     Case: 12-50353    Document: 00512307442   Page: 1   Date Filed: 07/15/2013




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

                                                                FILED
                                                               July 15, 2013

                                 No. 12-50353                  Lyle W. Cayce
                               c/w No. 12-50373                     Clerk
                               c/w No. 12-50429
                               c/w No. 12-50430
                               c/w No. 12-50524


UNITED STATES OF AMERICA,

             Plaintiff - Appellee

v.

PEDRO ENRIQUE MONTEZ-SANCHEZ, also known as Pedro Sanchez,

             Defendant - Appellant


Cons. w/No. 12-50373

UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

LUIS CARLOS RODRIGUEZ-OLIVAS, also known as Luis Olivas,

                 Defendant - Appellant


Cons. w/No. 12-50429

UNITED STATES OF AMERICA,

                  Plaintiff - Appellee
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                                   No. 12-50353
                                 c/w No. 12-50373
                                 c/w No. 12-50429
                                 c/w No. 12-50430
                                 c/w No. 12-50524


v.

JOSE GUADAL QUINTANA-SEPULVEDA, also known as Jose Sepulveda,

                      Defendant - Appellant


Cons. w/No. 12-50430

UNITED STATES OF AMERICA,

                       Plaintiff - Appellee

v.

JAVIER PRIETO GARZA, also known as Javier Garza,

                       Defendant - Appellant


Cons. w/No. 12-50524

UNITED STATES OF AMERICA,

                          Plaintiff - Appellee

v.

CHRISTOPHER MARQUEZ,

                            Defendant - Appellant



                Appeals from the United States District Court
                      for the Western District of Texas


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                                      No. 12-50353
                                    c/w No. 12-50373
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                               USDC No. 7:11-CR-385-3
                               USDC No. 7:11-CR-385-5
                               USDC No. 7:11-CR-385-4
                               USDC No. 7:11-CR-385-1
                               USDC No. 7:11-CR-385-2


Before DENNIS, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       This consolidated case involves an appeal from the district court’s denial
of defendants’ motions to suppress. For the following reasons, we AFFIRM.
                           FACTS AND PROCEEDINGS
       On November 10, 2011, Border Patrol Agents David Collier and Carlos
Ramirez were screening traffic on Interstate 20, just west of Odessa, Texas.
After stopping to assist State Trooper Oscar Valles with an unrelated traffic
stop, Collier noticed an eastbound Chevrolet Suburban with multiple male
occupants, which closely resembled a smuggling vehicle apprehended nearby a
few weeks earlier. Collier, Ramirez, and Valles (“the officers”) followed the
Suburban and pulled alongside. The officers observed that there were multiple
adult male occupants lying on top of bulky objects in the cargo area. Collier
activated his emergency lights and, after a period of time, activated his siren.
Eventually the driver pulled to the shoulder, where he traveled at a slow speed
for a period of time before coming to a momentary stop. The agents then parked
in front of the Suburban and Trooper Valles pulled his car in behind.



       *
         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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      As Collier and Ramirez got out to approach the Suburban, the driver
immediately pulled away, almost hitting both agents. Valles, Collier, and
Ramirez pursued the Suburban, calling for assistance from other law
enforcement officers.    The driver led the officers on a “very erratic, very
dangerous” chase, refusing to yield to the officers’ sirens as he left the interstate
and traveled at high speeds through residential neighborhoods and alleys,
running stop signs, driving into oncoming traffic, and nearly causing several
wrecks. The Suburban stopped briefly to allow four passengers to jump out and
flee on foot before taking off again. The driver and the remaining passengers
eventually bailed out of the moving vehicle and ran, allowing the Suburban to
collide with a telephone pole. Officer Valles approached the Suburban with his
gun drawn to ensure that there were no additional occupants, and observed that
the floor of the cargo area was covered with backpacks containing what appeared
to be (and was later confirmed as) marijuana.
      The suspects (“defendants”) were apprehended and charged by indictment
with aiding and abetting the possession with intent to distribute, and knowingly
possessing with intent to distribute, 100 kilograms or more of marijuana in
violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). The district court held a
joint suppression hearing and denied defendants’ motion to suppress the
evidence obtained as a result of the traffic stop.
      The district court held that the agents had reasonable suspicion to stop the
vehicle or, in the alternative, that the evidence was admissible under the
attenuation doctrine because the defendants’ flight and their dangerous conduct
during the subsequent chase broke the causal link with any potential illegality
arising from the initial traffic stop. Each defendant then entered a conditional


