Petition — Petty v. United States

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

JIMMY DELTON PETTY and

JOE MARTIN NUNEZ-QUINTELA,

Petitioners,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI FROM

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

WARREN HEAGY

217 West Third Street

Odessa, Texas 79761

LARRY BARBER, JR.

National Bank of

Odessa Building

Odessa, Texas 79761

ATTORNEYS FOR

PETITIONER

December 4, 1979

TABLE OF CONTENTS

List of Authorities---------- iv

Opinions Below--------------- 2

Jurisdiction----------------- 3

Questions Presented---------- 3

1. Whether a roving

border patrolman can stop

a motorist that chooses

to deviate from our

Federal highway systems

and travel upon a road-

way, albeit rough and

lonely, merely because

of the nature of the

roadway itself, without

the officer having ob-

served any specific

‘articulable fact which

would lead to a conclu-

sion that the motorist

was engaged in the

smuggling of illegal

aliens or any other type

of illegal activity.------

Statutes Involved------------ 5

Statement of the Case-------- 6

atts

TABLE OF CONTENTS, Continued

Reasons for Granting

the Writ-- ----------------

A. Importance of the

Question------------------

B. Opinion Below Conflicts

with Applicable Decisions

of the Supreme Court------

C. Conflict with Opinions of

Other Circuits------------

Conclusion----<-----+--++-- +"

-iii-

31

41

LIST OF AUTHORITIES

Cases:

Adams v. Williams, 407 U.S.

143. 92 5.cCt. 1921, 32

L.Ed.2d 612 (1972)--------

Almeida-Sanchez v. United

States, 413 U.S. 266, 270,

93 °S.ct. 2535, 37 L.Ed.2d

596 (1973) ---r-ecrererrr-

Boyd v. United stators ta

Brown v. State of Texas,

oes , 99 S.Ct.

, 61 L-Ed.2d 357

Camara v. Municipal Court,

i ‘ as

1727, 18 L.Ed.2d 930

(1967) --ecceeseosoerrer-=

Delaware v. Prouse, U.S.

59 L.Ed.2d 660,

59 °5.Ct. 1391, 1396-9

(1979) ----- nnn nnn nnn

Sibron v. New York, 392 U.S.

TOTS, 88 S.Ct.

, “GE. Beer;

1907, 20 L.Ed.2d 917

(1968) -----------------=-

-iv-

Page

28, 29

17

et

26, 28,

30

33

Cases, Continued

Terry v. Ohio, 392 U.S. l,

3 S.Ct. 1868, 20 L.Ed.

2d 889 (1968)------------

United States v. Brignoni-

Ponce, 422 U.S B93 95

S(t. 2574, 45 L.Ed.2d

607 (1975)---------------

United States v. Carrizoza-

Gaxiola,

(Ninth Circuit, 1975)----

United States v. Cortez,

~~ 595 F.2d 505 (Ninth

Circuit, 1979)-----------

United States v. Frisbee,

550 F.2d 339 (1977)

United States v. Martinez-

uerte,

6 S.Ct. 3074, 49 L..

Ed.2d 1116 (1976)--------

Rules, Statutes and

Miscellaneous:

28 U.8.C. $1254(UL)-<--sre%~-

United States Constitution,

Amendment IV-------------

-V-

Page

22

22, 221 2%

25, 29; 3

35, 36

32,33, 4,

pS me 4 RE

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

JIMMY DELTON PETTY and

JOE MARTIN NUNEZ-QUINTELA,

Petitioners,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI FROM

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Comes now Petitioners, Jimmy Delton

Petty and Joe Martin Nunez-Quintela, and

respectfully pray that the Honorable

Supreme Court of the United States grant

to Petitioners a Writ of Certiorari and

review the Judgment and Opinion of the

United States Court of Appeals for the

Fifth Circuit, reverse the lower Court's

Opinion and render Judgment in accord-

ance with the Judgment of the Trial

Court in this cause.

OPINIONS BELOW

Judge William Sessions, District

Judge for the United States District

Court, Western District of Texas, Pecos

Division, in an unreported Opinion, en-

tered an Order suppressing certain evi-

dence which the government intended to

introduce at the trial of Petitioners

herein.: The Court's Findings of Fact and

Conclusions of Law are attached hereto as

Exhibit "A". The government appealed the

Trial Court's Order and on August 31,

1979, the United States Court of Appeals

for the Fifth Circuit, in a published

Opinion found at 601 F.2d 883, reversed

the ruling of the Trial Court. A copy of

this Opinion and the Court's Judgment

Overruling Motion for Rehearing En Banc

is attached to this Petition as Exhibit

eed

JURISDICTION

The Judgment of the United States

Court of Appeals for the Fifth Circuit

was entered on August 23, 1979, a Motion

for Panel Rehearing was overruled on

September 21, 1979, and a Petition for

Rehearing En Banc was denied on November

14, 1979. The Petitioners herein in-

voke the jurisdiction of this Honcrable

Court pursuant to 28 U.S.C. §1254(1):

"By writ of certiorari granted

upon the petition of any party

to any civil or criminal case,

before or after rendition of

judgment or decree;"

QUESTIONS PRESENTED

By reversing the Order of Suppres-

a

sion of the Trial Court, the United

States Court of Appeals for the Fifth

Circuit in effect has suspended all

Fourth Amendment rights and privileges

to those motorists that choose to travel

on public roadways which deviate from |

the national highway system in areas

near the border, merely because patrol-

men of the Immigration and Naturaliza-

tion Service consider the roadway itself

of being suspect or capable of transport-

ing illegal activities thereon. The

threshold question presented by this

Petition is:

se Whether a roving border pa-

trolman can stop a motorist that chooses

to deviate from our Federal highway sys-

tems and travel upon a roadway, albeit

rough and lonely, merely because of the

nature of the roadway itself, without

the officer having observed any speci-

fic articulable fact which would lead

to a

conclusion that the motorist was

engaged in the smuggling of illegal

aliens or any other type of illegal

activity.

tion

STATUTES INVOLVED

Fourth Amendment to the Constitu-

of the United States:

"The right of the people to be

secure in their persons, houses,

papers, and effects, against un-

reasonable searches and seizures,

shall not be violated, and no

Warrants shall issue, but upon

probable cause, supported by

Oath or affirmation, and parti-

cularly describing the place to

be searched, and the persons-or

things to be seized."

21 U.S.C. §841(a) (1):

"to manufacture, distribute, or

dispense, or possess with intent

to manufacture, distribute, or

dispense, a controlled substance;"

STATEMENT OF THE CASE

Petitioners Jimmy Delton Petty and

Joe Martin Nunez-Quintela were indicted

in the United States District Court for

the Western District of Texas, Pecos Di-

vision, on July 17, 1978, for a viola-

tion of 21 U.S.C. §84l(a)(1), to-wit:

knowingly and intentionally possessing

with intent to distribute a quantity of

marihuana, a Schedule I controlled sub-

stance.

Petitioners thereafter filed a Mo-

tion to Suppress Evidence on the ground

that the stop by the roving border pa-

trol agent was not founded upon specific

articulable facts, together with ration-

al inferences from these facts, that

6a

would reasonably lend suspicion that the

vehicle in which they were riding con-

tained illegal aliens. On the 12th day

of September, 1978, District Judge

William Sessions ruled in favor of Pe-

titioners' Motion and entered an Order

suppressing the contraband and any

statements made by the Defendants pur-

suant to the illegal stop. The govern-

ment appealed and subsequently, on

August 23, 1979, the Fifth Circuit is-

sued an Opinion and entered Judgment re-

versing the Judgment of the Trial Court.

Petitioners herein filed Motions for

Panel Rehearing and En Banc Rehearing

which were both denied and hence, this

Petition for Certiorari.

The facts of the case are primarily

undisputed. At the time Petitioners

EE

were stopped pursuant to a roving bor-

der patrol check, they were traveling

on a road located in Southwest Texas

known as Bullis Gap Road.

