     Case: 18-40178   Document: 00514840719   Page: 1   Date Filed: 02/19/2019




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

                                                                       FILED
                              No. 18-40178                      February 19, 2019
                            Summary Calendar
                                                                  Lyle W. Cayce
                                                                       Clerk
UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

JESELL LYNN HINOJOSA,

                                         Defendant-Appellant

**********************************************************************
Consolidated with 18-40312

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

JOSE AMANDO GARCIA-GONZALEZ, also known as Jose Armando Garcia-
Gonzales,

                                         Defendant-Appellant



                Appeals from the United States District Court
                     for the Southern District of Texas
                          USDC No. 5:17-CR-507-2
                          USDC No. 5:17-CR-507-1
     Case: 18-40178      Document: 00514840719         Page: 2    Date Filed: 02/19/2019


                                     No. 18-40178
                                   c/w No. 18-40312
Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Jesell Lynn Hinojosa and Jose Amando Garcia-Gonzalez entered
conditional guilty pleas to conspiracy to transport an undocumented alien
within the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (v)(I),
reserving the right to appeal the district court’s denial of their motions to
suppress the evidence of alien smuggling discovered during an investigatory
vehicle stop initiated by a United States Border Patrol agent. “When reviewing
a denial of a motion to suppress evidence, this Court reviews factual findings
for clear error and the ultimate constitutionality of law enforcement action
de novo.” United States v. Robinson, 741 F.3d 588, 594 (5th Cir. 2014).
       In the context of a roving border patrol, agents “may detain vehicles for
investigation only if they are aware of specific, articulable facts, together with
rational inferences from those facts, that reasonably warrant suspicion that
the vehicle is involved in illegal activities,” such as transporting undocumented
aliens. United States v. Garza, 727 F.3d 436, 440 (5th Cir. 2013) (internal
quotation marks and citation omitted). The factors to be considered include (1)
the area’s proximity to the border; (2) the characteristics of the area; (3) usual
traffic patterns; (4) the agents’ experience in detecting illegal activity; (5) the
driver’s behavior; (6) particular characteristics of the vehicle; (7) information
about recent illegal trafficking of aliens or narcotics in the area; and (8) the
number of passengers in the vehicle and their appearance and behavior.
United States v. Brignoni-Ponce, 422 U.S. 873, 884-85 (1975).




       * 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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    Case: 18-40178     Document: 00514840719    Page: 3     Date Filed: 02/19/2019


                                 No. 18-40178
                               c/w No. 18-40312
      The first factor, proximity to the border, is a “paramount factor.” Garza,
727 F.3d at 441 (internal quotation marks and citations omitted). A vehicle’s
location within 50 miles of the border creates “a stand-alone inference that the
vehicle’s journey originated at the border.” United States v. Soto, 649 F.3d 406,
409 (5th Cir. 2011).     In this case, the agent first observed the vehicle
approximately three miles north of the border.              Further, the area’s
characteristics and the agent’s information contributed to reasonable suspicion
because the agent testified that he knew Highway 83 was a common route for
smuggling. See United States v. Hernandez, 477 F.3d 210, 211-12 (5th Cir.
2007). The agent’s experience also contributed to reasonable suspicion in this
case because he was a nine-year veteran of the Border Patrol whose experience
consisted almost entirely of patrols of Highway 83.         See United States v.
Ramirez, 839 F.3d 437, 440 (5th Cir. 2016); United States v. Chavez-Chavez,
205 F.3d 145, 149 (5th Cir. 2000).
      The district court determined that the driver’s behavior, including
looking at the agent in the rearview mirror, did not contribute to reasonable
suspicion. See United States v. Moreno-Chaparro, 180 F.3d 629, 632 (5th Cir.
1998). Further, the stiff body language of the passengers did not contribute to
reasonable suspicion. See United States v. Rangel-Portillo, 586 F.3d 376, 381
(5th Cir. 2009). However, the driver’s unusually low speeds contributed to
reasonable suspicion. See United States v. Zapata-Ibarra, 212 F.3d 877, 883-
84 (5th Cir. 2000). The court’s factual finding that the vehicle was driving 60
miles per hour in a 75 mile-per-hour zone is not clearly erroneous when viewed
with deference to the district court and in favor of the prevailing party. See
United States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010).
      Finally, the characteristics of the vehicle—dirty, bearing handprints on
the trunk, and laden in the back—contributed to reasonable suspicion. See



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    Case: 18-40178    Document: 00514840719     Page: 4   Date Filed: 02/19/2019


                                 No. 18-40178
                               c/w No. 18-40312
United States v. Orozco, 191 F.3d 578, 582 (5th Cir. 1999). To the extent that
Hinojosa challenges the district court’s factual findings on this point, the
clearly erroneous standard is particularly deferential where, as herein, “denial
of a suppression motion is based on live oral testimony.” United States v.
Gibbs, 421 F.3d 352, 357 (5th Cir. 2005) (internal quotation marks and citation
omitted). Moreover, as the finder of fact, the district court was “free to choose
among reasonable constructions of the evidence.” United States v. Alaniz-
Alaniz, 38 F.3d 788, 792 (5th Cir. 1994) (internal quotation marks and citation
omitted). Further, while an innocent citizen may also drive a dirty car with
handprints on the trunk, the characteristics of the vehicle, when combined
with the heavy trunk area and the other factors observed by the agent,
provided a “composite picture” sufficient to create reasonable suspicion in his
mind. United States v. Jacquinot, 258 F.3d 423, 427-28 (5th Cir. 2001).
      Accordingly, the district court’s denial of the motions to suppress is
AFFIRMED.




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