United States v. Nelson ( 2021 )

Case: 19-41008 Document: 00515778709 Page: 1 Date Filed: 03/12/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 12, 2021
No. 19-41008 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Vernon D. Nelson,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:18-CR-870
Before Higginbotham, Smith, and Dennis, Circuit Judges.
Patrick E. Higginbotham, Circuit Judge:
Vernon Nelson pleaded guilty pursuant to a conditional plea
agreement to conspiracy to possess with intent to distribute 50 kilograms or
more of marijuana, reserving the right to appeal the denial of his suppression
motion. He claims that evidence seized from his vehicle and statements he
made should have been suppressed because Border Patrol agents stopped
him without reasonable suspicion and subjected him to custodial
interrogation without first giving him Miranda warnings. We affirm.
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I.
Around 9:55 P.M. on October 30, 2018, Vernon Nelson approached
the U.S. Border Patrol Laredo North checkpoint in a tractor-trailer. The
checkpoint is located north of Laredo near the 29-mile marker on Interstate
Highway 35. Border Patrol Agent (BPA) Yajaira Flores asked Nelson
whether he was a United States citizen and if he would consent to a scan of
his tractor-trailer. Nelson answered both questions affirmatively.
Nelson went to a second area, where he was met by BPA Marcus
Stauffiger. Stauffiger has worked as a Border Patrol agent for over nine years,
performing various duties at the Laredo North station. For two of those
years, he was detailed to the Drug Enforcement Administration (DEA)
where he received specialized training and investigated narcotics crimes.
Agent Stauffiger scanned Nelson’s tractor-trailer using the “Vehicle and
Cargo Inspection System” (VACIS), which he described in laymen’s terms
as “an x-ray machine” used on commercial vehicles. From his scan of
Nelson’s trailer, he observed only several bundle-shaped objects and the
outline of a dolly. He initially suspected that these objects were equipment
being stored by Nelson. But his assessment changed when he saw a seal on
the back door of the trailer. From his experience, Agent Stauffiger knew that
these seals are typically used to ensure that nothing goes missing from a cargo
load during transport. If the trailer contained only equipment, there would be
no need for a seal. Given these anomalies, Agent Stauffiger typically would
have directed the truck to the secondary inspection area. But ongoing
construction at the checkpoint prevented him from doing so. 1 Nelson left the
checkpoint.
1
At the suppression hearing, Agent Stauffiger testified that due to the ongoing
construction, “Jersey barriers” forced drivers “to turn out towards the exit before the scan
was completed.” Due to this setup, it was “not feasible for [agents] to make the motions
or the indication to the driver to go to the secondary inspection area.”
2
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Now suspecting the scan revealed bundles of narcotics in Nelson’s
trailer, Agent Stauffiger showed the scan to BPA Abraham Cantu. The two
agents decided to pursue the tractor-trailer to perform a roving-patrol stop.
The agents left in separate marked vehicles and pulled Nelson over six miles
north of the checkpoint.
Once stopped, Nelson presented Agent Cantu with a bill of lading,
indicating that he was carrying a load of five pallets of Kellogg’s cereal. Agent
Stauffiger doubted this account, believing that his scan revealed only two
pallets at most. He also noticed inconsistencies in the bill of lading, including
a misspelling of Kellogg, two seal numbers instead of one, and a misspelling
of seal as “SeAl.”
After reviewing the bill of lading, Agent Stauffiger asked Nelson if he
would step out of the truck. He was neither handcuffed nor formally placed
under arrest. Agent Stauffiger told Nelson: “It looks like there’s bundles
inside the trailer.” He asked Nelson for consent to search the trailer and told
him that, if he refused, a service canine would be requested. Nelson refused,
and Agent Stauffiger called for a service dog, which had to be brought from
the checkpoint. 2 Agent Stauffiger informed Nelson that if the service canine
did not alert, Nelson would be free to go. While waiting approximately five
to ten minutes for the service canine to arrive, Agent Stauffiger asked Nelson
several questions. The district court summarized the two-minute
conversation based on the video recording from Agent Stauffiger’s body
camera and the agent’s recollections at the suppression hearing:
BPA Stauffiger: “How long you’ve been driving?”
Defendant: “Thirty-one years.”
BPA Stauffiger: “How about for this company?”
2
At this point, Agent Stauffiger activated his body camera and informed Nelson
that he was being recorded.
3
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Defendant: “I just recently purchased this truck.”
BPA Stauffiger: “Is it registered to you?”
Defendant: “Yeah.”
BPA Stauffiger: “How about the trailer, same thing?”
Defendant: Nods heads in an apparent ‘yes.’
BPA Stauffiger: “How long ago did you purchase the
trailer?”
Defendant: “About a year.”
BPA Stauffiger: “Where did you get it from?”
Defendant: “Atlanta.”
BPA Stauffiger: “Is that where you’re from originally?”
Defendant: “Nah, I’m from Houston.”
BPA Stauffiger: “Just got a better deal in Atlanta?”
Defendant: “I saw it on Facebook. I jumped on it.”
BPA Stauffiger: “Well, how much did you get it for?”