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guilty plea, reserving his right to appeal the suppression issue. The defendants
were sentenced to terms of imprisonment ranging from 30 to 70 months.
                            STANDARD OF REVIEW
      On review of the denial of a motion to suppress, a district court’s findings
of fact are reviewed for clear error and its conclusions of law are reviewed de
novo. United States v. Lopez-Moreno, 420 F.3d 420, 429 (5th Cir. 2005). In
reviewing findings of fact, this court views the evidence in the light most
favorable to the party prevailing below, id., which is the Government.
                                   DISCUSSION
      We need not consider whether the initial traffic stop was justified, because
even if it was not, we hold that the evidence was admissible under the
attenuation doctrine. “To warrant suppression . . . challenged evidence must
have been obtained ‘by exploitation of [the alleged] illegality’ rather than ‘by
means sufficiently distinguishable to be purged of the primary taint.” United
States v. Ibarra-Sanchez, 199 F.3d 753, 761 (5th Cir. 1999) (quoting Wong Sun
v. United States, 371 U.S. 471 (1963)); see also Nardone v. United States, 308
U.S. 338, 341 (1939). Independent probable cause that develops after an illegal
stop is “a critical factor attenuating the taint of the initial illegal arrest.” United
States v. Cherry, 794 F.2d 201, 206 (5th Cir. 1986).
      The defendants not only fled from police custody, but in doing so almost
ran down two Border Patrol agents who were standing in the way of the car.
The ensuing chase resulted in the violation of several traffic laws and put both
the officers and the public in danger. Furthermore, the defendants bailed out
of the still-moving vehicle at various times, allowing the Suburban to collide
with a telephone pole while Trooper Valles was close behind. By the time the


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Suburban collided with the pole, it was unclear whether there was anyone
remaining in the vehicle and whether anyone remaining was armed. Trooper
Valles approached the vehicle (whose door was ajar) in an attempt to secure the
surroundings which led to observation of the marijuana. This type of flight from
custody, particularly when combined with other illegal activities and when it
results in independent probable cause for arrest, is sufficient to demonstrate
attenuation. See United States v. Nooks, 446 F.2d 1283, 1286-88 (5th Cir. 1971);
Ibarra-Sanchez, 199 F.3d at 761-62.
      In Nooks, we found attenuation on facts substantially similar to those at
issue here. Although the appellant argued that his initial stop by the police was
without sufficient justification, this court noted that:
      Much, however, intervened between that time and the search of the
      automobile, including the following: . . . Brown precipitately and
      forcibly attempted to escape from [police] custody and fled driving
      at speeds up to 115 m.p.h. . . . During that flight, he shot directly at
      Sheriff Dye . . . [and t]he presence of two other men in the trunk of
      the automobile was unmistakably revealed both visually and
      audibly.

446 F.2d at 1287-88. This court held that:

      Before the trunk of the automobile was opened it had become
      academic whether Brown’s original arrest was lawful or not.
      Brown’s description and his precipitate flight had furnished
      additional evidence to show probable cause for his arrest and for the
      search of the automobile. Further, Brown had committed another
      crime by shooting directly at Sheriff Dye. Under the circumstances
      known at the time of the actual search of the automobile, there can
      be no doubt as to the validity of that search. The nexus between that
      search and Brown’s original arrest had been attenuated. The fruits
      of that search cannot realistically be treated as fruits of Brown’s
      original arrest.

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Id. at 1288.
      The same rationale can be applied here. Due to the escape from police
custody, the reckless behavior exhibited by defendants toward police officers and
citizens, and the fact that the marijuana was readily apparent from Trooper
Valles’s attempt to secure the scene, we hold that the nexus between the search
and the original traffic stop was sufficiently attenuated that the fruits of the
search cannot be treated as fruits of the original stop. See United States v.
Sheppard, 901 F.2d 1230, 1235-36 (5th Cir. 1990) (collecting cases).
                                CONCLUSION
      We AFFIRM the district court’s denial of defendants’ motions to suppress.




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