Bullis Gap Road is a 63 mile

stretch of unpaved, but public, road

which connects on the Southwest end to

U.S. 385 and on the Northeast end to

U.S. 90. Both U.S. 385 and U.S. 90 are

major arteries of travel in the South-

western portion of Texas. U.S. 385 con-

nects with the Eastern entrance to Big

Bend National Park which lies adjacent

to Mexico. Bullis Gap Road is unpaved

and traverses through desolate and

rough terrain. The testimony reflected

that at the Northeast end the residents

along the road generally traveled the

road in pick-up trucks or four-wheel

——

—

drive vehicles, but the initial twelve to

fourteen miles of the Southwest end of

the road was in good condition and main-

tained regularly. From the evidence, it

is evident that the Petitioners entered

the road at the Southwest junction of

U.S. 385 and were then stopped at the

Northeast end of the road approximately

one mile from the junction with U.S. 90.

The officer who was in charge of

the interception was a border patrolman

by the name of Pagitt. Officer Pagitt

had lived in Sanderson, Texas, located

near the Southeast end of Bullis Gap

Road for eleven years. He knew the

resident owners of ranches located on

the Southern end of the Road and knew

what type of vehicles they drove. How-

ever, he did not know the resident

owners that lived on the North end of the

road, and he did not know the non-resi-

dent owners who owned property along the

road but lived elsewhere.

Border Patrol Officer Pagitt, over

Petitioners’ objections, testified that

he had heard from a superior that on two

previous occasions Bullis Gap Road had

been used to circumvent a permanent

checkpoint which was set up by the In-

migration and Naturalization Service on

U.S. 385. Officer Pagitt asked residents

that lived along the road to telephone

him if they saw any strangers using the

road in question.

On the morning of June 21, 1978,

Officer Pagitt received a telephone call

from a friend who lived near Bullis Gap

Road and was informed that two vehicles

«Ge

+ — GE gD, GSE

SAE ES gS

with one person in each vehicle were pro-

ceeding North on Bullis Gap Road. Armed

with this information some two hours

prior to ever seeing Petitioners' ve-

hic!>, Officer Pagitt made the decision

to stop the vehicles in question. He’

enlisted the help of two fellow border

patrolmen and a patrolman from the Texas

Department of Public Safety. Expecting

to intercept two passenger cars, the,of-

ficers took a position on the Northeast

end of Bullis Gap Road approximately

7/10ths of a mile South of U.S. Highway

90 and stopped the vehicle containing

the Petitioners. Officer Pagitt testi-

fied that he made his decision to stop

the vehicles headed Northeast on Bullis

Gap Road approximately two hours prior

to his ever seeing the vehicle in which

-ll-

Petitioners were traveling. He further

testified that he did not know whether

the suspected vehicle had come from Al-

pine, Texas, from Marathon, Texas, (both

towns in opposite directions from the

border), or from the border area. The

only thing he knew was two cars were

headed North on Bullis Gap Road.

Officer Pagitt and his fellow of-

ficers stopped the automobile driven by

Petitioner Petty. The point of the

stop was over 95 miles from the border

of Mexico.

The permanent checkpoint on U.S.

385 which the officer felt that the pas-

senger cars headed North on Bullis Gap

Road were seeking to circumvent appre-

hended 302 illegal aliens in the year

1977.

-12-

ee

REASONS FOR GRANTING THE WRIT

A.

IMPORTANCE OF THE QUESTION

The exercise of unrestrained and

arbitrary discretion by an officer in

the field which infringes upon a citi-

zen's Fourth Amendment guarantees is

hardly a stranger to this Honorable

Court. Each term the Court reiterates

the extreme gravity of danger involved

by insisting that probable cause or

reasonable suspicion exist prior to an

officer infringing upon the freedom of

movement of a citizen.

Perhaps because of the serious

illegal alien problem many of the Fourth

Amendment questions facing contemporary

federal jurists involve the activities

of Immigration and Naturalization Service

a fo

a a ee

border patrolmen performing what has

commonly become termed as "roving border

stops."’ The instant case involves such

a stop.

The government is insisting that

Officer Pagitt's stopping of Petitioners'

vehicle was based upon "reasonable sus-

picion"”. If the lower Court's Opinion

is allowed to stand, a serious infringe-

ment to each citizen's Fourth Amendment

protection will have occurred.

The articulable facts upon which

Officer Pagitt based his "reasonable

suspicion” consisted solely upon his

knowledge of the physical characteris-

tics of the roadway and his knowledge

of some of the residents living adja-

cent to the roadway. His decision to

stop Petitioners some two hours prior

a

to his ever seeing them or the vehicle

in which they were riding was because

he considered them to be strangers to

the area and their automobile suspicious

to the roadway upon which it was travel-

ing.

Since a permanent checkpoint on

U.S. 385 (a highway leading to the Big

Bend National Park upon which hundreds

of thousands of tourists travel annually)

had netted three hundred and two illegal

aliens, and Officer Pagitt had heard

Bullis Gap Road had been used on two

occasions by smugglers seeking to cir-

cumvent the checkpoint, he assumed that

any person driving a vehicle "strange"

to the area was a smuggler. (Compare

the statistics of the three hundred and

two illegal aliens apprehended to the

he

statistics of the San Clemente check-

point discussed in United States v.

Martinez-Fuerte, infra, where seventeen

thousand aliens were apprehended in 1973.)

Since Officer Pagitt did not know

that the cars had come from the border

and made his decision to stop the two

cars traveling North on Bullis Gap Road

some two hours prior to his ever seeing

the car, the record is completely devoid

of any evidence of any individualized

suspicion suspecting that the Petition-

ers were guilty of any criminal activity.

Such standardless and unconstrained dis-

cretion is the evil which this Court

spoke of in previous cases where it em-

phatically insisted that the discretion

of the officer in the field be con-

strained, at least to some extent. See

-16-

ee

Almeida-Sanchez v. United States, 413

U.S. 266, 270; 93 S.Ct. 2535 (1973);

37 L.Ed.2d 596; Camara v. Municipal Court,

387 U.S. 528; 87 S.Ct. 1727 (1967); 18

L.Ed.2d 930; and Delaware v. Prouse, in-

fra. In Delaware v. Prouse, the Court

insisted on a quantum of individualized

suspicion by saying:

"To insist upon neither an

appropriate factual basis for

suspicion directed at a parti-

cular automobile nor upon some

other substantial and objective

standard or rule to govern the

exercise of discretion ‘would

invite intrusions upon consti-

tutionally guaranteed rights

based on nothing more substan-

tial than inarticulate

hunches. Pi i

Simply stated, this Court has

recognized the fact that an individual

does not forego Fourth Amendment pro-

tection when he travels in his automo-

on 8 Fas

bile and, in turn, has insisted that the

law enforcement officer in the field ob-

serve articulable facts indicating crim-

inal activity prior to his restraining

a citizen of his right of privacy and

freedom of movement.

In this case the government is seek-

ing, and the lower Court has allowed,

carte blanch authority to stop all ve-

hicles traveling on those roads which

connect to the major highways of the

United States that lead to the border

without ever seeing the vehicle or the

individual suspected, merely because of

the characteristics and history of the

road itself. Certainly such unfettered

action on the part of governmental a-

gents cannot be constitutionally per-

mitted. In the instant case the statis-

ies

tics themselves show the total unreason-

ableness of the government's position.

In 1975, approximately 332,000 people

visited the Big Bend National Park. See

United States v. Frisbee, 550 F.2d 339.

It is reasonable to assume that the fig-

ures have increased since that time.

U.S. 385 is one of the two major arter-

ies leading to the Big Bend National

Park and in the year of 1977 the check-

point located on U.S. 385 only netted

three hundred and two illegal aliens;

and during that period of time, Officer

Pagitt's superior had heard that on two

occasions the Bullis Gap Road had been

used by alien smugglers seeking to cir-

cumvent the checkpoint. Certainly the

government's position when it seeks

authority to stop all passenger cars

nin

STC Se Oe

traveling on Bullis Gap Road is consti-

tutionally impermissible reasoning.

