                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
                 UNITED STATES COURT OF APPEALS           September 18, 2003
                      For the Fifth Circuit
                                                       Charles R. Fulbruge III
                                                               Clerk
                          No. 02-50694


                    UNITED STATES OF AMERICA

                                                 Plaintiff-Appellee

                               v.

                  JOSE RAMON DOMINGUEZ-SANCHEZ

                                               Defendant-Appellant


                          No. 02-50746


                    UNITED STATES OF AMERICA

                                                 Plaintiff-Appellee

                               v.

                     RICARDO MARTINEZ-BORJON

                                               Defendant-Appellant.

          Appeals from the United States District Court
             For the Western District of Texas, Pecos
                        (P-01-CR-259-2-F)


Before BARKSDALE, DeMOSS and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Jose Ramon Dominguez-Sanchez and Ricardo Martinez-Borjon were



     *
        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that this opinion should not be published and is not precedent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.
traveling on Highway 385 when they were stopped by border patrol

agents.   Sanchez and Borjon were arrested after two open sacks

containing bundles of marijuana were found in the back seat of

their vehicle.     Sanchez and Borjon filed motions to suppress the

evidence seized and a statement made by one of them at the time of

the   stop,   arguing       that   there       were    no   existing    articulable

facts supporting a reasonable suspicion that justified the stop of

their   vehicle.        A    magistrate        judge    heard   the    motions   and

recommended that they be denied. The district court then conducted

de novo review at a hearing and the motions to suppress were

denied.   Sanchez and Borjon entered conditional guilty pleas to

possession 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),

but reserved their right to appeal the district court’s ruling

denying their motions to suppress.              We affirm the district court’s

denial of the motions to suppress.

                                       I.

      The following evidence was found by the magistrate judge and

district court concerning the stop.                   Border Patrol Agent Harris

Clanton, who had over 23 years experience at the Alpine Station,

testified that he had been involved in hundreds of cases involving

illegal aliens and drug smuggling.               He explained that the Alpine

Station is responsible for patrolling Highway 385 that runs to and

from Big Bend National Park.           He stated that there are numerous


                                           2
places in the southern border of the Alpine patrol area where drugs

or illegal aliens can be smuggled across the river without being

detected.

     Clanton testified that Highways 385 and 118 are continually

used to transport illegal aliens and contraband north into other

areas of the state.          He testified that there are permanently

established checkpoints on both highways, but that during the prior

year, the checkpoint at Highway 118 had been open 24 hours a day,

five or six days a week, while the checkpoint at Highway 385 had

been open only 12 to 14 hours a day.                    Clanton testified that

smugglers usually know if a particular checkpoint is open or closed

and will go through when they know it is closed.

     On the night of the arrest, Clanton and another agent, George

Lopez, were observing traffic on Highway 385 from inside the closed

checkpoint.1      Clanton testified that he was familiar with the

vehicles of the people who lived in the area and reported that the

locals generally do not drive on the road in the middle of the

night.      He   testified   that   it       is   a   two-hour   drive   from   the

headquarters at Big Bend Park to the checkpoint on Highway 385 and

that tourists only occasionally leave the park and drive the

highway late at night.

     The    Marfa   Sector   Communications           Officer    notified   Clanton

     1
       Although the agents were present, the checkpoint was
apparently closed because of a government policy or regulation
that requires three agents to be present before a checkpoint can
be open.

                                         3
at 1:17 A.M. that several sensors had been activated indicating

that    a    northbound       vehicle    was    approaching     their     checkpoint.

Sensors are electronic devices which detect vehicles as they travel

the roadway.       Clanton reported that one of the activated sensors

was located within fifty miles of the border.                   Based on the time

span between sensor hits and his experience, Clanton believed that

the same vehicle activated the different sensors.

       Clanton and Agent Lopez stepped outside the checkpoint to

a lighted area and were standing there as Sanchez and Borjon drove

by in a 1998 Dodge Durango.              The vehicle was not familiar to the

agents,      and   it   was    not   carrying     a   trailer   or   anything      that

indicated that it was a tourist vehicle.               Clanton testified that in

his experience sports utility vehicles, like the Durango, had been

used to smuggle illegal aliens.

       As the vehicle drove past, the passenger looked at the agents

and continued turning his head back “like he was exceptionally

interested in the fact that [the agents] were there,” according to

Clanton.      The agents decided to follow the vehicle to obtain its

registration.       Clanton testified that he stayed close behind the

vehicle while he was getting its license number, and the vehicle

continued to travel at 70 m.p.h. even through an “S” curve in the

road.       After he obtained the license number and backed away from

the vehicle,       the    Durango       decelerated    to   about    45   m.p.h.   and

continued at that speed for about a mile and a half.                       When they

got to Marathon, the vehicle turned right onto Highway 90 and

                                            4
headed east toward Sanderson.

