Petition for Writ of Certiorari — Public Citizen v. Carlin

“TrLEb

VB WSR nov 5-198

— BPE RE tite tere «

Record No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

ROBERT DALE NICHOLS,

Petitioner.

V.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Michael A. Lamson.* Paul C. Looney

ATTORNEY AT LAW Clay S. Conrad

3120 Southwest Parkway PAUL C. LOONEY &

Suite 406 ASSOCIATES

Houston, TX 77098 11767 Katy Freeway

(713) 526-9269 Suite 740

Houston, TX 77079

(281) 597-8818

Attorney for Petitioner Attorney for Petitioner

*Counsel of Record

Appellate Printing Services * 2 South 6th Street * Richmond, VA 23219 * (800) 642-7789

QUESTIONS PRESENTED FOR REVIEW

I

Does the Doctrine of Lenity forbid a Court of Appeals

from affirming a cause based on an implied holding of a District

Court, although rejecting the express holding of the District

Court?

I]

Where a District Court’s holdings are vague or

ambiguous, does the Doctrine of Lenity require that a Court of

Appeals give deference to that interpretation which is most

favorable to a criminal Defendant?

TABLE OF CONTENTS

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Constitutional and Statutory Provisions Involved .......... 2

ccc k ee cee be sae badeecseduwceess 4

Reasons for Granting the Petition .................... .7

A. The Fifth Circuit’s Ruling Was Based Upon A

Holding the District Court Never Made ............ 7

B. The District Court’s Ruling Was Too

cc cee bbe kesd sn euceseses 15

}. The Fifth Circuit’s Decision Was Wrong ......... 18

D. The Fifth Circuit’s Decision Would Give Some

Citizens A Diminished Expectation of Privacy ..... 20

ee Ceti ea esd beeen odes Beaeee 23

TABLE OF CITATIONS

Cases Cited:

Bell v. United States, 349 U.S. 81,

83, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955) ..... 10

Bifulco v. United States, 447 U.S. 381,

100 S.Ct. 2247, 65 L.Ed.2d 205 (1980) ............ 8

Central Tablet Mfg. Co. v. United States, 417 U.S. 673,

94 S.Ct. 2516, 41 L.Ed.2d 398 (1974) ............. 7

General Elec. Co. v. Joiner, US. _,

118 S.Ct. $12, 139 L.2d.20 506 (1997) ........056. 7

Koon vy. United States, 518 U.S. 81,

116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) ........... 7

Lewis v. United States, 445 U.S. 55,

100 S.Ct. 915, 63 L.Ed.2d 198 (1980) ......... 8-9

McSherry v. Block, 880 F.2d 1049 (9th Cir.1989),

cert. denied, 499 U.S. 943, 111 S.Ct. 1404,

SES Lee PE bs ka ened dewes ats seamen 9

Moskal v. United States, 498 U.S. 103,

111 S.Ct. 461, 112 L.Ed.2d 449 (1990) ............ 8

Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 67 (1984) ............ 12

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

y PR we fk. er ecg e 14

United States v. Brignoni-Ponce, 422 U.S. 873,

95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). ........ 15, 16

iil

United States v. Cardona, 955 F.2d 976 (Sth Cir. 1992), reh’g

denied, 961 F.2d 515 (Sth Cir. 1992),

cert. denied, 506 U.S. 942, 113 S.Ct. 381,

a wceacs 16-17

United States v. Cortez, 449 U.S. 411.

101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ............ 15

United States v. Inocencio, 40 F.3d 716 (Sth Cir. 1994) .. 7. 17

United Siates v. Pallares-Pallares. 784 F.2d 1231

EE Or ee aa eS oe ub esa owes 16

United States Constitution Cited:

a Sic dt aS +a a Sy a ee

Fourth Amendment ..................... .. 2, 14, 16, 17

Sixth Amendment ....... eee tee 2D 1213

Rules Cited:

Federal Rule of Criminal Procedure 7(c\(l) ............. |

Index to Appendix

Appendix A - Memorandum and Order of Judge George P.

Kazen of the Southern District of Texas, Laredo Division, in

United States v. Nichols, Cause No. L-96-326 ........... la

Appendix B - Opinion of the United States Court of Appeals

for the Fifth Circuit, reported as United States v. Nichols, 142

F.3d 857 (Sth Cir. 1998), and filed on May 29, 1998 ...... Sa

Appendix C - Order in the Court of Appeals for the Fifth

Circuit, Motion for Rehearing, filed on July 6, 1998...... 4ia

Appendix D - Indictment, United States of America v. Robert

Dale Nichols, in the Southern District of Texas, Laredo

Division, filed on December 3, 1996 .................. 42a

nM le tah Ce ea Sati ac

PETITION FOR A WRIT OF CERTIORARI

Robert Dale Nichols respectfully petitions for a writ of

certiorari to review the judgment of the United States Court of

Appeals for the Fifth Circuit in this case.

STATEMENT OF JURISDICTION

The Court of Appeals entered its judgment on May 29,

1998. A timely petition for rehearing was denied on July 6,

1998. The petition for writ of certiorari is accordingly timely

by October 5, 1998, as October 4, 1998 is a Sunday. The

jurisdiction of this Court is invoked under 28 U.S.C. Sec.

1254(1).

PINI B WwW

The opinion below in the Fifth Circuit on direct appeal

is reported as United States v. Nichols, 142 F.3d 857 (Sth Cir.

1998) (App. A). The Motion for Rehearing in the Fifth Circuit,

decided July 6, 1998, is unreported. (App. B). The decision in

the District Court in United States v. Nichols, Criminal Action

No. L-96-326, Honorable George P. Kazen, Presiding District

Judge, is not published. (App.C).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment to the United States

Constitution provides in relevant part: “The right of the people

to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be

violated...”

The Fifth Amendment to the United States Constitution

provides in relevant part: “No person shall . . . be deprived of

life, liberty or property, without due process of law.”

The Sixth Amendment to the United States Constitution

provides in relevant part: “In all criminal prosecutions, the

accused shall enjoy the right to . . . have the Assistance of

Counsel for his defense.”

Federal Rule of Criminal Procedure 7(c)(1) provides:

In General. The indictment or the information shall be a

plain, concise and definite written statement of the

essential facts constituting the offense charged. It shall be

signed by the attorney for the government. It need not

contain a formal commencement, a formal conclusion or

any other matter not necessary to such statement. Allega-

tions made in one count may be incorporated by

reference in another count. It may be alleged in a single

count that the means by which the defendant committed

the offense are unknown or that the defendant committed

it by one or more specified means. The indictment or

information shall state for each count the official or

customary citation of the statute, rule, regulation or other

provision of law which the defendant is alleged therein to

have violated.

AAPOR s nites tel OS ete Bt 4 Eee ALN, King

STATEMENT OF THE CASE

¥ The Initial Stop

At 5:30 A.M., November 14, 1996, two Border Patrol

agents were sitting in a marked Border Patrol Bronco, at the

intersection of Highway 649 and Highway 16, approximately

20 miles south of Hebronville, Texas on Highway 16. They

observed a common white utility vehicle operated by Appellant

heading north on Highway 649. The Agents observed that the

Appellant was the only occupant of the vehicle.

The agents called in the license plate number of

Appellant’s truck to the Texas Department of Motor Vehicles.

The truck was licensed to the Fleet Leasing Company of

Houston, Texas. The agents never were in possession of, nor

were they aware of, any warrants for search, seizure or arrest

covering the Appellant or his vehicle. The Agents followed

Appellant’s vehicle for approximately a minute and a haif, or

three quarters of a mile, before pulling the vehicle over.

From that point on Appellant was not free to leave, and

his vehicle was searched. Contraband was found, and

Appellant was arrested and subsequently charged in a two-

count indictment with conspiracy to possess with intent to

distribute a quantity in excess of 100 kilograms of marihuana

and possession with intent to distribute approximately 520

pounds of marihuana.

2. Proceedings in the District Court

The Appellant was indicted and charged in Criminal

Action No. L-96-326 in the Southern District of Texas at

Laredo of violations of Title 21, United States Code, Sections

846, 841(a)(1) and 841(b)(1)(B) and Title 18, United States

Code Section 2 (see Appendix D). Before trial, Appellant filed

a a a ee

a Motion to Suppress Evidence, which was denied for a lack of

factual specificity. Appellant then filed Defendant's Motion

for Leave to File Defendant's First Amended Motion to

Suppress Any Evidence Obtained And Statements Made By

Defendant, and Defendant's First Amended Motion to Suppress

Any Evidence Obtained And Statements Made By Defendant.

Leave to file was granted, and a hearing was held upon this

amended motion.

The only witness at this hearing was Agent Arnoldo

Diaz. Agent Diaz gave the following reasons for stopping

Appellant:

I, The Agent claimed to have been suspicious

because the truck Appellant was driving was clean.

il. The Agent claimed to have been suspicious

because the Appellant stopped for approximately 25 seconds

before continuing.

iii. The Agent claimed to have been suspicious

because the Appellant was on the road at 5:30 A.M., which he

believed to be one-half hour earlier than such trucks were

usually on the road, although he admitted this was

“borderline.”

iv. The Agent claimed to have been suspicious

because the Appellant’s truck deviated “slightly” from the

pavement.

V. The Agent claimed to have been suspicious

because the Appellant’s truck bore no logos or decals, other

than a “How’s My Driving” bumper sticker.

Vi. The Agent claimed to have been suspicious

because Appellant did not choose to look at him.

Ribs

Judge George P. Kazen denied the Appellant’s motion

to suppress in a four-page Memorandum and Order. In the

final paragraph of that document, Judge Kazen found “(while

the instant case presents a closer question than some, the Court

concludes from a totality of the circumstances that the agents

did have sufficient articulable facts to make the stop. The

location was relatively close to the Mexican border, the route

was notorious for illegal activity, an unmarked utility truck

traveling that area at 5:30 A.M. was unusual, as was the

driver’s behavior. At the very least, the agents had an

objectively reasonable good-faith belief that they had sufficient

basis to make the stop.”

Following that Order, the Appellant conditionally pled

guilty to Count Two of the indictment. Appellant filed a timely

Notice of Appeal.

cH Proceedings on Appeal

The Fifth Circuit Court of Appeals affirmed the

conviction in the district court, holding that Judge Kazen did

not err in finding that the Border Patrol had reasonable

suspicion to make the stop. Petitioner asserted, during

argument and in his appellate briefing, that the district court

judge had never made such a finding, and that the Fifth Circuit

had failed to give due deference to the actual findings of the

district court. A Petition for Rehearing was denied.

REASONS FOR GRANTING THE PETITION

A. The Fifth Circuit’s Ruling Was Based Upon A Holding

The District Court Never Made

1. The district court Judge George P. Kazen never

found that the officers at the scene had reasonable suspicion to

justify the stop. The district court ruling on the Defendant's First

Amended Motion to Suppress Any Evidence Obtained And

Statements Made By Defendant was delivered in a four-page

Memorandum and Order, attached to this Petition as Appendix C.