Petitioners strongly urge that

should the lower Court's Opinion be

allowed to stand, a motorist'’s Fourth

Amendment protection will be eliminated

for all of those motorists that choose

a route not deemed standard in the minds

of the border patrol. Merely because a

person should choose a route which is

out of the way, rough, and tomeky, does

not necessarily imply that the individ-

ual is involved in illegal activity.

Certainly the Fourth Amendment dictates

that some quantum of "observed individ-

ualized suspicion" be involved prior to

the stopping and restraining of a motor-

ist by an officer in the field.

-20-

~—~9 —n ge ee mee

Petitioners would call to the atten-

tion of this Court the applicable quota-

tion from the case of Boyd v. United

States, 116 U.S. 616, 635 (1886):

"It may be that it is the obnoxious

thing in its mildest and least re-

pulsive form; but illegitimate

and constitutional practices get

their first footing in that way,

namely, by silent approaches and

slight deviations from legal modes

of procedure. This can only be

obviated by adhering to the rule

that constitutional provisions

for the security of person and

property should be liberally

construed. A close and literal

construction deprives them of

half their efficacy, and leads

to gradual depreciation of the

right, as if it consisted more

in sound than in substance. It

is the duty of courts to be

watchful for the constitutional

rights of the citizen, and against

any stealthy encroachments thereon."

B.

OPINION BELOW CONFLICTS WITH

APPLICABLE DECISIONS OF THE SUPREME COURT

The landmark case governing roving

oe

a

border patrol stops is United States v.

Brignoni-Ponce, 422 U.S. 873, 95 S.Ct.

2574 (1975), 45 L.Ed.2d 607, which dealt

with stops to investigate the presence

of illegal immigrants. In reliance on

Terry v. Ohio, 392 U.S. 1, 88S.Ct. 1868

(1968), 20 L.Ed.2d 889, and Adams v.

Williams, 407 U.S. 143, 92 S.Ct. 1921

(1972), 32 L.Ed.2d 612, the Supreme

Court held that, even in the absence of

probable cause to search a vehicle or

arrest its occupants, "when an officer's

observations lead him reasonably to sus-

pect that a particular vehicle may con-

tain aliens who are illegally in the

country, he may stop the car briefly and

investigate the circumstances that pro-

voke suspicion."' 422 U.S. at 881, 95

S.Ct. at 2580. The standard for conduct-

-22-

> er ee

A AES SO

ing such a stop is less stringent than

"probable cause to believe the suspects

guilty of a crime."" Id. at 880, 95 S.Ct.

at 2580. Rather, officers on roving pa-

trol may stop vehicles "if they are a-

ware of specific articulable facts, to-

gether with rational inferences from

those facts, that reasonably warrant

suspicion that the vehicles contain

aliens who may be illegally in the

country."" Id. at 884, 95 S.Ct. at 2582.

While the Court's theory below |

recognizes that this Court in Brignoni-

Ponce does allow border patrol officers

to evaluable the totality of the circum-

stances in light of their experiences

and to draw reasonable inferences there-

from, the Court's Opinion ignores the

Supreme Court's directive in Brignoni-

«2%:

Ponce that the factors to be considered, " . ., [We] hold that when an

pape set sat officer's observations lead him

giving rise to reasonable suspicion are reasonably to suspect that a

particular vehicle may contain

all necessarily based upon personal ob- | aliens who are illegally in the

country, he may stop the car

servation by the officers of the suspect- briefly and investigate the

circumstances that provoke sus-

ed person or the suspected vehicle. picion."" (Emphasis added.)

Petitioners do not deny that this The holding of the Fifth Cirucit in

}

Court in Brignoni-Ponce specifically the instant case is in direct conflict

indicated that the officers could con- | with the principles that this Court es-

sider the characteristics of the area tablished in Brignoni-Ponce in that Of-

in which they encounter a vehicle, but ficer Pagitt made up his mind to stop

in listing the factors which a border Petitioners’ vehicle two hours prior to

patrol officer could consider, the re- ever seeing the vehicle in question.

mainder of the factors necessarily in- Hence, his observations could not have

volve personal observation of specific led him to reasonably suspect that the

facts directed toward the specific sus- particular vehicle may contain illegal

pect or vehicle involved. In pronounc- aliens, or be involved in any other type

ing the necessity for individualized of criminal activity.

ee —

99 S.Ct. 1391, 1396-97, 59 L.Ed.2d 660

suspicion, this Court held as follows: In Delaware v. Prouse, U.S. ,

-24- | . -25-

(1979), this Court has recently recog-

nized the extreme danger in allowing

governmental agents to stop those in-

dividuals operating or traveling in an

automobile on anything less than ob-

servable actions creating suspicion, and

further insisted that prior to a

motorist's Fourth Amendment rights being

violated, the officer have an appropriate

factual basis for suspicion directed at

a particular automobile. Anything short

thereof in the words of this Court

'". . .would invite intrusions upon

constitutionally guaranteed rights

based upon nothing more substantial

than inarticulate hunches." Id.at

672.

In Prouse this Court recognized that

the stopping of a vehicle on anything

less than reasonable suspicion based upon

observable facts was the kind of standard-

«26-

Oe ge | age

—

less and unconstrained discretion which

the Court has observed in previous cases

when it insisted that the discretion of

the officer in the field be circunm-

scribed to some extent.

This Court further explained the

theory behind requiring a quantum of at

least reasonable suspicion for roving

patrol stops in the case of United States

v. Martinez-Fuerte, 428 U.S. 543, 96 S.

Cé; 3676; ..49 L.Ed. 24: 1136. . It is

interesting to note that the govern-

ment's argument for eliminating the

reasonable suspicion for permanent check-

points is that there are too may vehicles

to personally observe, thus rendering

reasonable suspicion of each vehicle an

impossibility. In the instant case the

government's argument is that since the

2%

desolate road is so seldom used and has

been used two times in the past for

smuggling, then every vehicle traveling

thereon must be operated by a2 smuggler.

The lower Court's Opinion is likewise

in direct conflict with the principles

set forth in Delaware v. Prouse, supra,

and United States v. Martinez-Fuerte,

supra.

Such a contention by the government

is similar to the position urged by the

State of Texas in the recent case of

Brown v. State of Texas, U:3:; ,

99 S.Ct. __, 61 L.Ed.2d 357 (1979)

wherein it was urged that since the

motorist turned into an alley in a

"high crime" area, thus the motorist

must have been involved in some type

of suspicious activity. This Court, in

-28-

i ee

rejecting such a contention and relying

upon Brignoni-Ponce and Delaware v. Prouse,

reiterated emphatically that officers

must have reasonable suspicion based on

objective facts that the particular in-

dividual is involved in criminal activi-

ty. Likewise, the lower Court's deci-

sion is in direct conflict with the

principles announced by this Court in

Brown v. Texas.

Perhaps equally as important as the

obvious conflict between the constitu-

tional guidelines as announced by this

Court and the lower Court's Opinion is

the fact that the lower Court complete-

ly ignored statements heretofore made

by this Court concerning the type of

roadway upon which a person retains his

Fourth Amendment guarantees. In

-29-

Brignoni-Ponce, this Court struck down

the government's contention that a bor-

der patrol officer could stop motorists

at random for questioning day or night

anywhere within 100 air miles of the

2,000 mile border, on a city street, or

ab meng gmoney

busy highway, or a desert road, without

any reason to suspect that the motorist

had violated the law. Subsequently, in

Delaware v. Prouse, supra, this Court

reiterated the fact that the Fourth

Amendment guarantee extends to motor-

ists using any type of roadways by

saying:

"In this regard, we note that

Brignoni-Ponce was not limited

to roving border patrol stops

on limited access roads, but

applied to any roving patrol

stops by border patrol agents

on any type of roadway on less

than reasonable suspicion.

(Emphasis added.) Id at 669,

670.

—_— ee

-30-

Contrary to the Opinion of the Fifth

Circuit in this case, this Court has

steadfastly refused to limit the Fourth

Amendment rights of a citizen to any par-

ticular type of raodway. Except in

the case of permanent checkpoints,

United States v. Martinez-Fuerte, the

standard has been and well should be

that the officer have a "reasonable sus-

picion"” of illegal activity prior to

the stopping of a motorist, whether the

motorist be traveling on an interstate

turnpike or a lonely desert road.

