 429 (5th Cir.), cert.
 denied, 140 S. Ct. 563 (2019).
        A reasonable suspicion consists of “specific and articulable facts . . .
 taken together with rational inferences from those facts” that reasonably
 suggest “criminal activity [is] afoot.” United States v. Escamilla, 852 F.3d
 474, 480–81 (5th Cir. 2017) (alteration in original) (quoting Terry v. Ohio, 392
 U.S. 1, 21, 30 (1968)). Although reasonable suspicion cannot consist simply
 of an officer’s hunch that an individual is engaged in illegal activity, only
 “some minimal level of objective justification” is required. United States v.
 Broca-Martinez, 855 F.3d 675, 678 (5th Cir. 2017) (quotation marks omitted).
 In our review, we must consider the “totality of the circumstances” that
 confronted the law enforcement officer. United States v. Arvizu, 534 U.S.
 266, 273 (2002) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)).
 Observations that by themselves are susceptible to innocent explanations,
 when taken together, can still amount to reasonable suspicion. Id. at 274–75.
 “In considering whether officers reasonably suspect someone of criminal
 activity, we defer to their law enforcement experience, recognizing that
 trained officers may draw inferences from certain facts ‘that might well elude
 an untrained person.’” Escamilla, 852 F.3d at 481 (quoting United States v.
 Cortez, 449 U.S. 411, 418 (1981)).
        Our inquiry is thus whether reasonable suspicion of criminal activity
 arose before the time reasonably necessary to satisfy the purpose of this stop
 had expired. In our inquiry, we do not expand on the arguments made by the
 defendants in the district court. The motion to suppress jointly filed by these
 defendants contains the following assertions about the events after Moline-
 Borroto stopped the Toyota at the checkpoint. “The officer then asked for
 his identification and registration of the vehicle. Mr. Moline-Borroto handed




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                                  No. 19-60294

                   consolidated with 19-60295, 19-60380

 a valid Florida’s driver license to the officer and the rental agreement for the
 car. The passengers in the vehicle also produced valid identification. At this
 point, the vehicle should have been waved through the stop and allowed to
 proceed.”
        Making the temporal point even clearer, at the suppression hearing,
 the district court judge asked counsel for each of the Toyota occupants to
 state exactly when the seizure became illegal. Counsel for Moline-Borroto
 responded that the seizure became illegal “[t]he moment that the officer sees
 the passengers with seat belts on, and that the driver has given him a license
 that seems to be valid and has said I’m going to Memphis to see my uncle, at
 that point, continued questioning I do not think was justified under the law.”
 The statement about a trip to Memphis was in response to Trooper Bell’s
 initial questioning. Counsel for Burgos-Coronado said she would “echo
 everything” in that answer, and counsel for Castro-Balza said he “would
 simply adopt the remarks” already made.
        The relevant point identified by counsel was after those in the
 backseat of the Toyota gave their identifications to Trooper Minga. Thus,
 defendants did not contest the validity of any of Trooper Minga’s earlier
 actions. At the time Trooper Bell began questioning Moline-Borroto, the
 record shows that the following facts were known to the troopers: (1) the
 time was soon after midnight, (2) the Toyota had an out-of-state license
 plate, (3) the driver of the Toyota had a temporary driver’s license, (4) that
 temporary driver’s license was also out-of-state, (5) the driver had not yet
 provided registration or proof of insurance but claimed the vehicle was a
 rental, (6) the driver was a man, the passenger seat was unoccupied, and
 there was man and woman occupying the rear seats, (7) the driver began
 translating to the passengers in Spanish, (8) the male passenger produced
 another out-of-state temporary driver’s license, and (9) the woman
 passenger produced a Venezuelan passport with no entry stamp.




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                                   No. 19-60294

                    consolidated with 19-60295, 19-60380

         We must view the evidence in the light most favorable to the party that
  prevailed below, i.e., the prosecution. United States v. Pack, 612 F.3d 341, 347
  (5th Cir. 2017). In doing so, we recognize that each of the articulated facts is
  consistent with an innocent explanation. That, though, is not enough to rule
  out reasonable suspicion. See Arvizu, 534 U.S. at 274–75. The collection of
  information was that a female passenger’s passport lacked an entry stamp,
  which might reasonably suggest that she was in the country illegally. Further,
  the abnormal seating arrangement — abnormal because the officer believed
  multiple adults do not usually choose to sit in the back when the passenger
  seat is empty — when combined with the unstamped passport and the late
  hour, might suggest that the woman was being held against her will.
         Based on these facts, the troopers had the “minimum level of
  objective justification” to support reasonable suspicion of criminal activity
  — namely, human trafficking— sufficient to justify prolonging the stop by
  inquiring further about where the Toyota occupants were going. During that
  justified extension, more facts were discovered supporting reasonable
  suspicion and, eventually, supporting a search.
         AFFIRMED.




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