All the district court found was that the officers had “sufficient

articulable facts [to]... at the very least... [justify] an objectively

reasonable good-faith belief that they had sufficient basis to make

the stop.” The Appellant argued in his appellate brief, reply brief,

and post-submission brief, that the Good-Faith Exception did not

apply where the officers were relying on nothing extrinsic to their

own evaluation and understanding.

The Fifth Circuit failed to address whether the good faith

exception to the exclusionary rule could apply to the facts of this

case. They did, however, explicitly recognize in a footnote that

“in contrast to the present case, the situation justifying application

of the good-faith exception to reasonable suspicion

determinations has always involved circumstances extrinsic to the

government agent’s personal observations at the time of the stop.”

Thus, the Fifth Circuit failed to directly address the district

court’s only explicit holding - that the Stop was permissible under

the good faith exception to the exclusionary rule, although they

did strongly imply in a footnote that it was not.

However, the Fifth Circuit characterized the district

court’s only explicit holding as an “alternative holding,” and

erroneously proceeded to “affirm” a holding that had never been

6

enunciated by the district court judge. This was clearly

erroneous. A Court of Appeals is not at liberty to embellish on

the holdings of a district court judge, or to affirm holdings they

believe the district court should have made, but did not. Legal

consequences ordinarily flow from what has actually happened,

not from what a party might have done from the vantage of

hindsight. See Central Tablet Mfg. Co. v. United States, 417 U.S.

673, 690, 94 S.Ct. 2516, 2526, 41 L.Ed.2d 398 (1974).

Courts of Appeals are expected to give due deference to

the actual holdings of the district courts. In the instant cause, the

Fifth Circuit failed to give the district court that level of deference

which is the hallmark of abuse of discretion review. See, e.g..

General Elec. Co. v. Joiner, _ U.S. __ , 118 S.Ct. 512, 139

L.Ed.2d 508 (1997), Koon v. United States, 518 U.S. 81, ---- -

----, 116 S.Ct. 2035, 2046-2047, 135 L.Ed.2d 392 (1996), United

States v. Inocencio, 40 F.3d 716, 721 (Sth Cir. 1994). Because

the district court did not find that the officers on the scene had

reasonable suspicion at the time they stopped Appellant, the Fifth

Circuit should have given that finding the appropriate level of

deference.

The “sufficient articulable facts” the district court referred

to in its Memorandum and Order were clearly only sufficient, in

the opinion of the district court judge, to justify “an objectively

reasonable good-faith belief [on the part of the agents] that they

had sufficient basis to make the stop.” The district court’s

holding did not include any findings to the effect that the officers

were in possession of facts sufficient to create a reasonable

suspicion at the time the stopped the Appellant, only that the

officers could reasonably, but erroneously, believe that they were.

From the plain text of the district court's Memorandum and

Order, it is clear that the district court judge believed that the

good-faith exception to the exclusionary rule justified the actions

taken by the Border Patrol agents in this case and either

pretermitted his analysis at the point of reaching that conclusion,

or affirmatively rejected the contention that the agents had

reasonable suspicion at the time they stopped the Appellant.

After rejecting the application of the good faith exception

to the facts of this case, the Fifth Circuit should have, in

deference to the findings the district court actually made, either

remanded the cause to the district court with an order that the

evidence involved be suppressed, or remanded the case to the

district court for a determination of whether the officers at the

scene in fact had articulable reasons causing them to suspect

criminal activity at the time they made the stop. However, as the

district court confessed that this “case presents a closer question

than some,” and only went so far as to apply the good faith

exception to the exclusionary rule, it would reasonably appear to

have been a futile gesture to remand this cause for such a

determination. The district court already stated what level of

Suspicion they felt had been proven - and that only ‘closely’

proven.

Instead of following these more prudent procedures, the

Fifth Circuit improperly determined whether reasonable suspicion

existed in the first instance, without any deference on that crucial!

issue to the actual findings of the district court. This was

improper and required that the Court of Appeals judges assess the

facts and the credibility of witnesses. something the district court

was undoubtedly in a far better position to do.

a The Doctrine of Lenity provides that the

“touchstone of the rule of lenity 'is Statutory ambiguity.” Moskal

v. United States, 498 U.S. 103, 107-108, 111 S.Ct. 461, 465, 112

L.Ed.2d 449 (1990), quoting Bifulco v. United States, 447 U.S.

381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980), quoting

Lewis v. United States, 445 U.S. 55, 65, 100 S.Ct. 915, 921, 63

8

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L.Ed.2d 198 (1980). However, it would appear reasonable that

ambiguity in a district court’s holdings should also be subject to

examination under the Doctrine of Lenity, for the very reasons

which caused the Doctrine to be created in the first instance.

The principle behind the doctrine of lenity is that an

individual should be put on clear notice as to what the law is.

The test for insufficient notice is whether the criminal statute is

“so vague that it fails to give a person of ordinary intelligence fair

notice that his contemplated conduct is forbidden by the statute.”

McSherry v. Block, 880 F.2d 1049, 1052 (9th Cir.1989) (citations

omitted), cert. denied, 499 U.S. 943, 111 S.Ct. 1404, 113 L.Ed.2d

459 (1991). This principle is equally valid with reference to what

a district court may or may not have found. A district court

should not issue an opinion so vague that it fails to give a person

of ordinary intelligence fair notice of what facts the district court

believed had been proven or what law had been applied.

Perhaps in many cases specificity is even more necessary

in a court’s holdings, as a district court’s findings could impact a

defendants punishment and appellate rights, or could have other.

equally serious ramifications. It is certainly unfair and a denial

of the Fifth and Sixth amendment guarantees of due process of

law and effective assistance of counsel to sentence a man to

prison based upon “deference” to district court holdings he had no

fair notice of, and accordingly had no proper opportunity to

contest upon appeal or object to at the District Court level.

It is certainly not an onerous burden to require district

courts to state their holdings with a certain degree of specificity.

It should, in fact, be easier for district courts to do this than for

the legislature, because statutory law spells out general rules

(even the stated exceptions to the rules are general exceptions);

while courts deal with the law as applied to the facts of a

particular case under all its circumstances. Accordingly, while

9

the legislature must draft laws which will fairly apply to a broad

range of conduct, courts must only deal with the law as applied to

one particular fact situation. The degree of specificity possible in

the latter would tend to be much greater than in the former.

Perhaps that explains why these situations so rarely arise

in appellate law - only occasionally are district court rulings so

vague as t© leave serious readers, attorneys or litigants with

doubts as to what the court intended. However, in this cause the

district court was vague, and failed to enunciate a clear finding

other than that in his opinion the Stop was justified under the

Good Faith Exception to the Exclusionary Rule. That finding

was certainly not affirmed by the Fifth Circuit. and was at least

implicitly, albeit strongly, rejected.

In Bell v. United States, 349 U.S. 81. 83. 75 S.Ct. 620,

622, 99 L.Ed. 905 (1955) this Honorable Court wrote that:

When Congress leaves to the Judiciary the task of

imputing to Congress an undeclared will. the ambiguity

should be resolved in favor of lenity. And this not out of

any sentimental consideration, or for want of sympathy

with the purpose of Congress in proscribing evil or

anti-social conduct. It may fairly be said to be a

presupposition of our law to resolve doubts in the

enforcement of a penal code against the imposition of a

harsher punishment.

Similarly, when a district court leaves to the courts of

appeals the task of imputing to the district court an undeclared or

unarticulated will, justice requires that the ambiguity should

likewise be resolved in favor of lenity. Courts of appeals should

not be willing to impute holdings to district courts which the

district court judge did not choose to articulate. merely in order

to affirm a conviction which would otherwise have to be

10

overturned. Where a district judge has left his holding ambiguous

or tentative in a criminal case, then it is only just and rational that

courts of appeals should be properly circumspect in construing

the opinion of the district court adversely to the Appellant.

The Rule of Lenity requires that district courts at least

minimally articulate their holdings before they can be granted

deference and held against a criminal defendant. Speculation,

guesswork, and mere implications should not be sufficient to

deprive a citizen of their freedom under the Due Process Clause

of the Fifth Amendment, whether those vagaries were introduced

by the Legislative or by the Judicial branches of Government.

3. This Honorable Court is the only entity capable of

fashioning a rule requiring that in criminal cases district courts

must provide the same degree of specificity in their decisions as

the legislature must provide in statutes before their holdings can

be granted judicial deference. If this is not done. the

interpretation most favorable to the defense must be the one to

prevail on appeal. This is the only practical way to prevent

convictions being affirmed based upon supposed “deference” to

district court holdings that were never made.

B. The District Court’s Ruling Was Too Vague To Be

Upheld

There are further constitutionally important reasons to

require district courts to make explicit their holdings in a criminal

case. Without explicit holdings from the district court, a criminal

appellant is essentially denied his Sixth Amendment rights to

proceed on appeal. This establishes violations of the Appellants’

rights to effective assistance of counsel and due process of law

that clearly must be resolved in favor of the appellant.

A criminal appellant can not effectively proceed on appeal

without knowing what issues are involved, any more than he

could proceed at trial without fair notice of the charges against

him. If Courts of Appeals are to affirm convictions upon

holdings that Appellants have not had proper notice of, then the

Appellants have had no fair opportunity to join issue with those

holdings and to proceed to litigate their appeals. Appellate

counsel can not effectively prosecute an appeal where the district

court is vague in its holdings. These issues deny criminal

appellants both due process of law under the Fifth Amendment to

the United States Constitution, as well as effective assistance of

counsel upon appeal under the Sixth Amendment to the United

States Constitution.

Trial counsel can not preserve error if district courts are

permitted to give ambiguous or nebulous rulings. Without

knowing what the district court has ruled, trial counsel can not be

confident that error is preserved and continue on with their case.

This denies criminal defendants effective assistance of trial

counsel, because failing to preserve error at trial constitutes

ineffective assistance of counsel under the Sixth Amendment to

the United States Constitution. See Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 67 (1984).

12

Ain

Ah RA At RN al ae Ei. Spinel either leon hee Hh 9

cetoareul ae a Pattee

These issues are similar to the considerations that apply to

notice defects in indictments. Cases construing such situations

are very instructive by analogy. It is useful to note that Federal

Rule of Criminal Procedure 7(c)(1), requires a “plain, concise and

definite written statement of the essential facts constituting the

offense charged.” District courts should also be willing to

provide a plain, concise and definite statement in their written

holdings.

All of these serious problems may be resolved if this

Honorable Court were simply to apply the Doctrine of Lenity to

the rulings of district courts. Such a measure would ensure that

criminal appellants could prosecute their appeals, without fear of

being struck down at the last minute by a sub silentio holding of

which they had not been provided fair notice.

Further, there is no mechanism such as a Bill of

Particulars to require a district court judge to make more explicit

his holdings - especially where, as here, the explicit holding

appeared clear. A motion for a more definite ruling is unlikely to

be filed where the record does not show a need for such a motion.