C.

CONFLICT WITH OPINIONS

OF OTHER CIRCUITS

Petitioners could cite to the Court

scores of cases from other circuits,

particularly those circuits having common

aS

borders with Mexico, that conflict with

the instant case. The other circuits

have been strict in requiring a quantum

of individualized suspicion based upon

specifically observable articulable

facts prior to there being justification

for the stopping of a motorist by a law

enforcement official. The most obvious

conflicting opinion involving a suspi-

cious vehicle on a seldom used route of

travel can be found in the case of

United States v. Cortez, 595 F.2d. 505

(Ninth Circuit, 1979). As pointed out

in the dissenting opinion, the road in-

volved, although paved, was similar to

the Bullis Gap Road in this case. Route

86 also was a less traveled road that

wandered throughout desolate desert

terrain and mountain ranges in Arizona.

a

he Vt oo oe

age cect ey

It was also a road suspected by border

patrol officers as being used for illegal ©

alien trafficking. One of the officers

in Cortez also testified that he knew all

of the local residents and their vehicles

and that the car the defendant was riding

in was suspicious. The facts as set

forth by the dissent are strikingly

similar*to the instant case. The ma-

jority opinion in Cortez held that there

must be individualized suspicion based

upon fact or facts which focus the sus-

picion on the individual or particular

vehicle which is stopped. The Court in

Cortez quotes from Justice Harlan's con-

curring opinion in Sibron v. New York,

392 U.S. 40 p. 73, 88 S.Ct. 1889, 1907, '

20 L.Ed.2d 917 (1968);

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"There must be something at facts in the instant case are also

least in the activities of the

person being observed or his 7 similar in that the officers involved

surroundings that affirmatively

suggests particular criminal mace up their mirds to stop the parti-

activity. . ."(Emphasis added. )

cular vehicle within some ninety

"It is not enough that the officer

has r hunch that criminal activity minutes prior to tke actual stopping of

is afoot.

the vehicle.

BQ any

In Cortez the Court of Appeals for the

B : : The lower Court's Opinion in the h

Ninth Circuit correctly held that under ig

: instant case is also conflicting with Ee

the circumstances, even though the

; the Ninth Circuit case of United States i

officers had a hunch to believe that a a

:

v: Carrizoza-Gaxiola, 528 F.2d 239

professional alien smuggler was operat- |

(Ninth Circuit, 1975). In Carrizoza- 3

ing on a particular weekend and that the |

Gaxiola, the officers stopped a vehicle

defendant's vehicle was within the class F:

; on a road used for the transportation of is

of vehicles usually used in the smuggling

4 cei stolen cars between Phoenix, Tucson, and

operation fitting the modus operendi of

: Mexico, the suspected vehicle on a road

the operation, there were not sufficient

; used by smugglers fit the profile con- ¥

articulable facts leading to the conclu- |

‘ : structed by the officers from specific

sion that the vehicle the defendant was ,

sre : ; : articulable facts, but the Court struck 4

driving was involved in the smuggling ii

: : down the stopping of the defendant in t

operation. The Cortez facts and the ..

34 -35- |

eee

that case, saying:

"founded suspicion requires

some reasonable ground for

singling out the person

stopped as the one who was

involved."

Both Cortez and Carrizoza-Gaxiola

involve what the officers termed as a

suspicious vehicle traveling on road-

ways commonly used for illegal activi-

ties, which is the same contention of

the government in this case, and both

cases in the Ninth Circuit reach an

opposite result. However, it should

be pointed out that both cases can be

distinguished in Petitioners’ favor in

that both motorists were driving sus-

pected vehicles in high crime areas.

In the instant case, can the government

be heard to claim that Bullis Gap Road

was a high crime area simply because

= =

aw

Officer Pagitt had heard the road had

been used two times for smuggling pur-

poses during the eleven year period

that he had lived in the area. With

at least one-third of a million people

visiting the area in question annually,

and considering the wilderness nature

of the Big Bend area itself, certainly

it is not inconceivable that a motorist

would venture down the public road

known as Bullis Gap Road simply to view

the casual country. Or, perhaps a

motorist entering from the U.S. 385 end

might wish to take a scenic shortcut to

the town of Sanderson, which is located

on the U.S. 90 end of the road.

Petitioners feel that it would be

fitting to include the Honorable William

S. Sessions' statements. from the bench

ee

at the conclusion of the suppression

hearing concerning the lack of suffi-

cient articulable facts to create

reasonable suspicion in the mind of

Officer Pagitt.

"The Court does not mean to be

flippant at all, Mr. Mesa, but

mad dogs and Englishmen go out

in the noonday sun. There is

no question in my mind that

there might be some people who

would try to take any road that

was available just to see what

was at the other end or to go

across it. I simply do not be-

lieve from what the Government

has presented that there are

sufficient articulable facts in

which one could reasonably stop

the automobile. The Court be-

lieves that there was obviously

good police work; obviously Mr.

Pagitt had a good surmise; ob-

viously they were very alert;

and obviously they were very

right. And there is no question

but what you did, in fact, in-

tercept two traffickers in

marihuana. And it is unfortunate

that, in fact, there were not

other articulable facts that

would support the stop. The

“eS

stop simply was not proper, and

simply not based upon law, and

for that reason the Court will

grant the motion to suppress

both the items that were seized

and any statements that were

made by the Defendants subse-

quent to the stop that were not

Miranda cleared statements and

properly made subsequent to a

warning."

Big Bend National Park is out na-

tion's largest national park in terms of

area. The park itself consists of a

vast sprawling desert region with ap-

proximately three mountain ranges widely

separated. The road system within the

park contains as many unpaved roads as

it does paved roads. The paved roads

merely are major arteries that lead the

tourists from one major attraction to

another. The terrain over which Bullis

Gap Road traverses has the same topo-

graphical factors. As noted by the

= 99-

Trial Judge, it is not unlikely but

highly probable, due to the nature of

the Big Bend area itself, that tourists

and motorists travel Bullis Gap Road

merely to see what is on the other end.

From the Ninth Circuit cases cited

herein, it is clear that had Petitioners

been stopped in the desert areas of

California or Arizona, a different result

would have occurred.

Merely because an automobile is

"strange" to the area does not mean the

driver is committing illegal activities.

The lower Court's theory that there was

"reasonable suspicion" because of the

fact that a car was strange to the area

and traveling upon a road too rough for

normal driving simply cannot stand.

This Court should grant a Writ of

nihitin

Certiorari to provide uniformity of law

in accordance with the opinions of the

Ninth Circuit and of this Honorable

Court wherein it has been insisted that

there be a quantum of individualized

suspicion directed toward a particular

person or vehicle prior to the officer

having the right to stop said vehicle.

CONCLUSION

Petitioners pray that this Court

grant a Writ of Certiorari to review

the Opinion of the United States Court

of Appeals for the Fifth Circuit and

upon review hereof, Petitioners pray

that the lower Court's Opinion be re-

versed and judgment entered in accord-

at.

EXHIBIT "A"

ance with the well-founded constitu-

IN THE UNITED STATES DISTRICT COURT

tional provisions as discussed herein. FOR THE WESTERN DISTRICT OF TEXAS

PECOS DIVISION

Respectfully submitted,

UNITED STATES OF AMERICA )

\ v. ) No. P-78-

) CR-69(1)

? JIMMY DELTON PETTY )

Attorney at Law + JOE MARTIN QUINTELA-NUNEZ)

217 West Third Street as

Odessa, Texas 79761 | FINDINGS OF FACT AND

Phone: (915) 337-5461 CONCLUSIONS OF LAW

LARRY BARBER, JR. On the 12th day of September, 1978,

Attorney at Law

National Bank of Odessa the above styled and numbered cause was

Odessa, Texas 79761

regularly called on the docket of this

ATTORNEYS FOR PETITIONERS

Court for hearing on Defendants’ Mo-

tion to Suppress the Evidence herein.

