     Case: 16-40733      Document: 00514109798         Page: 1    Date Filed: 08/09/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 16-40733                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                  August 9, 2017
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

CARLOS GONZALES-GOMEZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:15-CR-675


Before REAVLEY, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
       Carlos Gonzales-Gomez was convicted of possessing more than 100
kilograms of marijuana with intent to distribute and conspiracy to do the same.
He had asked that the trial court suppress evidence of statements he made
following his detention at an inland checkpoint operated by the United States
Customs and Border Patrol.            His appeal asserts that the agents at the
checkpoint never developed reasonable suspicion of drug trafficking that


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                No. 16-40733
supported extending the stop beyond its limited initial purpose. He also
contends that statements he made during this time should not have been
admitted because his waiver of Miranda rights was involuntary.
                                      I.
      The drug charges against Gonzales and co-defendant Alan Osvaldo
Esquivel arose from a vehicle stop on Highway 4 east of Brownsville at the
Boca Chica immigration checkpoint. The checkpoint consists of a trailer and a
secondary inspection area under a canopy.         The district court did not
accompany its ruling with findings of fact; we thus construe the evidence about
what happened during the stop in the light most favorable to the government
as the prevailing party on the motion to suppress. See United States v. Macias,
658 F.3d 509, 517 (5th Cir. 2011).
      Border Patrol agents Raul Salazar, Jr. and Omar Soto were on duty the
afternoon at issue when a black Ford pickup truck stopped at the primary
inspection area. There were five occupants in the truck: Gonzales in the
driver’s seat; his wife in the passenger seat; and, in the backseat, Gonzales’s
step-daughter, her minor child, and Esquivel.
      Salazar questioned the occupants of the vehicle and referred them to the
secondary inspection area. He decided to refer the truck to the secondary
inspection area because the three individuals in the backseat (Esquivel, the
step-daughter, and the infant) did not provide identification (it turns out all
are citizens of the United States). Soto also thought Esquivel “appeared to be
nervous by stuttering and avoiding eye contact while answering immigration
questions regarding status.”
      At the secondary inspection area, Soto recognized Esquivel from be-on-
the-lookout (BOLO) alerts regarding marijuana trafficking and reminded
Salazar about them. Also at the secondary inspection area, Salazar questioned
Gonzales about his activities that day. Gonzales told Salazar that he and
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                                       No. 16-40733
Esquivel had been driving a septic tanker truck looking for work, but the
tanker truck broke down so he called his wife to pick them up.
       That tanker truck was significant to two other agents who soon 1 arrived
at the secondary inspection area. Agents Jeff Davidson and Chris Garcia knew
that within the previous hour an abandoned tanker truck registered to
Esquivel had been located near fifty-three bundles of marijuana.                        Those
bundles were first observed by a Border Patrol helicopter on patrol east of
Brownsville. From the helicopter, an agent observed people crossing the river
from the United States to Mexico in a boat. On the U.S. side of the river, there
was a fenced property at the end of a dirt road approximately a quarter mile
off Highway 4, which runs east from Brownsville. The agent saw a number of
bundles left on that property and suspected narcotics smuggling.
       Agents on the ground investigated and confirmed the suspicion: the
bundles contained marijuana weighing a total of over 500 kilograms. The
marijuana was wrapped in single bundles without handles, unlike the usual
packaging of three to five bundles wrapped together with straps or ropes for
carrying like a backpack. An agent surmised that the single bundles were
intended to be concealed in a vehicle.
       An agent on the ground then noticed a septic or water tank truck parked
approximately one quarter of a mile away at the intersection of Highway 4 and
the dirt road leading to the property where the marijuana was found. He