Thus, if sub silentio rulings are to be enforced, Appellants will

not have effective assistance of counsel, because they will not

have any notice of the issues involved, and will have no reason to

know that they issues are not as they appear.

A court of appeals, as noted above, has a responsibility to

give due deference to the findings of a district court. This

requires that the findings of a district court be sufficiently cogent

that they can be explicitly identified and deferred to. When the

findings of the district court are vague, the Doctrine of Lenity

must require that the court of appeals construe them in the light

most favorable to the defendant, in order to preserve the

fundamental rights to due process of law and effective assistance

of counsel.

13

ba The Fifth Circuit’s Decision Was Wrong

The Fifth Circuit sitaply erred in affirming the district

court’s ruling in this cause in any event. That is because the

agents at the scene did not have reasonable suspicion to justify a

traffic stop under Terry v. Ohio, 392 US. 1, 88 S.Ct. 1868, 20

L.Ed.2d 889 (1968), or its progeny.

In its opinion, as Judge James L. Dennis pointed out in his

dissent, the Fifth Circuit was

. . . Not able to point to specific articulable facts

which, taken together with rational inferences

therefrom, reasonably justified a suspicion that

Nichol’s vehicle contained aliens illegally in the

country or was engaged in other criminal activity.

The combined enumerated factors relied upon by

the officers was negligible; because the vehicle

stop here was based almost completely on the

officers’ subjective determinations, it crossed the

line beyond which the stopping of automobiles

upon “reasonable suspicion” grounds runs afoul of

the Fourth Amendment.

The factors the Fifth Circuit relied on were that the

Appellant’s utility truck was clean and bore no company logos,

that the truck was registered to a leasing company out of Houston,

that the Appellant was headed North 35 miles from the Mexican

border, that the truck paused for 25 seconds at an intersectior.

that the Appellant was driving slowly, that one of the dual rear

tires went slightly off the pavement, and that the truck was at the

intersection approximately one-half hour before the agents

customarily saw commercial traffic begin. The Fifth Circuit did

not claim that any of these factors were indicia of criminal

activity.

14

4

:

2

:

<

3

Border patrol agents on roving patrol may not stop

vehicles unless they are aware of specific articulable facts,

together with rational inferences from those facts, that reasonably

warrant suspicion that the vehicle contains illegal aliens or drugs.

United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct.

2574, 2582, 45 L.Ed.2d 607 (1975). In the instant cause, the

factors relied upon by the Fifth Circuit, even considered in the

aggregate, are clearly insufficient to amount to reasonable

suspicion under a proper application of the totality of the

circumstances test enunciated by this Honorable Court in the case

of United States v. Cortez, 449 U.S. 411, 416-18, 101 S.Ct. 690,

694-95, 66 L.Ed.2d 621 (1981). Therefore, the Fifth Circuit came

to the wrong conclusion in the instant cause, and for that reason

their decision in this cause should be reversed.

WN

D. The Fifth Circuit’s Decision Would Give Some

Citizens Diminished Expectations of Privacy

The protections of the United States Constitution are

applicable throughout the entirety of the United States. It is not

true, as the Fifth Circuit’s decision implies, that the protections of

the Fourth Amendment are so diminished near border areas that

vague, nebulous or negligent facts may create reasonable

suspicion in those areas, and not in others. Judge Dennis, in his

dissent, noted the weakness of the facts upon which the rest of the

panel found reasonable suspicion existed, and the rest of the panel

relied heavily on proximity to the border in making their

arguments. Indeed, the opinion clearly stated that without

proximity to the border, the remaining factors would necessarily

have been considered “charily.”

While this Honorable Court has held that law enforcement

officials may consider whether a vehicle is in a border area as a

factor in a proper application of the totality of the circumstances

test, United States v. Brignoni-Ponce, 422 U.S. at 884-885, 95

S.Ct. at 2581-2582, it has not held that the presence of a vehicle

in a border area did or could make related activities which were

otherwise innocent become reasonably suspicious. Nor has it

been held that proximity to the border is in itself a suspicious

factor at all. Millions of law-abiding Americans live near the

Canadian, Mexican and, in the case of some Alaskans, Russian

borders. Some other cogent, articulable factors must be found

which indicate criminal activity afoot, before the mere fact that a

vehicle is in the area of an international border has any weight

whatsoever.

The Fifth Circuit cites to a series of their own cases.

United States v. Pallares-Pallares, 784 F.2d 1231 (Sth Cir. 1986);

United States v. Cardona, 955 F.2d 976 (5th Cir. 1992), reh’g

denied, 961 F.2d 515 (Sth Cir. 1992), cert. denied, 506 U.S. 942,

16

Sela ABN y cnc F eb LON d

113 S.Ct. 381, 121 L.Ed.2d 291 (1992), and United States v.

Inocencio, 40 F.3d 716 (Sth Cir. 1994), all of which discuss

border searches. These cases show that the Fifth Circuit has

given excessive and increasing weight to the mere fact that a

vehicle has been stopped in the area near the border. The instant

case presents a new low in that direction - with no articulable

facts that are more than negligible, the Fifth Circuit has allowed

a vehicle to be stopped. In other words, being near the border

combined with any activity that gives the officers a scintilla of

suspicion shall now be deemed sufficient to justify a vehicle stop

in the border areas within the Fifth Circuit. The Fourth

Amendment does not become meaningless in border towns; it is

therefore imperative that the constitutional rights of individuals

are enforced in border areas in the same manner as throughout the

rest of these United States.

The Fifth Circuit’s interpretation misinterprets the intent

of this Honorable Court in framing the test of United States v.

Brignoni-Ponce. In that case, this Honorable Court fashioned a

test under which proximity to the border was but one of several

elements to be considered under the totality of the circumstances.

By giving dominant weight to border proximity, the Fifth Circuit

has eviscerated the Brignoni-Ponce test, requiring little or nothing

more than that the person to be stopped be near the border and

drove slowly, or veered slightly, was marginally earlier than

routine traffic, or chose not to turn their head. None of these

factors are indicative of criminal activity; even when considered

in the aggregate.

People living or traveling in border areas are not to be

deprived of their Fourth Amendment rights that cavalierly. The

Brignoni-Ponce test was carefully crafted to take into account a

variety of significant interests and concerns, and the Fifth Circuit

erred in allowing one of the elements of that test to take on

17

overwhelming importance, and by performing their own

balancing analysis, allowing some of those interests and concerns

to take on greater weight than this Honorable Court deemed them

to merit.

CONCLUSION

The Petition for a Writ of Certiorari should be granted

for the reasons discussed above.

Respectfully Submitted,

By:

Michael A. Lamson

Counsel of Record

3120 Southwest Freeway

Suite 406

Houston, TX 77098

Tel. (713) 526-9269

Paul C. Looney

Clay S. Conrad

Paul C. Looney & Associates

11767 Katy Freeway, Suite 740

Houston, TX 77079

Tel: (281) 597-8818

Attorneys for Petitioner

18

LR RES ie ANE Se BE NEI ER we

Bee a ae eee hit

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

LAREDO DIVISION

Filed on March 18, 1997

UNITED STATES OF AMERICA ¥

VS. * CRIMINAL No.L-96-326

ROBERT DALE NICHOLS ’

MEMORANDUM AND ORDER

Pending is Defendant’s Motion to Suppress, which was

heard January 31, 1997. Once again, the facts involved a

“roving Border Patrol” in the general area of Hebronville,

Texas.

At approximately 5:30 a.m. on November 14, 1996, two

Border Patrol agents in a marked vehicle were parked in a

lighted area off the highway at the intersection of State

Highway 16 and FM 649. This location is approximately 30

miles from the Mexican border. The agents saw a white utility

vehicle traveling from the south on FM 649. There was almost

no traffic at that time. The utility vehicle was the third vehicle

seen by the agents in 45 minutes. This type of utility vehicle is

not uncommon in the area because it is used by oil companies

serving various rigs on the area ranches.

However, this particular vehicle was extremely clean,

la

raising a doubt that it had ever recently been on a ranch.

Also, the hour was early for this type of vehicle to be traveling,

since most oilfield vehicles begin to stir at around 6:00 a.m.

Most importantly, in the agents' experience, the utility vehicles

in the area always bore company logos, while this vehicle had

none. It only had a “1-800 ” number on the rear.

accompanying a notice to call the number to report improper

driving.

The utility vehicle stopped at the intersection and

paused for approximately 25 seconds, as if the driver did not

know how to proceed. The Border Patrol vehicle, which was

already in plain view, then illuminated its front headlights,

which were pointed directly at the utility vehicle.

Nevertheless, the Defendant driver continued to stare directly

forward into the brush, making no attempt to turn his head

toward the Border Patrol vehicle. The utility vehicle then

turned left on Highway 16. It traveled at an unusually slow

speed and twice left the pavement onto a gravel shoulder. The

agents followed and ran a license check, which indicated that

the vehicle belonged to the Fleet Leasing Company of

Houston.

Because of manpower shortages, Agent Diaz had not

been to this particular intersection in six months but prior to

that time, he had made approximately ten arrests of alien

transporters in the area. FM 649 is considered a popular route

by alien and drug traffickers who attempt to avoid the many

Border Patrol checkpoints in the area. Agent Diaz had also

personally handled cases where undocumented aliens were

being smuggled in the various compartments similar utility

trucks. Under all these circumstances, the agents decided to

make a brief investigatory stop. The stop shortly led to the

discovery of marihuana, but the Defendant's attorney

2a

asi sli

announced at the hearing that the suppression motion only

challenges the stop.

A roving Border Patrol may temporarily detain vehicles

for investigation if the officers are aware of specific articulable

facts, together with rational inferences from those facts, that

reasonably warrant suspicion of criminal activity. United

States v.Inocencio, 40 F.3d 716, 722 (5th Cir. 1994). The

Court may consider the following relevant factors:

(1) known characteristics of a particular area, (2)

previous experience of the arresting agents with

criminal activity, (3) proximity of the area to the border.

(4) usual traffic patterns of that road, (5) information

about recent illegal trafficking in aliens or narcotics in

the area, (6) the behavior of the vehicle's driver, (7) the

appearance of the vehicle, and (8) the number,

appearance and behavior of the passengers.

Id.

The Court is aware of the various decisions cited by the

Defendant which either find the stop illegal or which justify the

stop on different facts than present here. Suffice to say that,

most especially in 'roving patrol’ cases, each must be analyzed

the totality of its own peculiar circumstances and from the

perspective of how those circumstances reasonably appeared to

the officer at the time.

While the instant case presents a closer question than

some, the Court concludes from a totality of the circumstances

that the agents did have sufficient articulable facts to make the

stop. The location was relatively close to the Mexican border,

the route was notorious for illegal activity, an unmarked utility

truck traveling that area at 5:30 a.m. was unusual, as was the

driver's behavior. At the very least, the agents had an

3a

objectively reasonable good-faith belief that they had sufficient

basis to make the stop.