Thereafter, the Court having duly con-

sidered the evidence and the summation

of counsel and the applicable law,

hereby makes its Findings of Fact and

Conclusions of Law:

ag sess

FINDINGS OF FACT

1. On or about June 21, 1978, at

-42- : approximately 10:00 A.M., United States

at

Re a en

Border Patrol Officer A. J. Pagitt re-

ceived information from a confidential

informant that two unfamiliar vehicles

were traveling north from Highway 385

on a dirt road known as Bullis Gap Road.

Bullis Gap Road is an unpaved road ap-

proximately 60 miles in length, which

intersects Highway 385 and Highway 90,

approximately five miles south of

Marathon, Texas.

2. Bullis Gap Road runs in a

quarter-circle manner from Highway 385

northeast to Highway 90, and is fre-

quently used by local ranchers and

hunters.

3. Several weeks prior to the in-

cident in question, United States Border

Patrol Officer Hugh Rudston had re-

ceived information that Bullis Gap Road

was being used to circumvent the Border

Patrol checkpoint on Highway 385.

-44-

Thereafter, local ranchers were asked to

report suspicious vehicles on Bullis Gap

Road.

4. On or about June 21, 1978, a

confidential informant telephoned United

States Border Patrol Officer Hugh

Rudston and informed him that two ve-

hicles were on Bullis Gap Road, and that

one person was in each vehicle. The in-

formant said that the vehicles were dark

blue and black, and were traveling ap-

proximately 100 yards apart, towards

Highway 90. '

5. Upon receipt of the informa-

tion from the confidential informant,

Officer Pagitt called United States

Border Patrol Officers Fisher and

Munoz, and said officers situated them-

selves near the intersection of Bullis

Gap Road and Highway 385.

-45-

6. At approximately 11:25 A.M.,

the officers spotted a light blue ve-

hicle containing two persons on Bullis

Gap Road. No other vehicle followed.

The light blue vehicle was stopped and

United States Border Patrol Officers

ascertained that the driver, JIMMY

DELTON PETTY, was the owner of the ve-

hicle. The passenger was identified as

Defendant, JOE MARTIN QUINTELA-NUNEZ.

7. When no other vehicle appeared,

Officer Pagitt went south some four

miles but saw no dust or other indica-

tion of another vehicle.

8. Officer Fisher asked both De-

fendants for their identification, and

then asked Defendant, JIMMY DELTON

PETTY, for a key to the trunk of the ve-

hicle. Defendant, JIMMY DELTON PETTY,

responded that he did not have a key.

~46-

eee hacen rtiigaer

9. Officer Pagitt asked where the

Defendants were coming from, to which

the Defendants responded, "Big Bend

National Park. Defendants said that

they had seen no other car on Bullis

Gap Road.

10. The officers noted that a

jack, spare tire, and CB radio had

been placed in the back seat of the

vehicle, and Officer Pagitt asked the

Defendants why the spare tire was lo-

cated in the backseat. Defendant PETTY

replied that the vehicle was his wife's,

and that the tire was in the backseat

so that it could be inflated.

CONCLUSIONS OF LAW

1. The stop of the Defendants’

vehicle by the United States Border

Patrol Officers was not justified by

"rational inferences," nor was it drawn

mS

from "specific articulable facts," |

nin ye sae ees UNITED STATES OF AMERICA,

hich ted the icion that said |

which warrante suspl1 on PLAINTIFF-APPEL T.

vehicles contained illegal aliens. | f

Vv. :

JIMMY DELTON PETTY AND JOE MARTIN

wos re io. oe

United States v. Brignoni-Ponce, 422

U.S. 873, 884, 95 S.Ct. 2574, 45 L.Ed.

NUNEZ-QUINTELA,

607 (1975).

2. The totality of the circun-

DEFENDANTS-APPELLEES .

NO. 78-3276

herei t indicate that th

stances herein do not indica a e UNITED STATES COURT OF APPEALS,

’ spicions were reasonable and

agents suspicion FIFTH CIRCUIT.

AR 5 AeA I cinch «neil TT 0 sallipiticie ee

well-founded, and there were insuffi- ; AUGUST 31, 1979.

VAR tase 10) bsaatcom

i bl ici

cient grounds for reasonable suspicion APPEAL FROM THE UNITED STATES

aan OS DISTRICT COURT FOR THE WESTERN |

to justify the initial stop herein. DISTRICT OF TEXAS ;

ited . ; F.2d 64

United States v. George, 567 d 643 7 Before WISDOM, AINSWORTH and RONEY, ‘

(5th Cir. 1978); United States v. mas Circuit Judges. ;

Frisbie, 550 F.2d 335 (5th Cir. 1977). AINSWORTH, Circuit Judge:

October 11, 1978 | This appeal involves review of ,

/s/ WILLIAM S. SESSIONS the district court's order granting ‘i

WILLIAM 5S. SESSIONS

United States District Judge

mas Bs i

appellees' motion to suppress evidence

derived from a search of the car in

which they were riding. Appellees

Jimmy Petty and Joe Nunez-Quintela were

-48- |

indicted for possession of a quantity

-49-

of marijuana with intent to distribute,

in violation of 21 U.S.C. § 841(a)(1),

after United States Border Patrol

officers discovered approximately 190

pounds of marijuana in their car's

trunk. Prior to trial appellees moved

to suppress this evidence claiming that

the stop and subsequent search of the

car which led to discovery of the mari-

juana were unsupported by reasonable

suspicion and probable cause and, con-

sequently, violative of the Fourth Amend-

ment. The district court granted the

motion, finding that the Border Patrol

lacked reasonable suspicion for the

initial stop of the car, and the

Government appeals. We reverse.

FACTS :

In large measure this case is

about Bullis Gap Road, a 63-

mile length of unpaved, public

-50-

road running northeast through

» ranch country, canyons, rimrock

and a small mountain range be-

tween United States Highways 385

and 90 in an area just north of

Big Bend National Park in south-

western Texas. In this area,

Highway 385, a paved highway,

runs in a north-south direction

from the eastern entrance of Big

Bend National Park to Fort Stock-

ton, Texas, passing through Mara-

thon, Texas where it intersects

Highway 90, another paved highway.

Highway 90 runs east and west a-

cross Texas forming a Mahe ieele

with Highway 385 at Marathon.

Bullis Gap Road joins Highway 385

roughly 30 miles north of the

Mexican border and 32 miles south

eats

of Marathon and intersects High- cause of the extremely difficult terrain,

way 90 roughly 40 miles east of people living there generally drive Sick-

Fee eee ee Te

Marathon and 15 miles west of up trucks or vehicles with four-wheel

Sanderson, Texas, tracing a rough drive; conventional passenger cars are

quarter circle between the two rarely seen on the road. It takes a

paved roads. No other roads four-wheel drive vehicle approximately

intersect or give access to two hours and forty minutes to drive the

Bullis Gap Road. full length of the road at a maximum

Uncontradicted testimony at the ~ speed of about 30 miles per hour. How-

AN PD I RN LI A lO BL sl ROA PENA AIT nh

suppression hearing established that, ever, by using paved Highways 385 and

sue 1: sabe

except for the southernmost 12 to 14 90 one can go from the road's inter-

miles, Bullis Gig Road, apart from. ! section with one highway to the road's

being unpaved, is in terribly bad con- ) : intersection with the other in about an

dition and in places "nearly impass- hour and a half. Because the northern

able."! There are many low water cross- | three quarters of the road are so bad,

ings and large sandbars where water has the few residents living along the road

washed sand across the road. There are rarely use the road to reach Highway 90,

no bridges. In addition, there are preferring to drive south to Highway

numerous deep holes in the road. Be- : 385 and then take Highway 385 to Mara-

thon. There are no signs or markings

Ba: Se eS ee | EBs.

at the road's southern end that indicate

that it leads to Highway 90. The dis-

tance from the road's intersection with

Highway 385 to Fort Stockton along

Highway 385 is approximately 90 miles;

by taking Bullis Gap Road to Highway 90,

however:, a traveler would add roughly

30 miles to the trip, making a total of

140 miles.