       1 The record is underdeveloped and consequently hazy as to the amount of time it took
these agents to arrive. This is likely because Gonzales argues only that Davidson and Garcia
did not have reasonable suspicion that he or Esquivel had engaged in drug trafficking. At
the suppression hearing and on appeal, Gonzales did not argue that the initial phase of the
detention (before Davidson and Garcia arrived) was prolonged beyond the time permissible
for a suspicionless stop at an inland immigration checkpoint. See generally United States v.
Martinez-Fuerte, 428 U.S. 543 (1976); United States v. Portillo-Aguirre, 311 F.3d 647 (5th
Cir. 2002). As for this question of the time it took Davidson and Garcia to arrive, the evidence
viewed in the light most favorable to the government shows that Davidson and Garcia arrived
about five minutes after the vehicle was at the checkpoint.
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investigated and discovered that the truck’s motor was still hot but the driver
was missing. The truck looked old and out of place. The tank portion of the
truck had an opening without a cover that revealed a dry, rusted interior which
did not look like it had been used recently. The agent surmised that the
marijuana bundles would fit in the tank and that the truck was intended to be
the transportation vehicle. Another agent determined by radio that the truck
was registered to Esquivel.
      Border Patrol intelligence agent Jacob Gamboa was monitoring radio
traffic during the marijuana seizure and recognized Esquivel’s name because
he had previously issued two BOLOs associating Esquivel with marijuana
trafficking. Gamboa also learned from radio traffic that Esquivel had been
stopped at an immigration checkpoint on Highway 4 at about 2:45 p.m.
Gamboa directed Davidson and Garcia to the checkpoint.
      Upon arrival, Davidson and Garcia “took over” from Salazar and Soto.
Davidson spoke with Esquivel and then Gonzales for approximately ten
minutes each. During questioning, Esquivel could not provide details about
the work he and Gonzales planned to do with the tanker truck, “began
stammering and became visibly nervous,” and at one point “became highly
agitated” and “began rambling incoherently.”     Davidson also thought that
Gonzales was nervous, that he could not give much detail about the work he
intended to do with the tanker truck, and that other details he provided were
inconsistent with Esquivel’s statements. For example, Gonzales said Esquivel
had hired him to drive the tanker truck and that they had been looking for
water to pump. But Gonzales could not provide the name of the friend who
supposedly introduced them, the amount of money he was being paid, or any
details about how to operate a water pump. Davidson decided to detain them
both “for further questioning.” Gonzales and Esquivel were then told that they
“were not under arrest, but they were being detained” and both were given
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                                  No. 16-40733
Miranda warnings.      Both were transported to a Border Patrol station in
Brownsville.
      Davidson and Garcia then went to investigate the tanker truck before
returning to the border patrol station in Brownsville to assist with further
investigation. Gonzales signed a Miranda waiver at 6:52 p.m. Davidson then
questioned him again, asking about the same topics they had discussed at the
checkpoint. Gonzales essentially responded the same way. At some point
Gonzalez was formally arrested on drug trafficking charges.
      The district court denied Gonzales’s motion to suppress without stating
any reasons. Esquivel, who had confessed the second day he was detained at
the border patrol station, pleaded guilty and testified at Gonzales’s trial. A
jury convicted Gonzales on both counts.
                                       II.
      Gonzales denies that the agents acquired reasonable suspicion of drug
trafficking to warrant extension of the initial checkpoint stop. An agent at an
immigration stop “may investigate non-immigration matters beyond the
permissible length of the immigration stop if and only if the initial, lawful stop
creates reasonable suspicion warranting further investigation.” United States
v. Machuca-Barrera, 261 F.3d 425, 434 (5th Cir. 2001).
      Gonzales belittles what he calls the government’s “diamond studded” list
of facts that it believes allowed the agents to reasonably suspect that he was
involved in drug trafficking. Evidence sufficient to give an officer reasonable
suspicion of a crime need not consist of diamonds: semi-precious stones will
suffice. See Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir. 2000)
(explaining that the reasonable suspicion standard is less demanding than the
probable cause standard). The following gems were in the hands of the agents