The motion to suppress is DENIED.

DONE at Laredo, Texas this 18th day of March, 1997.

/s/ George P. Kazen

Chief United States District Judge

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APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Filed on May 29, 1998

No. 97-40843

UNITED STATES of America, Plaintiff-Appellee,

V.

Robert Dale NICHOLS, Defendant-Appellant.

On appeal from the United States District Court for the

Southern District of Texas, Laredo Division

Trial Court Criminal Action No. L-96-326

Before POLITZ, Chief Judge, and REYNALDO G.

GARZA and DENNIS, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

Robert Dale Nichols pleaded guilty, under a conditional

plea, to one count of possession with intent to distribute in

excess of 100 kilograms of marijuana. Prior to that plea, the

district court had denied Nichols’ motion to suppress the

marijuana and Nichols’ statements while in custody, holding

that the Border Patrol had reasonable suspicion to stop Nichols

automobile, "based on sufficient articulable facts.". The

district court also held, in the alternative, that the border patrol

agents had an "objectively reasonable good faith belief that

'

Sa

they had sufficient basis to make the stop."

Nichols argues on appeal that the district court erred in

denying his motion to suppress any evidence or statements that

the Border Patrol obtained while detaining and holding him in

custody. Nichols argues that the Border Patrol agents did not

have reasonable suspicion to stop his vehicle, but does not

challenge the ensuing search of his vehicle, which revealed the

marijuana. Nichols further asserts that the district court erred

in its alternative holding, arguing that the "good faith"

exception to the exclusionary rule does not apply to reasonable

Suspicion determinations.

We find below that, based on sufficiently articulable

facts, the totality of the circumstances surrounding the Border

Patrol's stop of Nichols' vehicle satisfied the constitutional

requirement of reasonable suspicion.’ We begin by discussing

l. As we find this to be a case of reasonable suspicion, we

need not address the district court's alternative holding, except

to clarify that the Fifth Circuit has recognized the applicability

of the good faith exception to reasonable suspicion

determinations. See United States v. Inocencio, 40 F.3d 716.

723 n. 10 (Sth Cir.1994) ("[W]e also agree with the

government that [the agents] acted with an objectively

reasonable good faith belief that they had a reasonable

articulable suspicion that legally justified stopping the

defendant."); United States v. Ramirez-Lujan, 976 F.2d 930,

934 & n. 7 (Sth Cir.1992) ("We hold that, under all the

circumstances, agent Coleman acted with an objectively

reasonable good faith belief that he had a reasonable articulable

suspicion that legally justified stopping Ramirez on Pinon

6a

the Supreme Court decision establishing the reasonable

suspicion standard for roving Border Patrol investigatory stops.

We also briefly examine the important public interest justifying

a departure from the probable cause requirement of the Fourth

Amendment in such circumstances, as well as the recent

application of the reasonable suspicion standard in this circuit.

Road."), cert. denied, 507 U.S. 987, 113 S.Ct. 1587, 123

L.Ed.2d 153 (1993); United States v. De Leon-Reyna, 930

F.2d 396, 399-401 (Sth Cir.1991) (en banc ) (applying good

faith exception where agent relied on incorrect information

from other agents). We note, however, that, in contrast to the

present case, the situation justifying application of the good

faith exception to reasonable suspicion determinations has

always involved circumstances extrinsic to the government

agent's personal observations at the time of the stop. See

Inocencio, 40 F.3d at 723 (local ranchers had identified all

vehicles authorized to access private ranch road, which did not

include defendant's vehicle, and sensors alerted agents to

presence of non-routine ranch traffic); Ramirez-Lujan, 976

F.2d at 933-34 (agent knew that truck did not belong to a

resident of the road in question or one of their employees); see

also, e.g., Arizona v. Evans, 514 U.S. 1, 14, 115 S.Ct. 1185.

1193, 131 L.Ed.2d 34 (1995) (holding that evidence seized in

violation of Fourth Amendment as result of clerical errors of

court employees, causing incorrect computer records, fell

within good faith exception to exclusionary rule); United

States v, Garcia, 942 F.2d 873, 876 (Sth Cir.1991) (holding that

border patrol agents’ reliance on erroneous information from

dispatcher justified application of good faith exception), cert.

denied, 502 U.S. 1080, 112 S.Ct. 989, 117 L.Ed.2d 151 (1992).

7a

This opinion next sets forth the facts of the present case, and

then examines those facts in light of the reasonable suspicion

standard. Due to the presence of several factors supporting the

reasonableness of the Border Patrol agents’ suspicion in this

case, we conclude that, based on the totality of the

circumstances, there were sufficient articulable facts to support

the Border Patrol's reasonable suspicion that Nichols was

engaged in criminal activity. As such, we find no violation of

the Fourth Amendment, and we affirm the district court's denial

of Nichols’ motion to suppress.

I. Background

A. The Fourth Amendment and Roving Border

Patrol Stops

The Supreme Court addressed the Border Patrol's

authority to stop automobiles near the Mexican border in

United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574.

45 L.Ed.2d 607 (1975), finding that such authority exists only

where Border Patrol agents "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, 95 S.Ct. at

2582. Specifically, Brignoni-Ponce required the Court to

address whether roving Border Patrol agents may stop a vehicle

near the Mexican border where the only ground for suspicion is

that the vehicle's occupants appear to be of Mexican ancestry.

Id. at 876, 95 S.Ct. at 2577-78. The Court held that the mere

appearance of Mexican ancestry did not alone amount to the

reasonable suspicion necessary for a roving Border Patrol stop

near the border. Id. at 886-87, 95 S.Ct. at 2582-83.

The Court began by noting that the Fourth Amendment

applies to all seizures of the person, including seizures

8a

SIDER

involving only a brief detention short of traditional arrest. Id.

at 878, 95 S.Ct. at 2578-79 (citing, e.g., Terry v. Ohio, 392

U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Quoting from

the seminal Terry decision, the Court explained that a police

officer's restraint of an individual's freedom to walk away

constitutes a seizure, for which the Fourth Amendment imposes

a reasonableness requirement. Id. The reasonableness of such

a seizure, as the Court pointed out, "depends on a balance

between the public interest and the individual's right to

personal security free from arbitrary interference by law

officers." Id.

The Court then examined the interests at stake, finding

that "[b]Jecause of the limited nature of the intrusion, stops of

this sort may be justified on facts that do not amount to the

probable cause required for an arrest." Id. at 880, 95 S.Ct. at

2580. In reaching this conclusion, the Court examined the

public interest in effective prevention of illegal entry of aliens

at the Mexican border, which creates "significant economic and

social problems." Id. at 878-79, 95 S.Ct. at 2579. Against this

valid public interest, the Court weighed the interference with

individual liberty that results when an officer stops an

automobile and questions its occupants, finding this intrusion

to be "modest." Id. at 879, 95 S.Ct. at 2579. The Court

concluded:

[B]ecause of the importance of the governmental

interest at stake, the minimal intrusion of a brief stop,

and the absence of practical alternatives for policing the

border, we hold that 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. As in Terry, the stop and

9a

inquiry must be "reasonably related in scope to the

justification for their initiation."

Id. at 881, 95 S.Ct. at 2580.

The Court elaborated by noting that the reasonableness

requirement allows the government "adequate means of

guarding the public interest and also protects residents of the

border areas from indiscriminate official interference." Id. at

883, 95 S.Ct. at 2581. As such, the Court found that, even

though the intrusion on personal liberty by roving Border

Patrol agents is modest, "it is not 'reasonable' under the Fourth

Amendment to make such stops on a random basis." Id.

Finally, although holding that the apparent Mexican ancestry of

the vehicle's occupants was one of several factors that

legitimately inform the reasonable suspicion analysis, the Court

nonetheless found that "standing alone it does not justify

stopping all Mexican-Americans to ask if they are aliens." Id.

at 887, 95 S.Ct. at 2583.

B. The Valid Public Interest Underlying the

Reasonable Suspicion Standard

In Brignoni-Ponce, the Supreme Court noted the

important public interest in effective prevention of the illegal

entry of aliens at the Mexican border:

Estimates of the number of illegal immigrants in the

United States vary widely.... Whatever the number,

these aliens create significant economic and social

problems, competing with citizens and legal resident

aliens for jobs, and generating extra demand for social

services. The aliens themselves are vulnerable to

exploitation because they cannot complain of

substandard working conditions without risking

deportation.

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422 US. at 878, 95 S.Ct. at 2579. ‘hese concerns are

no less pressing today. The United States Immigration and

Naturalization Service ("INS") estimates that in October 1996,

there were about 5 million undocumented immigrants residing

in the United States. INS Statistics: Illegal Alien Resident

Population (last modified Nov. 25, 1997) <http : / /

www.ins.usdoj.gov/stats/illegalalien> (summarized in William

Branigin, Illegal Immigrant Population Grows to 5 Million,

WASH. POST , Feb. 8, 1997, at A3). The undocumented

immigrant population grew by an estimated 275,000 annually

from 1992-96. Id. Since 1988, the number of undocumented

Mexican immigrants in the United States has grown an

estimated 150,000 annually. Id. Of the 5 million estimated

undocumented immigrants in the United States in October

1996, an estimated 2.7 million, or 54 percent, came from

Mexico. Id. About 60 percent of the total population of

undocumented immigrants entered the United States

surreptitiously across land borders, either between official ports

of entry, or assisted by professional "alien smugglers." Id. A

“very large majority" of these EWI's (entry without inspection)

came from Mexico. Id.

Of course, these alarming statistics say nothing of the Border

Patrol's other important role in protecting the public interest:

preventing the smuggling of illegal narcotics across our

borders. At the end of 1997, official estimates held that

between 5 and 7 tons of illegal drugs are smuggled across our

borders every day. See 143 CONG. REC . E2272-01 (daily

ed. Nov. 9, 1997) (statement of Hon. James A Traficant, Jr.);

see also Border Patrol Will Extend Its Rio Grande Operations,

AUSTIN AMERICAN-STATESMAN, Apr. 4, 1998 (noting

that Border Patrol seized 37,652 pounds of marijuana in March

1998, compared with 9,383 pounds seized in March 1997). In

fiscal year 1996, the United States Customs Service discovered

lla

and seized 2,895 pounds of heroin, 180,946 pounds of cocaine,

and 775,225 pounds of marijuana. U.S. Customs Strategic

Plan, (last visited Apr. 24, 1998)

<http://www.customs.ustreas.gov/about/strat>; Commissioner

of the Customs Service: Oversight Hearing with the Customs

Service Before the House Committee on Ways and Means

Subcommittee on Trade, 1997 WL 10571632 (May 15, 1997)

(statement of Customs Commissioner George Weise) ("In FY

1996, Customs seized or participated in the seizure of a record

| 000,000 pounds of drugs."). According to the Drug

Enforcement Agency, the amount of marijuana seized annually

rose from approximately 400,000 pounds in 1990 to

approximately 1,000,000 pounds in 1995. Marijuana--U.S.