Throughout most of the year the

road is very lightly traveled, used

principally by the eight or so families

who live there and a few absentee

owners who visit occasionally. The

road does receive relatively more use,

however, during the hunting season which

runs for about a week after Thanksgiving

in November or December. The stop in

this case occurred in June, not in the

hunting season. Border Patrol officers

=.

olla tb a aaa citar Sehnad bata lia Oe oe SR Uae Abit cn sis

are familiar with most of the residents

along the road and their vehicles.

As stated above, the intersection

of Bullis Gap Road and Highway 385 lies

30 miles north of the Mexican border.

The nearest, manned port of entry on

the border is at Presidio, Texas, lo-

cated about 80 miles west of Big Bend

National Park. In the vicinity of the

Park there are eight unmanned ports of

entry and numerous spots where the Rio

Grande is easily forded. The events in

this case took place in June when the

river is passable. In January 1965 the

Border Patrol established a checkpoint

on Highway 385 five miles south of ©

Marathon. During the 1977 fiscal year

302 aliens who entered the United

States illegally were apprehended at

this checkpoint.

«$$.

ase ta - a a

Ee ee st < mod a

Several weeks before June 21, 1978,

Hugh Rushton, the Assistant Chief of the

Border Patrol stationed in Marfa, Texas,

notified Border Patrol Officer Albert

Pagitt, who was stationed in Sanderson,

that he had on two different occasions

received information that Bullis Gap

Road was being used by motorists to

circumvent the checkpoint on Highway

385. Accordingly, Officer Pagitt asked

various people living along the road if

they had seen any strangers and re-

quested that they telephone him if they

Saw any strangers or suspicious vehicles

on the road.

On the aiid of June 21, Pagitt

received a telephone call from a friend

who lived near Bullis Gap Road and who

had helped him on previous occasions to

the effect that there were two cars,

«Sik.

flab taste <n ifs

one light blue and the other dark blue

or black, driving north on Bullis Gap

Road with one person in each car. The

cars were traveling about 100 yards

apart and from their location at the

time of the call Pagitt estimated that

they would reach Highway 90 within an

hour and a quarter to an hour and a half.

He immediately began preparation to stop

the two cars when they reached Highway

90, enlisting the aid of Officers

Forrest Fisher and Robert Munoz of the

Border Patrol and Officers Charles

Lowrance and Randy Mills of the Texas

Department of Public Safety.

Fisher and Munoz took up a position

on Bullis Gap Road about .7 of a mile

south of Highway 90, while Pagitt and

the two DPS officers established an

observation point on the road approxi-

“$7

mately 1.4 miles south of Highway 90.

When a light blue car with two passengers

passed the observation position, Pagitt

directed Fisher by radio to stop it and

then drove south for roughly four miles

in search of the second car. Although

Pagitt did not see another car at that

time, the dark blue car was eventually

located about 20 miles south of Highway

90 where it was stuck in a low water

crossing.

At the time of the stop, however,

not having seen a second car or dust

from a car, Pagitt returned to where

Fisher and Munoz had stopped the light

blue car and its occupants, appellees

Petty and Nunez-Quintela. After Fisher

reported that appellees had no key to

the car's trunk, Pagitt had a conversa-

tion with Petty who had then gotten out

of the car. In response to Pagitt's

-58-

@

questions, Petty stated that they were

coming from the area of Big Bend Na-

tional Park and that they ware going

to Fort Stockton. Petty said that there

was no other car with him and that he

had seen no other car on the road while

he had been on it. Petty was talking

very rapidly, while Nunez sat in the

car saying nothing and looking straight

ahead.

In plain view on the car's back

seat were an inflated spare tire, a

jack, a lug wrench and a CB radio which

was not dneaktigas: There was a func-

tional CB radio in the front seat. The

officers noticed no camping equipment

in the car. When asked about the spare

tire, Petty mentioned something about a

flat tire and said that he had borrowed

the spare tire and not put it back in

the trunk. He explained that he had

= %Oc

gotten the car from his wife and did not

have the trunk keys. Pagitt testified at

the hearing that, after a second inquiry

about the keys, Petty "told us that there

was nothing in the trunk, and said go

ahead and break it open if we wanted to

but there was nothing in it."2 There

is no evidence in the record to contra-

dict Pagitt's testimony that Petty

voluntarily offered to permit the

officers to break open the trunk in

order to allay suspicion and verify

that it was empty.

Although pagitt had the necessary

tools to force open the trunk, he de-

clined to use them as he "didn't want

to just break the man's trunk open

when I could go through the back seat

without tearing anything up." There-

fore, when Petty said he was going to

eS BS

3.. Ibid.

-60-

——e

a re eee eee anes

stsiedsttintamniaeialeaaaan

Fort Stockton by way of Sanderson,

Pagitt suggested, "Well, let's--how

about going on into my office and we'll

look, go through the back seat."'4 The

Border Patrol's Sanderson office is

only 100 yards past the road to Fort

Stockton on Highway 90. Petty and

Nunez-Quintela, who were not under

arrest at this time, then drove their

car to Sanderson followed by the Border

Patrol and DPS officers in other cars.

On reaching Sanderson, Pagitt and DPS

Officer Mills removed the back seat of

the Petty car and found the marijuana in

the trunk. The officers then read Petty

and Nunez-Quintela their rights and

called the Drug Enforcement Administra-

tion.

DISCUSSION:

The proper analysis in this case

4. Fe. Bs Bes

okt <

requires a two-step inquiry:

first, to determine whether there

was reasonable suspicion for the

initial stop of appellees' car,

and second, to determine whether

the subsequent search was justi-

fied either by appellees' consent

or by probable cause.

A. THE STOP:

[1] The landmark case governing

roving patrol stops is United States v.

Brignoni-Ponce, 422 U.S. 873, 95 S.Ct.

2574, 45 L.Ed.2d 607 (1975), which

dealt with stops to investigate the

presence of illegal immigrants. In re-

liance on Terry v. Ohio, 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed.2d 889 (1968) and

Adams v. Williams, 407 U.S. £43; 92.3.

Ct. 1921, 32 L.Ed.2d 612 (1972), the

Supreme Court held that, even in the

~62-

Boar BO) ets at IM rity ar ae rt

absence of probable cause to search a

vehicle or arrest its occupants, "when

an officer's observations lead him

reasonably to suspect that a particular

vehicle may contain aliens who are

illegally in the country, he may stop

the car briefly and investigate the

circumstances that provoke suspicion."

422 U.S. at 881, 95 S.Ct. at 2580. The

standard for conducting such a stop is

less stringent than "probable buna to

believe the suspects guilty of a crime.

Id. at 880, 95 S.Ct. at 2580. Rather

officers on roving patrol may stop ve-

hicles "if they are aware of specific

articulable facts, together with

rational inferences from those facts,

that reasonably warrant suspicion that

the vehicles contain aliens who may be

illegally in the country." Id. at 884,

-63-

95 S.Ct. at 2582. Beyond limited ques-

tioning regarding the suspicious cir-

cumstances, "any further detention or

search must be based on consent or

probable cause." Id. at 882, 95 S.Ct.

at 2580.

By conditioning stops on the

existence of reasdénable suspicion

motorists are protected from "poten- .

tially unlimited interference with

their use of the highways, solely at

the discretion of Border Patrol

officers." Id. at 882, 95 S.Ct. at

2581. See also Delaware v. Prouse,

U.S. , 99 S.Ct. 1391, 1396-

97, 59 L.Ed.2d 660 (1979); United

States v. Martinez-Fuerte, 428 U.S. 543,

96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976).

The Court in Brignoni-Ponce articulated

a number of factors that officers may

sbhe

——

a 3 en hd

New Sneath. ites aN

RecN eb 6h Nbewicn A w otal 3 ro

——

consider in determining the existence of

reasonable suspicion. Among them are

"the characteristics of the area in

which they encounter a vehicle, [i]ts

proximity to the border, the usual

patterns of traffic on the particular

road, .. . previous experience with

alien traffic. . ., recent illegal

border crossings in the area, [t]he

driver's behavior .. ., obvious

attempts to evade officers . . e

[a]spects of the vehicle itself, .. .,

an extraordinary number of passengers,

or . . . persons trying to hide." 422

U.S. at 884-85, 95 S.Ct. at 2582 (cita-

tions omitted). In evaluating the in-

ferences to be drawn from observable

facts, "the officer is entitled to

assess the facts in light of his ex-

perience in detecting illegal entry and

smuggling." Ibid.