at the checkpoint when Davidson and Garcia arrived. Fifty-three abandoned
bundles of marijuana had been found a quarter of a mile from a suspicious
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                                 No. 16-40733
tanker truck. The truck was registered to Esquivel, who had been the subject
of two drug-trafficking BOLOs issued earlier that year—one just weeks before
the stop in question—based on information associating Esquivel with
backpackers carrying illegal drugs across the border. And Gonzales admitted
that he had been driving a septic truck that had broken down when he called
his wife to bring the pickup truck to retrieve them. These facts were sufficient
to establish reasonable suspicion of criminal activity by the time Davidson and
Garcia arrived at the checkpoint with this information. Cf. United States v.
Jacquinot, 258 F.3d 423, 426–427 (5th Cir. 2001). The inconsistent and evasive
answers to the questions the agents then asked added to that suspicion.
      Gonzales also contends that when he signed the written waiver of his
Miranda rights at the border patrol station early in the evening he did so
involuntarily as a consequence of his prolonged detention, especially the earlier
time he spent at the checkpoint under the Texas summer sun. The record,
however, does not support Gonzales’s account. He describes an “ordeal of forty
or forty-five minutes in the hot, humid Texas air.” But the record shows that
he was under a canopy at the checkpoint with access to a restroom. And the
timeline read in favor of the prevailing party shows a briefer detention outside.
      Even on his account of the facts, Gonzales does not show how any duress
from the heat rendered involuntary the waiver he signed roughly three hours
later when his conduct was by all accounts cooperative. The waiver was signed,
which is “usually strong proof of the validity of that waiver.” North Carolina
v. Butler, 441 U.S. 369, 373 (1979). Gonzales had earlier been advised of his
Miranda rights.      There is no evidence of police coercion, which is a key
consideration in whether a waiver is involuntary. United States v. Cardenas,
410 F.3d 287, 293 (5th Cir. 2005) (citing Colorado v. Connelly, 479 U.S. 157,
170 (1986)). Indeed, Gonzales stuck by his story that he was engaged in
legitimate work and provided few details which is at odds with a conclusion
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                                  No. 16-40733
that police pressure had overcome his free will. United States v. Melanson, 691
F.2d 579, 589 (1st Cir. 1981). And the interrogation was not extensive or
pointed.   Finally, Gonzalez’s allegations about his continued detention
overnight have no bearing on the voluntariness of a waiver and subsequent
statements that occurred earlier in time.
      Nor does it matter if Gonzales thought he was being questioned about
transporting immigrants rather than drugs. Michigan v. Mosley, 423 U.S. 96
(1975), on which he relies, was a case in which the defendant had invoked his
right to remain silent for questions about a robbery and was later questioned,
after again being Mirandized and at that time waiving his rights, about a
murder. Id. at 104. The Supreme Court allowed the statement the defendant
made because that the defendant waived his rights after receiving a second
warning. Mosley does not stand for the proposition that a defendant must be
informed about the object of the investigation before waiving his Miranda
rights. Indeed, we have held that even affirmative misrepresentations by the
interrogator—and here we have at most an omission in failing to notify
Gonzales that drugs were the focus of the agent’s questions—do not render
Miranda waiver involuntary unless the “deceit . . . deprives the suspect of
knowledge essential to his ability to understand the nature of his rights and
the consequences of abandoning them.” Soffar v. Cockrell, 300 F.3d 588, 596
(5th Cir. 2002) (en banc) (quoting Moran v. Burbine, 475 U.S 412, 424 (1986));
see also United States v. Tapp, 812 F.2d 177, 179 (5th Cir. 1987) (finding waiver
voluntary even though agent had incorrectly stated that the defendant was not
a target of the investigation).     On top of all this, the factual premise of
Gonzales’s argument is suspect. By the time he signed the waiver at the
station, a DEA agent was present along with border patrol, and Davidson
testified that the DEA agent told Gonzales he was being investigated for
narcotics trafficking.
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                              No. 16-40733
     The district court did not err in finding Gonzales’s Miranda waiver
voluntary.
                                  ***
     The judgment of the district court is AFFIRMED.




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