Seizures, (last visited Apr. 24, 1998)

<http://www.usdoj.gov/dea/drugdata/cp-313.htm>. The

Customs Service estimates that the majority of narcotics

entering the United States is being smuggled in along the

nation's southern tier. U.S. Customs Strategic Plan (last visited

Apr. 24, 1998) <http://www.customs.ustreas.gov/about/strat>.

In establishing the reasonable suspicion standard for

roving Border Patrol investigatory stops, the Supreme Court

weighed these public interests against the "modest"

interference with individual liberty that results when an officer

stops an automobile and questions its occupants,

Brignoni-Ponce, 422 U.S. at 878-80, 95 S.Ct. at 2578-80:

however, we recognize that this balancing test is not itself a

factor in the individual application of the reasonable suspicion

standard to particular cases. Nevertheless, a restatement of the

public interests in this regard is useful in that it reminds us to

avoid the temptation to be overzealous in our application of

this standard in favor of the private, rather than public, interests

at stake. See id. at 881, 95 S.Ct. at 2580 ("[B]ecause of the

importance of the governmental interest at stake, the minimal

12a

intrusion of a brief stop, and the absence of practical

alternatives for policing the border, we hold that 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."). In addition, the

current reality of alien and drug smuggling is relevant to the

reasonable suspicion analysis because it forms the backdrop

against which Border Patrol agents must evaluate the facts and

circumstances of each case.

Without question, the Fourth Amendment's protection

against unreasonable searches and seizures preserves one of our

most cherished rights. In 1975, in Bngnoni-Ponce, the

Supreme Court delineated the scope of that right with regard to

investigatory stops by roving Border Patrol agents. See id. at

880-86, 95 S.Ct. at 2579-83. We are, of course, bound by

Supreme Court precedent on the matter, but our reassessment.

in light of current events, of the competing interests at stake in

the determination of reasonable suspicion bolsters the

continued vitality of the Supreme Court's mandate in

y -

C. Application of Brignoni-Ponce in the Fifth Circuit

Clearly, a delicate balance is at stake here. Roving

Border Patrol stops implicate important constitutional

considerations, which we must balance against some of the

nation's most pressing public concerns. We have carefully

applied the Brignoni-Ponce standard in this circuit in the past,

and two recent cases seem particularly on point in light of the

circumstances presented by the facts of the present case.

In United States v. Cardona, we found that the Border

Patrol had the reasonable suspicion necessary to justify an

investigatory stop near the Mexican border. 955 F.2d 976 (Sth

Cir.), reh'g denied, 961 F.2d 215 (Sth Cir.), cert. denied, 506

U.S. 942, 113 S.Ct. 381, 121 L.Ed.2d 291 (1992). In Cardona,

two border patrol agents were parked in a marked Border Patrol

vehicle at an intersection along a remote south Texas road,

which the agents knew to be used primarily by ranchers and

hunters traveling in jeeps and trucks. That particular road was

a notorious smuggling route on which one of the agents had

personally made six stops out of his total of 50 stops during

three and one half years with the Border Patrol. Id. After

about three hours, the agents observed a four door passenger

vehicle riding low to the ground. Id. After the agents began to

follow the vehicle, it slowed its speed considerably and began

to weave in the road, crossing the center line several times,

which indicated to the agents that "the driver was aware he was

being followed and was watching closely in his rearview

mirror." Id. The agents also observed a small decal covering

the place where the vehicle's trunk lock would normally be,

which, based on the agents experience, suggested that someone

may have removed the lock in order to provide air to

undocumented immigrants hiding in the trunk, or to prevent

1 access to the trunk. Id. The agents pulled the vehicle over for

an investigatory stop, incident to which they ultimately

discovered 121 pounds of marijuana in the trunk. Id.

Applying the Supreme Court's Brignoni-Ponce standard

to the totality of the circumstances in Cardona, we found that

the facts were sufficient to permit the district court to conclude

the agents had a reasonable suspicion that the vehicle was

engaged in illegal activity. Id. at981. We summarized the

facts justifying the stop as follows:

The vehicle was reasonably suspected of coming from

the border, it was riding considerably low to the ground

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despite the fact that only two persons were visible

inside it, it slowed considerably and began weaving

when followed, and, significantly, it had a decal placed

over the position of the trunk lock indicating the

possible removal of the lock to permit the free flow of

air to persons concealed in the trunk. Moreover, the

agents were experienced and the area was known to the

agents as an area of high criminal activity of the sort

they suspected the vehicle to be engaged in.

Id.

In United States v. Inocencio, we once again found that

the Border Patrol had the requisite reasonable suspicion

necessary to conduct an investigatory stop. 40 F.3d 716 (Sth

Cir.1994). In Inocencio, Border Patrol agents at a checkpoint

just south of Hebronville, Texas, received notice that a vehicle

had activated directional vehicular senors on a nearby private

ranch road. Id. at 719. The Border Patrol had installed these

sensors after numerous complaints from ranchers, to detect

narcotics smugglers who commonly used the road to

circumvent two nearby Border Patrol checkpoints. Id. As the

agents proceeded to the ranch, they were informed of another

sensor "hit," and also heard on their police scanner that a tan

Ford Bronco had been making U-turns in the area and driving

up and down the highway, which the officers considered to be

possible "lead car" or "lookout car" activity. Id. at 720.

The agents were parked near a locked gate that enclosed

the private ranch when a Ford pickup truck drove up to the

inside of the gate. Id. The truck's sole occupant got out and

unlocked the gate. Id. Two other agents drove by as the driver

locked the gate after exiting the ranch, and then drove his truck

out onto the highway. Id. A ranch owner had previously

advised the agents that the only vehicles authorized to use the

15a

ranch road belonged to ranch employees, with whom the agents

were already familiar, employees of a certain oil company,

whose trucks the agents knew to bear company logos, and

employees of a service company that, as the agents knew, only

owned one Datsun truck. Id.

Despite their advance knowledge of what vehicles were

authorized to use the road, none of the agents recognized the

driver or the truck, which bore no company logo. Id. In

addition, the agents were unaware of any oil activity in the area

at that time and noticed that the truck carried no tools or pipe

racks typical of oil field trucks. Id. Finally, the agents found it

curious that, although the driver appeared to be dressed as a

workman, hi§ clothing appeared too clean for him to have been

working in the field. Id. Based on the foregoing observations,

the agents pulled the truck over, which ultimately led to the

discovery of approximately 300 pounds of cocaine in a false

compartment in the bed of the truck. Id.

Although we found that the "vital element” of

proximity to the border was not present in Inocencio, we

nevertheless concluded that "[t]he totality of ... circumstances

created a sufficient level of reasonable suspicion to conduct an

investigatory stop." Id. at 723. We found clear evidence in

the record of several of the factors identified in

Brignoni-Ponce, including the agents’ experience with the area

and with seizures on the particular road in question, and that

road's reputation as a popular smuggling route (which

circumvented two Border Patrol checkpoints). Id. Also,

although the sensor "hits" did not alone generate reasonable

suspicion, when combined with the observation of an

unfamiliar and atypical-looking oil field vehicle with no

company logos and an unfamiliar individual wearing clean

workman's clothes, we found the circumstances sufficient to

l6a

"as a whole, justify such a stop.” Id. We considered that the

agents were aware of the suspicious activity of the Ford Bronco

in the area, which was consistent with a common smuggling

practice of having a "lead car" act as a lookout for the "load

car," which would communicate with the lead car via two way

radio. Id. In finding these circumstances, as a whole, sufficient

to justify an investigatory stop under Brignoni-Ponce, we

emphasized that the absence of any factor, even the vital factor

of proximity to the border, is not dispositive as long as other

articulable facts warrant reasonable suspicion. Id. at 722-723

(noting, however, that where factor of proximity to border is

missing, the Court will examine the remaining factors charily).

Il. Facts of the Present Case

On November 14, 1996, at approximately 5:30 a.m.,

U.S. Border Patrol Agents Arnoldo Diaz and Elma Reyna were

parked in a marked car under a street light along F.M. 649 at

the intersection of Highway 16, about 30 miles north of the

Mexican border in Texas. According to the agents, this area

was notorious for smuggling activities, although the Border

Patrol had not patrolled it for the previous six months, due to

manpower shortages.

A white utility vehicle driving north on F.M. 649, from

the direction of the border and several border towns, stopped at

the intersection directly in front of the agents' vehicle. The

utility vehicle contained a tool compartment large enough for a

person to fit inside, similar to other compartments in which

Agent Diaz had discovered and arrested illegal aliens in the

past. The agents, whose Border Patrol vehicle was already in

plain view, turned their headlights on the vehicle, but Nichols,

the driver, stared straight ahead and did not look at them or in

the direction that he eventually turned. Instead, Nichols merely

continued to stare straight ahead, into the brush, without

17a

looking down the road either to the left or the right.

At the hearing on Nichols’ motion to suppress, Agent

Diaz testified that, although utility vehicles were not unusual in

the area, this vehicle looked suspicious because it was

unusually clean and did not appear to have been driven off the

road at a ranch or job site, did not bear any company logos

(although it did have a "How's My Driving" sticker with an

"800 number," which indicated that it was a commercial

vehicle), and was on the road about half an hour before such

vehicles generally appeared. Although Agent Diaz later

testified that the time of the vehicle's appearance, by itself, did

not raise his suspicions, there was almost no traffic at the time,

as the utility truck was only the third vehicle that the agents

had seen in 45 minutes.

The vehicle remained stationary at the intersection for

approximately 25 seconds before turning left onto Highway 16.

As stated, the driver stared straight ahead during this time,

without looking at the Border Patrol vehicle or down the road

in either direction. As the vehicle turned, its right rear tires ran

off the road. The agents followed the vehicle, which was

moving very slowly, and again observed that one of its right

rear tires left the road. Agent Diaz testified that he thought this

indicated that the driver was more concerned with whether the

agents were following him than he was with the road ahead.

A radio check of the vehicle's license plates indicated

that the utility vehicle was registered to Fleet Leasing

Company in Houston. After following the vehicle for

approximately 3/4 of a mile, the agents stopped Nichols for an

immigration check. Nichols was driving the vehicle and

remained inside as Agent Diaz approached him on the driver's

side. Agent Diaz testified that the agents stopped Nichols

because it seemed like "some kind of illegal activity or

18a

something" was occurring. Agent Diaz also testified that, as he

approached, he detected the odor of marijuana coming from the

tool box area in the back of the truck.

Il. Discussion

The Fifth Circuit reviews determinations of questions

of law, such as whether reasonable suspicion existed to stop a

vehicle, under the de novo standard. Ornelas v. United States.