-65-

Although we have in recent years

had occasion to apply the Brignoni-Ponce

test in a wide variety of factual situa-

tions, including many cases from the

vicinity of Big Bend National Park, e.g.,

United States v. Carroll, 5 Cir., 1979,

591 F.2d 1132; United States v. Saenz,

5 Cir., 1978, 578 F.2d 643, cert. denied,

U.S. , oe Bb CS... Bae, Se. 4.. 84.

2d 42 (1979); United States v. Villarreal,

5 Cir., 1978, 565 F.2d 932, cert. denied,

i Deeb Sg SR GOR.) Fae ee

116 (1978), it is the nature of this area

of the law that "[e]ach case must turn

on the totality of the particular cir-

cumstances.'' United States v. Brignoni-

Ponce, 422 U.S: at 885 n. 10, 95 8.€t.

at 2582; United States v. Rivera, 5 Cir.

1979, 595 F.2d 1095, 1098; United States

v. Villarreal, supra, 565 F.2d at 937.

-66-

Dib

We begin our evaluation of the

facts in this case by distinguishing it

from the two cases on which appellees

principally rely, United States v.

Frisbie, 5 Cir., 1977, 550 F.2d 335, and

United States v. George, 5 Cir., 1978,

567 F.2d 643. Frisbie and George both

involved stops on Texas State Highway

118 which runs north from the western

end of Big Bend National Park to Alpine,

Texas.

In Frisbie the Border Patrol de-

tected three vehicles headed north on

Highway 118 between 6:30 a.m. and 7 a.m.

and stopped all three, discovering mari-

juana in the third. We listed the-sus-

picious circumstances advanced by the

Government as follows:

[t]he direction the vehicle was

traveling, the liklihood that

the vehicle was coming from an

a§Fo

350 F.

unpatrolled river area, the diffi-

culty the driver had in stopping

the vehicle, the sparsely populated

area where the stop occurred, [the

officers'] knowledge that local

traffic did not normally travel

the roads in question at such

early hours of the morning and

that the route in question was

frequently traveled by persons

transporting illegal aliens and

contraband, with such activity

taking place primarily in the

late evening and early morning

hours.

2d at 337.

Given that Highway 118 is one of

the two main road§*leading away from

Big Bend National Park, we concluded

that “approval of a stop of this na-

ture,

founded upon dubious ‘'suspi-

-68-

pI FEW ete! oe

cious' circumstances of such slight im-

port would result in subjecting the

thousands of tourists visiting the area

to unreasonable detention whenever they

travel at hours when certain routes are

less frequented."" Id. at 338. Simi-

larly, in George, Border Patrol offi-

cers stopped a Buick Electra with

Georgia license plates traveling north

at 1:45 a.m. when they recognized

neither the car nor its solitary occu-

pant and saw no camping equipment in

the car. 567 F.2d at 644-45.

[2] The major and, in our view,

critical distinction between Frisbie

and George and the instant case is the

great difference between Highway 118,

a paved highway and one of the major

arteries leading to Big Bend National

-69-

Park, and Bullis Gap Road, an unmarked,

unpaved, nearly impassable stretch of

road whose northern end is rarely used

even by its own residents driving pick-

up trucks and four-wheel drive vehicles.

In this respect the facts in the case

at bar are considerably more favorable

to the Government than they were in

two recent cases in which we upheld in-

vestigative stops on Highway 118 and

Highway 385, respectively. United

States v. Villarreal, supra; United

States v. Almand, 5 Cir., 1978, 565

F.2d: 927, .cert. denied, HiSn Sy

99 S.Ct. 92, 58 L.Ed.2d 116 (1978).

The record establishes that, ex-

cept during hunting season, Bullis Gap

Road receives little use and its

northern three-quarters almost none.

7

The record further demonstrates that, due

to the rugged and difficult terrain,

those who do drive on the road generally

use pick-up trucks or vehicles with four-

wheel drive. Thus, however sparse the

total traffic on the road, the number of

ordinary passenger cars is even less.

The families living along t..e road are

known to each other and to the Border

Patrol, as are their vehicles. Indeed,

traffic is generally so meager that |

residents immediately notice the

presence of outsiders. No signs or

markings at the intersection of Highway

385 and Bullis Gap Road indicate that

the road leads to Highway 90.

In light of these facts, the

presence of passenger cars on Bullis

Gap Road outside of hunting season is

me,

inherently much more suspicious than the

use of Highways 118 and 385 at odd hours

of the day. This factor in conjunction

with the other circumstances surrounding

the stop of appellees’ car careated

reasonable suspicion sufficient to justi-

fy the stop. Officer Pagitt's friend,

who had provided aid on prior occasions,

reported that two cars were traveling

north about 100 yards apart. However

unusual one passenger car would be on

Bullis Gap Road, the presence of two

passenger cars, apparently traveling

together and each with one occupant,

was more unusual.

[3] We have had occasion in

previous cases to consider the use of

cars in tandem or in a "lead car-load

car" arrangement during smuggling

ey

‘ is ti =

operations. See, e.g., United States v.

Resendez, 5 Cir., 1978, 578 F.2d 1041,

1044; United States v. Villarreal, supra,

565 F.2d at 936; United States v.

Barnard, 5.Cir., 1977, 553 ¥.24 389, 392;

United States v. Escamilla, 5 Cir., 1977,

560 F.2d 1229, 1234. While this factor

alone does not justify a stop, e.g.,

United States v. Barnard, supra, 553 F.

2d at 392; United States v. Escamilla,

supra, 560 F.2d at 1234, it is nonethe-

less a circumstance that "may under-

standably raise the officer's suspi-

cions."' United States v. Barnard,

supra, 553 F.2d at 392; United States v.

Villarreal, supra. The officers could

have inferred that there was some con-

nection between the cars from the fact

that two passenger cars were traveling

a

close together along a road rarely used

by any passenger cars. Although only

the light blue car appeared at the

north end of Bullis Gap Road, Pagitt,

knowing the condition of the road,

could reasonably have suspected that

the other car had suffered a mishap en

route. As discovered later, the dark

blue car had in fact become stuck in

a stream bed.

There are other significant cir-

cumstances surrounding the stop of

appellees’ car that contribute to the

reasonableness of Pagitt's suspicions.

The road led away from the Mexican

border in an area where there were

eight unmanned ports of entry and

numerous places where the river was

easily fordable. See United States v.

Brignoni-Ponce, supra, 422 U.S. at

‘-74-

884-85, 95 S.Ct. at 2582; United States

v. Almand, supra; United States v.

Villarreal, supra; United States v.

Lujan-Miranda, 5 Cir., 1976, 535 F.2d

327. Although appellees' car was

stopped roughly 95 miles from the Mexi-

can border, the Border Patrol could

properly have assumed that it came from

the border area since the only point of

access to the road's southern end is

the intersection with Highway 385 which

lies 30 miles north of the border.

Compare United States v. Escamilla, su-

pra. Highway 385 is a route known to

be used for illegal aliens and smuggling,

e.g., United States v. Villarreal,

supra; United States v. Payne, 5 Cir.

1977, 555 F.2d 475, 478; United States

v.Lujan-Miranda, supra, and the Border

Patrol had information that Bullis Gap

ay i,

Road was being used to evade the check-

point on Highway 385 south of Marathon.

E.g., United States v. Brignoni-Ponce,

supra; United States v. Sarduy, 5 Cir.

1979, 590 F.2d 1355, 1357-58.