     Clanton   received   a   communication   that   the   vehicle   was

registered to a woman in Midland, Texas, which was known to be

a “hub for aliens and narcotics being transported further out of

[the] area,” according to Clanton.     Clanton found it strange that

the vehicle did not take the turn-off that would have been the most

direct route to Midland, and decided to make an immigration check.

     Clanton caught up with the vehicle and activated his overhead

lights, and the vehicle pulled over to the right-hand side of the

road.   As he approached the vehicle, he could not see inside

because the Durango had tinted windows.       He shined his flashlight

into the window and could see something was blocking the view from

the rear of the vehicle.      As Clanton moved closer, he could see

that there were two burlap bags on the back seat, and he could see

taped rolled bundles through the openings in the bags.      He realized

that it was marijuana and approached the driver.

     Clanton asked the occupants what they were doing with the

marijuana and the driver did not respond, but the passenger said it

was “weed.”    The agents placed both individuals under arrest and

brought the vehicle and substance back to the Alpine Station.        The

substance field tested positive for marijuana. The total weight of

the marijuana seized was 295.12 pounds.

     Clanton testified that he made the stop because of several

factors.   He believed that the sensor hits showed that the vehicle

came from the international border area. Clanton testified that it

                                   5
was not unusual for a passenger to look at the agents as the

passenger’s     vehicle   passed     but     he       found    the   duration    of    the

passenger’s look in this circumstance to be unusual.                      Based on the

sensors and     the    passenger’s     conduct          he    decided    to   check    the

vehicle’s registration.         Clanton decided to make the stop after he

learned that the vehicle was registered in Midland, and the vehicle

did not make the turn that was the most direct route to that city.

Clanton testified that the stop was also made based on the time of

night, the notoriety of the road for illegal activity, and the

behavior   of   the    driver    and    passenger.             Clanton    stated      that

generally about half of his nighttime stops result in arrests.

Clanton also testified that sports utility vehicles are often used

by tourists but also by smugglers and this vehicle did not appear

to be a tourist vehicle.

                                        II.

      The magistrate judge considered Agent Clanton’s substantial

experience detecting illegal alien and drug activity, the sensor

alerts indicating that the vehicle originated its journey at the

border and was traveling north on Highway 385, the time of night,

the   notoriety   of    the   highway      as     a    drug    smuggling      path,    the

unfamiliarity of the vehicle to the agent, the behavior of the

driver and passenger, and the vehicle’s route, and found these

factors gave the agents reasonable suspicion to make the stop. The

magistrate judge determined that the presence of contraband in



                                         6
plain view and the passenger’s statement gave the officers probable

cause to arrest the defendants and seize the contraband. The

magistrate judge recommended that the motions to suppress be

denied.

     The defendants filed objections to the recommendation.        The

district court determined that the defendants had not presented any

evidence contradicting Agent Clanton’s testimony and that the

magistrate judge’s finding that the agent was credible was not

contradicted by anything in the record.      The district court relied

on the evidence of the vehicle’s traveling within fifty miles of

the border and the other factors cited by the magistrate judge and

determined that, based on the totality of the circumstances, there

were sufficient facts to justify a reasonable suspicion to make the

stop.   The district court denied the motions to suppress.

     Sanchez was sentenced to a term of imprisonment of 70 months,

to be followed by a four-year term of probation.            Borjon was

sentenced to a term of imprisonment of 60 months, to be followed by

a four-year term of supervised release.      After sentencing, Sanchez

filed a timely notice of appeal.       Borjon filed a motion to file an

out of time appeal, and the district court granted the motion.

     On appeal Sanchez argues that a reasonable suspicion for an

investigatory stop cannot be based on an unparticularized “hunch”

and that there were no articulable facts sufficient to justify the

stop. Borjon argues that the factors relied upon by the agent were

not specific to their vehicle and would allow agents to stop every

                                   7
vehicle traveling that road that the agent did not recognize as a

local vehicle.      The government argues that the totality of the

circumstances gave rise to articulable facts justifying the stop

and that the district court was correct in not granting the motions

to suppress.

                                     III.

     When    reviewing     the   denial       of   a    motion   to   suppress,    the

district court’s factual findings are reviewed for clear error, and

its legal conclusions, including whether there was a reasonable

suspicion for the stop, are reviewed de novo.                     United States v.

Jacquinot,    258   F.3d   423,    427    (5th         Cir.   2001)   (per   curiam).

A factual finding is not clearly erroneous if it is plausible in

light of the record as a whole.               Id.      The evidence presented at

a suppression hearing must be viewed in the light most favorable to

the prevailing party.       Id. (quotation and citation omitted).

     “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.”                     Id.   The

Government has the burden to prove by a preponderance of the

evidence that the investigatory stop was constitutional.                      United

States v. Guerrero-Barajas, 240 F.3d 428, 432 (5th Cir. 2001).