517 U.S. 690, ----, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911

(1996); Inocencio, 40 F.3d at 721. In this context, the Fifth

Circuit reviews findings of fact for clear error. Ornelas, 517

U.S. at ----, 116 S.Ct. at 1663; Inocencio, 40 F.3d at 721.

Furthermore, the Fifth Circuit views the evidence presented at

a hearing on a motion to suppress in the light most favorable to

the prevailing party. Inocencio, 40 F.3d at 721.

A. The Scope of Roving Border Patrol Authority

for Investigatory Stops

As discussed above, except at the border and its

functional equivalents, Border Patrol agents on roving patrol

may stop vehicles if they are aware of specific articulable facts,

together with rational inferences from those facts, that

reasonably warrant suspicion that the vehicle contains illegal

aliens or drugs. United States v. Brignoni-Ponce, 422 U.S.

873, 884, 95 S.Ct. 2574, 2581-82, 45 L.Ed.2d 607 (1975).

Pursuant to § 287(a)(1) of the Immigration and Nationality Act,

the Border Patrol has "power without warrant ... to interrogate

any alien or person believed to be an alien as to his right to be

or to remain in the United States....". 8 U.S.C. § 1357(a)(1)

(1998). Section 287 also authorizes the Border Patrol, without

a warrant, "within a reasonable distance from any external

boundary of the United States, to board and search for aliens

any ... vehicle ... for the purpose of patrolling the border to

19a

prevent the illegal entry of aliens into the United States." 8

U.S.C. § 1357(a)(3) (1998). Brignoni-Ponce held that this

statutory authority is subject to the reasonableness requirement

mandated by the Fourth Amendment. 422 U.S. at 882, 95 S.Ct.

at 2580-81. In United States v. Cortez, the Supreme Court

clarified that the agents’ suspicion need not be confined to

considerations of smuggling undocumented immigrants. 449

U.S. 411, 421-22, 101 S.Ct. 690, 696-97, 66 L.Ed.2d 621

(1981). Instead, as the Court explained, "the question is

whether, based upon the whole picture, they, as experienced

Border Patrol officers, could reasonably surmise that the

particular vehicle they stopped was engaged in criminal

activity.” Id.

In making a determination of reasonable suspicion, the

agents (and the courts reviewing the agents’ actions) must take

the totality of the circumstances into account. Cortez, 449

U.S. at 417, 101 S.Ct. at 694-95. In making determinations of

reasonable suspicion in this context, a court may consider

several factors:

(1) known characteristics of a particular area, (2)

previous experience of the arresting agents with

criminal activity, (3) proximity of the area to the border,

(4) usual traffic patterns of that road, (5) information

about recent illegal trafficking in aliens or narcotics in

the area, (6) the behavior of the vehicle's driver, (7) the

appearance of the vehicle, and (8) the number,

appearance and behavior of the passengers.

Inocencio, 40 F.3d at 722 (quoting United States v.

Casteneda, 951 F.2d 44, 47 (Sth Cir.1992) (listing factors

identified in Brignoni-Ponce, 422 U.S. at 884-85, 95 S.Ct. at

2581-82)). Under this test, " 'reason to believe that the vehicle

had come from the border’ is a vital element," although "the

20a

t

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— es

ee ee er -

/

belief that the vehicle has crossed the border is not necessary if

other factors constitute reasonable suspicion to stop the

vehicle." United States v. Pallares-Pallares, 784 F.2d 1231,

1233 (Sth Cir.1986). Nevertheless, where the agents do not

have reason to believe that the vehicle has come from the

border, "the remaining factors must be examined charily." Id.

B. The Totality of the Circumstances in this Case

Gave Rise to a Reasonable Suspicion that

Nichols was Engaged in Criminal Activity

Our review of the record clearly demonstrates that the

totality of the circumstances the Border Patrol agents identified

were clearly sufficient to satisfy the reasonable suspicion

standard, particularly when viewed in the light most favorable

to the prevailing party on the motion to dismiss, as our

precedent requires. See Inocencio, 40 F.3d at 721 ("The

evidence presented at a pre-trial hearing on a motion to

suppress is viewed in the light most favorable to the prevailing

party."). The agents testified: that the road in question was

notorious as a popular smuggling route; that Agent Diaz had

previously made arrests where he had found illegal aliens

concealed in toolboxes such as the one on Nichols’ truck; that

Nichols was traveling north from the border area and that there

was no development other than ranches within twenty miles of

that intersection; that, based on their experience, Nichols’ truck

was uncharacteristically clean for a utility vehicle coming from

a ranch in that area; that Nichols had stopped for 25 seconds at

the stop sign, without looking in either direction down the

road; that, during that 25 seconds, Nichols did not look at the

Border Patrol agents when they shined their headlights on

Nichols’ truck; that Nichols' truck bore no company logo,

which was also uncharacteristic of utility vehicles in that area:

that Nichols was on the road about a half hour earlier than

2la

utility vehicles normally appeared in that area (although Agent

Diaz admitted that this factor was borderline); that traffic at

that time was very light, with Nichols' vehicle representing

only the third vehicle in 45 minutes; that when Nichols finally

did make the turn he was traveling at an unusually slow speed,

and; that Nichols swerved off the road twice while the agents

were behind him.

When viewed in the aggregate, these factors amount to

a reasonable suspicion that Nichols was engaged in illegal

activity. Although some of these factors would not alone

amount to reasonable suspicion, reasonable suspicion

determinations are not limited to analysis of any one factor.

Inocencio, 40 F.3d at 722; see also Cortez, 449 U.S. at 417,

101 S.Ct. at 695 ("[T]he totality of the circumstances--the

whole picture--must be taken into account."). Furthermore,

under a totality of the circumstances analysis, the absence of a

particular factor will not control a court's conclusions.

Cardona, 955 F.2d at 980. The totality of the circumstances

presented by the factors in this case becomes even more

convincing in light of our standard of review: we must view

the evidence presented at the hearing on the motion to suppress

in the light most favorable to the prevailing party--in this case,

the government. See Inocencio, 40 F.3d at 721; Cardona, 955

F.2d at 977.

l. Nichols’ proximity to the border supports

reasonable suspicion

The district court properly found that the location of the

stop in this case was "relatively close to the Mexican border."

This Court has noted that "[w]e have at times focused our

inquiry initially on the question of whether arresting agents

could reasonably conclude a particular vehicle originated its

journey at the border." Id. at 980. As stated, where the agents

22a

do not have reason to believe that the vehicle has come from

the border, the remaining reasonable suspicion factors must be

examined "charily." Pallares-Pallares, 784 F.2d at 1233.

Consideration solely of distance may show that a vehicle is not

likely to have come from the border. See Inocencio, 40 F.3d at

722 n. 7 (noting that "[v]ehicles traveling more than fifty miles

from the border are usually a 'substantial' distance from the

border"); United States v. Melendez-Gonzalez, 727 F.2d 407,

411 (Sth Cir.1984) ("When the stop occurs a substantial

distance from the border, we have found this element

missing."). When finding that a vehicle did come from the

border, however, the court should consider additional factors.

See Inocencio, 40 F.3d at 722 n. 6 (noting that "this issue is

resolved by an analysis of the road the vehicle was traveling

on, the number of towns along the road, the number of

intersecting roads and, finally, the number of miles the vehicle

was actually from the border at the point of the stop").

In Cardona, under circumstances similar to this case,

this Court held that Border Patrol agents had a "reasonable

suspicion to conclude the vehicle had originated its journey at

the border." 955 F.2d at 980. In Cardona, the vehicle, a

mid-size passenger car, was between 40 and 50 miles from the

border and was uncharacteristic of normal traffic for that road.

which consisted mainly of ranch trucks and hunting jeeps. Id.

Finally, the vehicle in Cardona was traveling in an easterly

direction, and the towns serviced by the western direction of

the road were all on or very near the border. Id.

In light of Cardona, and common sense, the Border

Patrol agents in this case clearly had reason to believe that

Nichols was coming from the border. Nichols was only about

30 miles from the border, while Cardona, and other cases have

considered proximity to the border to be a factor contributing

23a

to reasonable suspicion when the stop occurred up to 50 miles

from the border. See id.; see also Inocencio, 40 F.3d at 722 n.

7. Here, the agents testified that the only development within

20 miles of the intersection consisted of ranches which, due to

the agents' past experience, the cleanliness of Nichols' vehicle.

and the lack of a company logo, the officers considered

unlikely points of origin for Nichols’ truck. In other words,

here, as in Cardona, the agents reasonably noticed that the

vehicle in question was uncharacteristic of normal traffic for

the particular road involved.

Furthermore, as in Cardona, the existence of some

towns between the border and the intersection at issue does not

defeat a determination of reasonable suspicion. In Cardona, we

engaged in the following analysis:

Here, the vehicle was between 40 and 50 miles from the

border. The road is a rural, two-lane highway with

approximately 90% of its traffic consisting of ranch

trucks and hunting jeeps. The vehicle, a mid-size

passenger car, was traveling in an easterly direction,

and the towns serviced by the western direction of the

road are all on or very near the border. We hold that

under these facts the agents had a reasonable suspicion

to conclude the vehicle had originated its journey at the

border.

Cardona, 955 F.2d at 980 (emphasis added). At the

suppression hearing in this case, Judge Kazen, one of our most

able trial judges, specifically pointed out, in relation to the

Border Patrol agent's testimony:

If you look at the map and the familiarity that we all

have with that area, I mean, we're taking about a kind of

nowhere land. 649 really comes from nowhere in

24a

particular. It's just a little ranch road that ... a south

Texas ranch road that, generally, a Houston utility

vehicle, at 5:00 o'clock in the morning, has noting to do

there at all unless it's ... unless it's the typical type of

vehicle that is there ... stationed there from these oil

companies, working the ranches there, and I take it

what the gentleman is saying is that those trucks they

know because they generally have all of their logos and

insignias about what oil company they are and what

they're doing there. So here comes a whistle clean.

white Houston utility truck at five something in the

morning, coming north on 649, which is. as I say,

coming essentially from nowhere and going essentially

nowhere, and then has this sort of odd conduct at the

intersection.

(emphasis added). Later in the hearing, while admitting

the Border Patrol agent's hand-drawn diagram of the area in

question, Judge Kazen continued:

For the record, I always keep it here on the bench.

‘cause I've done some [sic ] many of these. ] keep a

state map of this whole area ... and, you know, a map is

| a map and you sort of take judicial notice of what all

those intersections are.

As the Supreme Court recently pointed out, in Ornelas

v. United States:

[A]s a general matter determinations of reasonable

suspicion should be reviewed de novo on appeal.

Having said this, we hasten to point out that a

reviewing court should take care both to review

findings of historical fact only for clear error and to

give due weight to inferences drawn from those facts by

to

Ww

&

resident judges and local law enforcement officers.

517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d

911 (1996).

