# Petition — Petty v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1593%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 445 U.S. 962 ## Text 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----, 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); » 3%u Peer NN Ne AR PR = ae. “ > ae €i a RS ge rt oe ee Sp REBT AN EA ORR 0080 Re OER 8 oe ee eet See fetes PA stents SG at 6 EE ct alta BaDags 2 29 SEIT a poet ee ite eS = cy 7" re, SHE grok ie neh Se SORE ar FOR wt, "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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1593%3A1. Public record. Not legal advice.