[4] The Border Patrol officers

were entitled to evaluate these circun-

stances in the light of their experience

and to draw reasonable inferences there-

from. United States v. Brignoni-Ponce,

supra; 422 U.S. at 885, 95 S.Ct. at

2582; United States v. Villarreal,

supra, 565 F.2d at 936 n.4. We con-

clude that the totality of the cir-

cumstances in this case, taken in the

aggregate, was sufficient to create

reasonable suspicion to justify an in-

vestigative stop. :

B. THE SEARCH

Having decided that Officer

ay

Pagitt's decision to stop appellees’ car

was supported by reasonable suspicion,

we now consider whether the subsequent

search of the car's trunk was warranted

either by consent or probable cause.

See United States v. Brignoni-Ponce,

supra, 422 U.S. at 882, 95 S.Ct. at

2580.

oe CONSENT

[5] It is well established that a

party can waive his rights under the

Fourth Amendment and consent to a

search provided, of course, that the

consent represents an "essentially free

and unconstrained choise." United

States v. Watson, 423 U.S. 411, 424, 96

S.Ct. 820, 828, 46 L.Ed.2d 598 (1976);

Schneckloth v. Bustamonte, 412 U.S. 218,

225; 93 S.Ct. 2041, 2047, 36 L:36.24

854 (1973). See also United States v.

Almand, supra, 565 F.2d at 930.

a,

[6] In the instant case, un-

challenged testimony at the suppression

hearing established that Petty not only

consented to the search but actually

suggested that the officers break open

his trunk in order to convince them-

selves that it was empty. The only

reason that the search was conducted at

the Sanderson Border Patrol Office

rather than at the situs of the stop

was that Pagitt did not want to do

damage to Petty's trunk. Neither of

appellees testified at the hearing.

However, there was no evidence that

Petty at anytime withdrew his consent

or objected to going to Sanderson or

to the removal of the back seat. When

asked on cross-examination why he had

not sought to procure a warrant to

search the car Officer Pagitt replied

of8-

"We had received permission from Mr.

Petty to open the trunk."

Our careful reading of the record

has revealed no suggestion that Petty

did not give his consent to the search

or that his consent was the product of

coercion, overt or subtle. Under these

circumstances we are compelled to con-

clude that the search took place pur-

suant to a valid consent.

a: PROBABLE CAUSE

[7, 8] Even if Petty had not con-

sented to the search, however, it was

supported by probable cause and there-

fore lawful. An automobile'’s mobility

is an exigent circumstance permitting

a search without a warrant so long as

there is probable cause. Arkansas v.

Sanders, u.s. , 29 S.Ct... 2506,

a.

60 L.Ed. 2d (1979); Chambers v.

Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26

L.Ed.2d 419 (1970); Carroll v. United

States, 267 U.S. 132, 45 S.Ct. 280, 69

L.Ed. 542 €1925).

[9, 10] The test for probable

cause is whether "'the facts and cir-

cumstances before the officer are such

as to warrant a man of prudence and cau-

tion in believing that the offence has

been [or is being] committed.'" United

States v. Tuley, 5 Cir., 1977, 546 F.2d

1264, 1267, cert. denied, 434 U.S.837,

98 S.Ct. 128, 54 L.Ed.2d 99 (1977),

quoting Stacey v. Emery, 97 U.S. 642,

645, 24 L.Ed. 1035 (1878). See also

Spinelli v. United States, 393 U.S. 410,

419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637

(1969); Brinegar v. United States, 338

U.S. 160, 175-76, 69 S.Ct. 1302, 1310-

11, 93 L.Ed. 1879 (1948). In determin-

-80-

ing whether there is probable cause to

believe a vehicle contains contraband,

"we look to the totality of the cir-

cumstances and the inferences that flow

therefrom." United States v. Clark, 5

Cir., 1977, 559 F.2d 420, 424, cert.

denied, 434 U.S. 969, 98 S.Ct. 516, 54

L.Ed.2d 457 (1977). |

In this case we find that, when

coupled with the circumstances known

prior to the stop, the information

gleaned from Pagitt's conversation with

Petty and observation of Petty's car

provided probable cause to conduct a

search. Petty confirmed that he and

Nunez-Quintela had come from the area

of Big Bend National Park and stated

that they were going to Fort Stockton.

This admission significantly heightened

the unusual nature of Petty's presence

ofi-

on Bullis Gap Road since, by turning off

Highway 385, which leads directly to Fort

Stockton, on to the road, he added at

least 50 miles distance and considerable

time to the trip. This supports the

inference that Petty and Nunez-Quintela

were trying to avoid the checkpoint at

Marathon. Petty offered no explanation

of his choice of this unpaved route over

the shorter, paved road available to him,

and the officers observed no camping e-

quipment or other material that would

tend to explain appellees’ presence in

such a desolate and remote area.

Petty denied having seen the dark

blue car on the road. While it is

possible that Pagitt's friend had seen

a light blue car other than Petty's

driving with a dark blue car, Pagitt

could reasonably have concluded that

-82-

this was most unlikely given the

paucity of traffic on the road. The

more plausible explanation was that

Petty had something to hide. The fact

that an inflated spare tire, a jack, and

a lug wrench, items ordinarily kept in

the trunk, were on the car's back seat

in plain view could arouse suspicion

that something was hidden in the trunk.

See United States v. Hosch, 5 Cir.,

1978, 577 F.2d 936, 966. Petty's state-

ment that he had no key to the trunk be-

cause he had borrowed the car from his

wife could, under the circumstances,

further support the inference that he

was hiding something in the trunk.

The presence of a disconnected

CB radio on the back seat and an

operational CB radio in the front could

lend support to the notion that Petty's

nh %e

car had been traveling in tandem with

another car and that the extra CB radio

had come from the other car. Finally,

appellees' demeanor added to the sus-

picious circumstances; Pagitt testified

that Petty was "talking very rapidly,"

while Nunez-Quintela remained in the

car "just sitting looking straight a-

head."© Given the totality of the

circumstances in this case, together

with the reasonable inferences to be

drawn therefrom, we conclude that the

Border Patrol officers had probable

cause to search the car.

Having found that the initial

stop was based on reasonable suspicion

and that the subsequent search was

2... es Pica

G..) Des se Sa.

-84-

justified both by Petty's consent and

by probable cause, we reverse the grant

of appellees' motion to suppress and

remand for further proceedings con-

sistent with this opinion.

REVERSED AND REMANDED.

ahs

UNITED STATES COURT OF APPEALS

FOF THE FIFTH CIRCUIT

D. C. Docket No. P-78-CR-69

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

JIMMY DELTON PETTY and

JOE MARTIN NUNEZ-QUINTELA,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT OF TEXAS

Before Wisdom, Ainsworth and RaPey>

Circuit Judges.

JUDGMENT

This cause came on to be heard on

the transcript of the record from the

United States District Court for the

Western District of Texas,

argued by counsel;

and was

4

ON CONSIDERATION WHEREOF, It is

now here ordered and adjudged by this

Court that the order of the District

Court appealed from, in this cause be,

and the same is hereby, reversed; and

that this cause be, and the same is

hereby remanded to the said District

Court in accordance with the opinion

of this Court.

ISSUED AS MANDATE: August 31, 1979

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

November 14, 1979

Gilbert F. Ganucheau

Clerk

Tel. 504-589-6514

600 Camp Street

New Orleans, LA. 70130

TO ALL PARTIES LISTED BELOW:

No. 78-3276 - U.S.A. v. JIMMY DELTON

PETTY and JOE MARTIN

NUNEZ-QUINTELA

Dear Counsel:

This is to advise that an order has this

day been entered denying the petition

( ) for rehearing, and no member of the

panei nor Judge in regular active

service on the Court having requested

that the Court be polled on rehearing

en banc (Rule 35, Federal Rules of

Appellate Procedure; Local Fifth Circuit

Rule 16) the petition ( ) for rehearing

en banc has also been denied.

See Rule 41, Federal Rules of Appellate

Procedure for issuance and stay of the

mandate.

Very truly yours,

GILBERT F. GANUCHEAU,

Clerk

By s/Sally Hayward

Deputy Clerk

ce: Ms. LeRoy Morgan Jahn

Mr. Larry Barber, Jr.

Mr. Warren Heagy