In light of this standard, our holding in Cardona, and

Judge Kazen's noted consideration of his own knowledge of the

area and the Border Patrol agent's experience, as well as his

consultation of a map of south Texas, we find that Judge Kazen

did not err by finding that the factor of proximity to the border

contributed to reasonableness of the Border Patrol agents’

suspicion. Although a reasonable conclusion of proximity to

the border does not alone constitute reasonable suspicion for a

Border Patrol stop that is not at the border or its functional

equivalent, this "vital element" contributes significantly to the

reasonableness of the Border Patrol agents’ suspicion. See

Pallares-Pallares, 784 F.2d at 1233 (holding that, where agents

do not have reason to believe that vehicle came from border,

"the remaining factors must be examined charily"); see also,

e.g.. Inocencio, 40 F.3d at 722 n. 6 ("This Court considers the

fact that a vehicle may have recently crossed the border as a

vital element in making an investigatory stop."); Cardona, 955

F.2d at 980 ("We have at times focused our inquiry initially on

the question of whether arresting agents could reasonably

conclude a particular vehicle originated its journey at the

border."); United States v. Pacheco, 617 F.2d 84, 86 (Sth

Cir.1980) (finding no reasonable suspicion where "it was pure

speculation on part of agents to opine that defendant's journey

originated at border").

2. Nichols' behavior supports reasonable suspicion

Nichols accurately points to Fifth Circuit precedent

holding that avoidance of eye contact is entitled to no weight,

see United States v. Chavez-Villarreal, 3 F.3d 124, 127 (Sth.

26a

RE. SS ol:

Cir.1993); Cardona, 955 F.2d at 983 n. 9; however, the record

reflects that the Border Patrol agents were more concerned with

Nichols’ overall behavior at the stop sign than they were with

his eye contact, or lack thereof. It is beyond dispute that

Border Patrol agents may consider the behavior of a vehicle's

driver in determining whether there is reasonable suspicion to

stop that vehicle. See, e.g., Brignoni-Ponce, 422 U.S. at 885,

95 S.Ct. at 2582 ("The driver's behavior may be relevant, as

erratic driving or obvious attempts to evade officers can

support a reasonable suspicion."); Inocencio, 40 F.3d at 723

(defendant's use of "load car--lead car" driving pattern,

commonly used by drug smugglers, contributed to

reasonableness of Border Patrol agents' suspicion); Cardona,

955 F.2d at 981 (considering, in reasonable suspicion analysis,

that vehicle slowed its speed considerably and began weaving

shortly after agents began following it).

Here, Nichols' behavior at the stop sign obviously adds

to the reasonableness of the Border Patrol agents' suspicion.

Nichols stopped at the intersection for a full twenty to thirty

seconds. The Border Patrol vehicle was in plain view less than

15 feet away from Nichols’ vehicle. A street light initially

illuminated the Border Patrol vehicle, and the agents

illuminated Nichols' truck with their headlights as Nichols

approached the intersection. The Border patrol agents

observed that, not only did Nichols avoid making eye contact,

but he also did not even look in their direction when they

illuminated their headlights, nor did he look in either direction

down the road as if to see which way to go. Instead, Nichols

simply stared straight ahead into the brush.

Agent Diaz's testimony makes it clear that it was not

merely Nichols' avoidance of eye contact that contributed to the

agents' suspicions, but his overall behavior while at the stop

27a

sign for an unusual period of time:

Q. What did this person do when you illuminated

the cab with your headlights?

A. Well, he didn't acknowledge us at all. 1 mean,

that seemed kind of strange.

Q. What do you mean by "he didn't acknowledge

you"?

A. He came up to the stop sign and just ... it

seemed like he parked there, you know, maybe twenty or

thirty seconds and just kept staring forward, which there's

nothing but brush. He never turned to see which way he

was going to turn to or head to.

* * *

Q. Okay. And during that entire thirty second

period, twenty or thirty second period, whatever you said,

his head did not move in any direction?

A. No.

Q. Did the ... well, let me back up a little bit. You

described ... and we're talking about this utility vehicle.

At this point in time, after you're shining your headlights

on, and it's got no logos and it's clean, is there anything

about the truck itself that causes you to believe that

something illegal is going on? Or could be going on?

A. Well, other than it not having any logos and

everything and this vehicle seemed real clean and Mr.

Nichols there never acknowledging our presence ... I

mean, we had our headlights on, which at 5:30 in the

morning, a normal person is probably ... 1 would turn and

see who's there, and the subject never did it. So it just

28a

)

made us more suspicious about what he was doing.

In addition to Nichols' behavior while at the stop sign,

Nichols' behavior once he made the turn also contributes to the

reasonableness of the Border Patrol agents’ suspicion. Nichols

was driving unusually slow and swerved off the road twice

while the Border Patrol agents were following him. This Court

gave significance to almost identical circumstances in the

reasonable suspicion analysis in Cardona, where the Border

Patrol agent testified that this behavior indicated that the driver

was watching the agents in his rearview mirror. 955 F.2d at

981. Inthe present case, Agent Diaz' testimony on this point

is particularly illustrative:

Q. Did the vehicle do anything ... after you began

to follow it and checked the registration, did the vehicle

do anything else that raised your suspicion?

A. Well, as soon as he made the left-hand turn, as

he was making his turn, his rear, 1 guess, dual tire or

whatever ... the rear tire on the passenger side went off

the road. So he went off the road for a second and got

back on.

Q. Okay. You said he ran off the road. He ran

onto the gravel?

A. Into the gravel, right, off the pavement.

Q. Okay. Did he stay on the gravel or did the

vehicle continue forward?

A. It continued forward. He was driving at a slow

rate of speed. So he just got back on the road and

co) tinued on.

* » *

29a

Q. How slow would you say he was going?

A. Pretty slow. I don't know. Maybe thirty miles

an hour. Maybe not even such. It was real slow.

Q. And how far behind him were you?

A. Well, we just got up close enough to get the

vehicle license plates and we pulled back maybe three car

lengths, two or three car lengths behind him.

Q. Okay. After the vehicle ran onto the gravel

this first time, did it do anything after that that was

unusual to you?

A. Well, he continued on and he kept going real

slow, and for a second time, he went off the side, but it

wasn't as drastic as the first time. He just kind of pull

[sic ] off and on. Or onand off, I should say.

Q. So again he swerved off and then got back on?

A. Right. Slightly.

Q. What, if anything, did that indicated [sic ] to

you?

A. It appeared to me that he was more worried

about us following him than the road ahead of him.

Here, as in Cardona, it was reasonable for the officers to

conclude that Nichols' apparent concern with the agents behind

him rather than the road ahead of him was indicative of some

sort of criminal activity. This is particularly true in light of

Nichols’ suspicious behavior at the stop sign. As such,

consideration of the factor of the driver's behavior weighs in

favor of reasonable suspicion.

3. The characteristics of the area, the road, and the

30a

truck, and information about recent smuggling in the area all

support reasonable suspicion

Consideration of the factors of the characteristics of the

area, the usual traffic patterns of the road, the information

about recent ‘Illegal trafficking in aliens or narcotics in the area.

and the appearance of Nichols’ truck also weighs in favor of

reasonable suspicion. Agent Diaz testified that during his

approximate four years and six months as a Border Patrol

agent, he primarily patrolled a 40 square mile area around

Hebronville, which includes the intersection and roads at issue

in this case. Agent Diaz testified as follows:

Q. Why did you proceed to this particular

intersection? Is there anything significant about this

intersection?

A. Well, it's become pretty notorious for a route

that people can circumvent the checkpoint on highway

16. So we've been sending units down here to see that ...

watch the traffic and observe it there for a while.

* * *

Q. Okay. Was [Nichols'] direction of travel

consistent after he made the turn? Was his direction of

travel consistent with that of one circumventing a

checkpoint?

A. Yes, ma'am.

Q. Which checkpoint would that have been?

A. The one on highway 16, in Hebronville.

Q. Was that significant to you?

A. Yes, ma'am.

It is well established that a road's reputation as a

smuggling route adds to the reasonableness of the agents'

suspicion. See, e.g., Inocencio, 40 F.3d at 723 ("It was

certainly clear to Agent Rhodes and the other agents that this

road ... was a main artery for drug smuggling since it

circumvented the two Border Patrol checkpoints."); United

States v. Ramirez-Lujan, 976 F.2d 930, 933-34 (Sth Cir.1992)

(giving weight to notoriety of the road's use for illegal activity

and to avoid checkpoint). Although Agent Diaz also testified

that the Border Patrol had not investigated the particular area

surrounding the intersection at issue for approximately six

months prior to Nichols’ arrest, he explained that this was due

to a shortage of manpower. As such, that fact alone does not

diminish the significance of the road's reputation as a

smuggling route.

The usual traffic patterns of the road, combined with

the relatively uncommon appearance of Nichols' vehicle further

supports a finding of reasonable suspicion. Initially, Agent

Diaz noted that the vehicle's appearance alone contributed to

their suspicion:

Q. When it passed your location, was there

anything in particular that ... as it approached you, was

there anything in particular about it that you noticed?

A. We found it odd that the truck seemed fairly ...

extremely clean and it didn't have any lagos or markings

on it at all.

Agent Diaz elaborated by explaining that it was

uncommon for a utility truck in that area to be as clean as

Nichols' truck was:

Q. Okay. And when you observed this vehicle,

you also said that it was clean. Why did that strike you

32a

as unusual?

A. 'Cause most of the utility trucks in that area

are.... They're always going into job sites. They're either

going into ranches or to rigs or whatever and they're

always dirty.

Agent Diaz continued by noting that utility trucks were

common in the area, but that utility trucks bearing no logos

were uncommon:

Q. Okay. Now, when you saw this clean utility

vehicle with no logos at 5:30 in the morning, at the

intersection of 16 and 649, what occurred to you? What

did you think was going on?

A. It just seemed out of the ordinary for that area.

I mean, we get a lot of trans-Texas or whatever utility

trucks there and they all have their logos and there's

numbers on the fenders or ... you know, something to

indicate who they're from and we had only had two

vehicles prior to that and they weren't anything like

utility trucks.

In addition, Agent Diaz testified about other aspects of

the truck's appearance that raised his suspicions:

Q. Did the white utility truck have, I guess,

anything like tool boxes or ... utility vehicles normally

have things to place tools or equipment or something.

Did this vehicle have that on it?

A. Yes, it did. The whole truck itself--or the back

portion of the truck is a tool box, a big tool box, which is

pretty big, according to the picture there. A person could

easily fit in the too! box compartment itself.

Q. Okay. Was that important to you as you were

looking at this vehicle and the behavior of the driver?

A. Yes, ma'am.

Q. Okay. Have you ever made arrests of

individuals that have been in tool boxes or hiding in tool

boxes?

A. Yes, ma‘am.

This Court has in the past given weight to an agent's

observation that a vehicle's appearance was atypical of vehicles

in the particular area in question. See Inocencio. 40 F.3d at

723 (giving weight, in totality of circumstances, to observation

of unfamiliar and atypical-looking oil field vehicle with no

company logos). In this case, the vehicle's appearance,

especially when combined with the known characteristics of

the area and the particular road, also contributes to the

reasonableness of the agents’ suspicion.