     As both the magistrate judge and district court noted, several



                                          8
factors may be considered in determining whether the agent had

reasonable suspicion justifying the stop.                      Id.        These factors

include, but are not limited to, 1) the character of the area in

which the vehicle is observed; 2) its proximity to the border;

3) the patterns of traffic on that road; 4) the agent’s previous

experience     with    alien      smuggling;     5)    information        about    recent

crossings or other illegal activity in that area; 6) the driver’s

behavior, such as erratic driving; 7) the characteristics of the

vehicle involved and whether it appears to be heavily loaded;

8) the number of passengers and their behavior; and 9) whether the

occupants have characteristics of persons living outside the United

States.      Id. at 432-33; United States v. Brignoni-Ponce, 422 U.S.

873, 884-85 (1975).             No single factor determines the issue; the

case must be examined based on the totality of the circumstances

known   to    the    agent      when   the   stop     was   made    and    the    agent’s

experience in evaluating such circumstances.                       Guerrero-Barajas,

240 F.3d at 433.       In the present case, although not all the factors

indicate that the officers had reasonable suspicion to stop Sanchez

and   Borjon,       most   of    the   factors      indicate       the    agents    could

articulate facts and rational inferences based on those facts that

lead to the constitutionally permissible stop of Sanchez and

Borjon.

      First and importantly, whether the agents had reason to

believe that the vehicle in question has recently crossed the

border is one of the vital elements in determining whether there

                                             9
was reasonable suspicion for the stop. Jacquinot, 258 F.3d at 428.

If the vehicle is traveling more than fifty miles from the border,

it is viewed as being too far away to raise an inference that it

originated its journey there.            Id.     If the vehicle is first

observed within fifty miles of the border, but stopped at a further

point, the proximity element is satisfied.             Id.   The activation of

sensors by the vehicle near the border supports a finding that the

vehicle   crossed   over   the   border.        Id.     Sensor   hits   may    be

supportive of reasonable suspicion in cases where the type of

vehicle stopped was the same as the vehicle detected by the sensor.

United States v. Inocencio, 40 F.3d 716, 723 (5th Cir. 1994).

     Agent Clanton was not at liberty to testify as to the precise

location of the sensors that were activated but could testify that

some of the sensors were within fifty miles of the border.                Based

on the timing of the sensor alerts and that fact that the Durango

was the only vehicle seen traveling the road, it can be inferred

that Sanchez and Borjon came from the border.            See United States v.

Aguirre-Valenzuela, 700 F.2d 161, 163 (5th Cir. 1983) (per curiam)

(finding reasonable suspicion where “the timing of the sensor

alerts and the arrival of the Appellant’s car at the agents’

location certainly were coincident enough to allow a reasonable

inference that this was the car which had hit the sensors”).

     Second   and   also   significant     in   this    case,    the   level   of

experience of the agent should be a factor in determining whether

reasonable suspicion exists.        United States v. Aldaco, 168 F.3d

                                    10
148, 151 (5th Cir. 1999).         Agent Clanton had twenty-three years of

experience and had been assigned to the Alpine Station the entire

time.   Agent George Lopez, who was working with him, had less than

a year of experience.        Clanton’s substantial experience weighs in

favor of the reasonable suspicion finding.

      Additionally, other factors may support reasonable suspicion.

A driver’s behavior may support a reasonable suspicion, although

noticeable deceleration does may not indicate much.             United States

v. Jones, 149 F.3d 364, 370 (5th Cir. 1998); United States v. Diaz,

977 F.2d     163,   165    (5th   Cir.   1992).   In   this    case   both   the

magistrate judge and district court found that the driver acted

unusual.     A passenger’s behavior in looking at an officer can be

given only little weight.            United States v. Moreno-Chapparro,

180   F.3d   629,   632    (5th   Cir.   1998).   Here   the    lower   courts

emphasized the extended look the passenger gave the agents.                  The

road’s reputation as a smuggling route adds to the reasonableness

of the suspicion.         Jacquinot, 258 F.3d at 429.    The stop occurred

on a known smuggling route around 2:00 A.M. and at a time when the

checkpoint on Highway 118 was known to be open.           See United States

v. Villalobos, 161 F.3d 285, 289 (5th Cir. 1998) (recognizing that

the time of day that the vehicle is traveling “is a permissible

consideration”).      Further, the record also indicates that during

the two week time period before this stop only 3 or 4 vehicles had

passed this checkpoint at this time of the day.           Agent Clanton did

not recognize the Durango as belonging to a local and the Durango,

                                         11
unlike the usual tourist vehicles, was not pulling any recreational

equipment.    And Clanton testified that he had previously been

involved in cases in which the type of vehicle involved in this

case had been used to transport aliens.

     Therefore, based on the totality of the circumstances, both

the magistrate judge and district court found that reasonable

suspicion existed to make the stop and we agree.

                                 IV.

     Having   carefully   reviewed    the   record   of   this   case,   the

parties’ respective briefing and arguments, for the reasons set

forth above and essentially for the reasons given by both the

magistrate judge and district court, the denial of Sanchez’s and

Borjon’s motions to suppress is affirmed.

AFFIRMED.




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