4. The previous experience of the agents supports

reasonable suspicion

As is evident from the discussion of the preceding

factors, the previous experience of Agents Diaz and Reyna

contributes to the reasonableness of their suspicion in this case.

l'o begin with, Agent Diaz testified that he had personal

experience making arrests for alien smuggling in the area of

Nichols’ arrest. Specifically, Agent Diaz testified that he had

made “at least ten, if not more" arrests in that area.

Furthermore, as stated, Agent Diaz had personally made arrests

of individuals hiding in tool boxes in the back of trucks similar

to the ones on the back of Nichols’ truck. In addition, as

discussed above, the agents past experience with the area

informed their consideration of the factors of proximity to the

34a

border, the characteristics of the area, the usual traffic patterns

of the road, and information about recent illegal trafficking in

aliens or narcotics in the area. The agents’ previous experience

with the road and the surrounding area also contributes to the

reasonableness of their suspicion arising from the vehicle's

appearance, to wit, extreme cleanliness and the lack of a logo,

which was uncharacteristic of utility vehicles in the area.

The interplay of the agents’ past experience

demonstrates the importance of viewing the factors in light of

the totality of the circumstances. See Brignoni-Ponce, 422

U.S. at 885, 95 S.Ct. at 2582 ("In all situations the officer is

entitled to assess the facts in light of his experience in detecting

illegal entry and smuggling."); United States v. Casteneda. 951

F.2d 44, 47 (Sth Cir.1992) (holding that agent's previous

experience with criminal traffic and behavior of vehicle's driver

are factors to consider with regard to reasonable suspicion). In

Casteneda, we stated that "[r]easonable suspicion takes its

fact-driven meaning from the totality of the circumstances

known to the agent, and the agent's ex, erience in evaluating

such circumstances." 951 F.2d at 47. As such, although there

is nothing inherently suspicious about a clean white truck with

no corporate logo, suspicion is reasonable where that truck is

less than 30 miles from the Mexican-American border, on a

road where such trucks usually are dirty due to ranch work and

usually do have logos, about a half an hour before such trucks

normally are on the road, observed by two border patrol agents

who have previously arrested illegal aliens hiding in the tool

compartments of similar trucks, who know the characteristics

of the area, and know that the road in question is a notorious

smuggling route because it circumvents a Border Patrol

checkpoint.’

C. The Role of Precedent

In the totality of the circumstances analysis, each case

necessarily must turn on its own facts; however, analysis of

precedent is necessary to glean the proper rule of law when

giving consideration to the individual factors that make up the

relevant totality of circumstances. For example, our cases

establish that avoidance of eye contact is entitled to no weight

in the determination of reasonable suspicion. See

Chavez-Villarreal, 3 F.3d at 127; Cardona. 955 F.2d at 983 n.

9. As such, we did not consider avoidance of eye contact to be

a factor contributing to the reasonableness of the agents’

suspicion in this case. In contrast, we are also confronted with

binding precedent establishing that the behavior of a vehicle's

occupants and driver are factors that may support a

determination of reasonable suspicion. Brignoni-Ponce, 422

U.S. at 885, 95 S.Ct. at 2582; Inocencio, 40 F.3d at 723:

Cardona, 955 F.2d at 981. Accordingly, we look to our

precedent to guide us in our determination of whether the

circumstances weigh for or against a finding of reasonable

suspicion.

This is not to say that any particular case has dictated

our decision today. Although we draw support from the

2. Although Judge Kazen did find that unusual cleanliness

of a white truck, cleanliness of the driver's clothing, and the

driver's failure to make eye contact did not indicate criminal

activity in United States v. Meza-Diaz, 881 F.Supp. 263

(S.D.Tex.1994), that case does not preclude his consideration

of those factors in subsequent cases involving different

circumstances.

s+

36a

similarity of certain cases to the facts presently before us, such

as Inocencio and Cardona, we do not consider those cases to

dictate our decision. Rather, the totality of facts and

circumstances presented in the record have dictated our result

in this case. Our precedent does inform our analysis, however,

by illustrating the relative significance of certain facts and

circumstances.

Just as Inocencio and Cardona are similar to the present

case, so have we come across several readily distinguishable

cases finding no reasonable suspicion. For example, in United

States v. Orona-Sanchez, we found no basis for reasonable

suspicion where the Border Patrol agents were new to the area

and the agents had no idea where the vehicle was coming from.

648 F.2d 1039, 1041-42 (Sth Cir.1981). In contrast, in the

present case, Agents Diaz and Reyna had extensive experience

patrolling the area where they stopped Nichols and, based on

that experience, they suspected that Nichols was coming from

the border. Similarly, in United States v. Lopez, in finding that

no reasonable suspicion existed, it was significant that

avoidance of eye contact is entitled to no weight and that the

agents did not have reason to believe the defendant's vehicle

was coming from the border. 564 F.2d 710, 712-13 (Sth

Cir.1977) (noting that belief that vehicle came from border is

"vital" element in Brignoni-Ponce analysis and that

government placed "heavy reliance on appellant's failure to

make eye contact with the agents"). As such, these cases do

not detract from our finding of reasonable suspicion in the

present case.

Another distinguishable case is United States v. George,

where we found no reasonable suspicion for a stop that

occurred close to the border at 1:45 a.m., where the vehicle was

"larger than a compact" and had out of state license plates, the

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agents did not recognize the driver or the car, and the agents’

did not observe any camping gear in the vehicle. 567 F.2d 643.

644-46 (Sth Cir.), reh'g denied, 573 F.2d 85 (Sth Cir.1978). An

important factor affecting the totality of the circumstances in

George was that the stop occurred close to a national park. Id.

As a result, George presented a situation similar to what the

Supreme Court specifically sought to avoid by formulating the

reasonable suspicion standard in Brignoni-Ponce:

To approve roving-patrol stops of all vehicles in the

border area, without any suspicion that a particular

vehicle is carrying illegal immigrants, would subject the

residents of these and other areas to potentially

unlimited interference with their use of the highways,

solely at the discretion of Border Patrol officers.

Brignoni-Ponce, 422 U.S. at 882, 95 S.Ct. at 2581.

Similarly, sanctioning the stop in George would have meant

that all out of state visitors to the nearby national park (which,

at the time, attracted more than 300,000 visitors per year)

would be subject to random interference with their Fourth

Amendment rights simply by virtue of being on the road late at

night. 567 F.2d at 645. In the present case, however, as noted

above, we are dealing with what Judge Kazen described as "a

kind of nowhere land." This fact, in contrast to the presence of

a nearby national park, contributes significantly to the

reasonableness of the Border Patrol agents' suspicion,

particularly in light of their experience with the area and the

normal types and patterns of traffic in that area. As such.

George and similar cases do not detract from our finding of

reasonable suspicion in this case.

The bottom line is that we must make reasonable

suspicion determinations on a case by case basis, considering

the totality of the circumstances of each particular case as they

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appeared to the officers or agents at the time of the stop.

Nonetheless, we are guided by past applications of the

standard. Here, as illustrated above, our review of precedent

supports our finding that the totality of the circumstances

presented sufficiently articulable facts for the agents to

reasonably suspect that Nichols was engaged in illegal activity.

Conclusion

Judge Kazen correctly applied the reasonable suspicion

standard in finding the totality of the circumstances sufficient

to justify the stop in this case. This is particularly true due to

the requirement that we view the evidence in the light most

favorable to the government, as the party that prevailed on the

motion to suppress. This finding is consistent with Supreme

Court and Fifth Circuit precedent and the important policies

underlying the cases in this area. As such, we hereby AFFIRM

the district court's order denying Nichols' motion to suppress.

AFFIRMED.

DENNIS, Circuit Judge, dissenting:

I respectfully dissent. "In the context of border area

stops, the reasonableness requirement of the Fourth

Amendment demands something more than the broad and

unlimited discretion sought by the Government." United States

v. Brignoni-Ponce, 422 U.S. 873, 882, 95 S.Ct. 2574, 2580-81.

45 L.Ed.2d 607 (1975). "Except at the border and its

functional equivalents, officers on roving patrol may stop

vehicles only 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, 95 S.Ct. at

2582. Despite the mastery displayed by the majority opinion,

| do not believe that the officers in the present case were able to

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point to specific articulable facts which, taken together with

rational inferences therefrom, reasonably justified a suspicion

that Nichols's vehicle contained aliens illegally in the country

or was engaged in other criminal activity. The probative

significance of the combined enumerated factors relied upon by

the officers was negligible; because the vehicle stop here was

based almost completely on the officers’ subjective

determinations, it crossed the line beyond which the stopping

of automobiles upon "reasonable suspicion" grounds runs afoul

of the Fourth Amendment. See United States v. Escamilla. 560

F.2d 1229 (Sth Cir.1977).

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APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Filed on July 6, 1998

No. 97-40843

UNITED STATES of America, Plaintiff-Appellee,

iP

Robert Dale NICHOLS, Defendant-Appellant.

Appeal from the United States District Court for the Southern

District of Texas, Laredo

ON PETITION FOR REHEARING

Before POLITZ, Chief Judge, REYNALDO G. GARZA, and

DENNIS, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed in

the above case is denied.

ENTERED FOR THE COURT:

s/ Reynaldo Garza

United States Circuit Judge

REHG-2

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APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

LAREDO DIVISION

Filed on December 3, 1996

UNITED STATES OF AMERICA ¥s

VS. * CRIMINAL No.L-96-326

ROBERT DALE NICHOLS ¥

INDICTMENT

THE GRAND JURY CHARGES THAT:

COUNT ONE

From on or about October 14, 1996, to on or about

November 4. 1996, in the Southern District of Texas and

within the jurisdiction of the Court, Defendant,

ROBERT DALE NICHOLS,

did knowingly and intentionally conspire and agree with other

persons unknown to the Grand Jurors to possess with intent to

distribute a Schedule I controlled substance, to-wit: a quantity in

excess of 100 kilograms, that is, approximately 520 pounds (gross

weight) of marihuana.

In Violation of Title 21, United States Code, Sections 846.

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841(a)(1) and 841(b)(1)(B) .

COUNT TWO

On or about November 4, 1996, in the Southern District

of Texas and within the jurisdiction of the Court, Defendant.

ROBERT DALE NICHOLS,

did knowingly and intentionally possess with intent to

distribute a Schedule I controlled substance, to-wit: a quantity

in excess of 100 kilograms, that is, approximately 520 pounds

(gross weight) of marihuana.

In violation of Title 21, United States Code, Sections

841(b)(1)(B) and Title 18, United States Code. Section 2.

A TRUE BILL

s/FOREMAN OF THE GRAND JURY

GAYNELLE GRIFFIN JONES

UNITED STATES ATTORNEY

s/ MARY ELLEN SMYTH

ASSISTANT UNITED STATES ATTORNEY