Defendant: Inaudible.
BPA Stauffiger: “Did he already get your I.D.?”
(pointing at BPA Cantu)
Defendant: Shakes head in apparent ‘no.’
BPA Stauffiger: “Is it in the truck? Or do you have it on
you?”
Defendant: “It’s on the dashboard.”
BPA Stauffiger: “I notice a lot of the trailers get
registered out of like Oklahoma,
Kentucky? Why is that? Is it just
cheaper?”
Defendant: “Yeah.”
4
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BPA Stauffiger: “But it’s still registered out of
Houston?”
Defendant: “Yeah.”
BPA Stauffiger: “I notice a lot of the major companies do
it out of Oklahoma. Maine is another big
one. Nebraska. It’s rare that ya get a
Texas-plated trailer.”
Defendant: “Right.”
Within a few minutes, BPA Frederick Irizarry arrived with the service
canine. It alerted on the trailer, at which point the BPAs searched it and found
approximately 72 kilograms of marijuana, packed in tightly wrapped bundles,
consistent with BPA Stauffiger’s assessment of the VACIS images.
Nelson was charged with conspiracy to possess and possession with
intent to distribute 50 kilograms or more of marijuana. 3 He moved to
suppress his statements to Agent Stauffiger, contending that Stauffiger
interrogated him without first giving him Miranda warnings.
At the suppression hearing, the Government called Agent Stauffiger
as its only witness and submitted the video recording from the agent’s body
camera as an exhibit. After the suppression hearing, Nelson filed a
supplemental motion, arguing for the first time that the stop violated his
Fourth Amendment rights and therefore the evidence derived from the stop
should be suppressed. The magistrate judge recommended denying Nelson’s
motion. Nelson filed objections to the magistrate judge’s report, but the
district court adopted the report in full and denied Nelson’s motion to
suppress. Nelson subsequently pleaded guilty to conspiracy to possess with
intent to distribute 50 kilograms or more of marijuana. As part of his plea
agreement, Nelson reserved the right to appeal the denial of his suppression
3
See 18 U.S.C. § 2; 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846.
5
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motion and was sentenced to three years in prison with three years of
supervised release. 4
On appeal, Nelson argues that the district court erred by denying his
suppression motion for three reasons. First, Nelson argues that the BPAs
lacked the reasonable suspicion required to conduct a roving-patrol stop,
rendering all evidence obtained from the stop inadmissible. Second, Nelson
argues that he was in custodial interrogation when questioned by Agent
Stauffiger, making his statements inadmissible, because he was not given
Miranda warnings. Finally, Nelson argues that Border Patrol agents lack
authority to conduct investigative stops solely related to non-immigration
offenses—an argument he concedes is foreclosed under this Court’s
precedent. 5
II.
When considering the denial of a motion to suppress, this Court
reviews factual findings for clear error and legal conclusions, including
whether an officer had reasonable suspicion to support a stop and whether
Miranda’s guarantees have been impermissibly denied, de novo. 6 Evidence
is viewed in the light most favorable to the party that prevailed in the district
court—in this case, the Government. 7 And where, as here, “a district court’s
4
On June 4, 2020, the district court granted Nelson’s motion for compassionate
release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) based on his health and the COVID-19
pandemic. He was re-sentenced to a credit for time-served in the Bureau of Prisons,
followed by a term of one year of supervised release. United States v. Nelson, No. 5:18-CR-
00870 (S.D. Tex. June 4, 2020) (order granting compassionate release).
5
Nelson also argued that the stop was unreasonably prolonged in violation of the
Fourth Amendment. On appeal, Nelson does not raise this issue, and it is therefore waived.
See Adams v. Unione Mediterranea di Sicurta, 364 F.3d 646, 653 (5th Cir. 2004) (“Issues not
raised or inadequately briefed on appeal are waived.”).
6
See United States v. Castillo, 804 F.3d 361, 364 (5th Cir. 2015); United States v.
Harrell, 894 F.2d 120, 122–23 (5th Cir. 1990).
7
See United States v. Rodriguez, 702 F.3d 206, 208 (5th Cir. 2012).
6
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denial of a suppression motion is based on live oral testimony, the clearly
erroneous standard is particularly strong because the judge had the
opportunity to observe the demeanor of the witnesses.” 8 A district court’s
ruling to deny a suppression motion should be upheld “if there is any
reasonable view of the evidence to support it.” 9
III.
Nelson first argues that the district court erred in denying his motion
to suppress evidence obtained from the stop of his vehicle, contending the
stop was unconstitutional because the BPAs lacked reasonable suspicion to
make it. A Border Patrol agent on roving patrol “is justified in stopping a
vehicle if he reasonably suspects, based on specific articulable facts together
with rational inferences from the facts, that the vehicle might be engaged in
illegal activity.” 10 In determining whether reasonable suspicion exists, we
often consider the common sense factors set forth in United States v.
Brignoni-Ponce: 11 (1) proximity to the border; (2) characteristics of the area;
(3) usual traffic patterns on a particular road; (4) agent’s previous experience
in detecting illegal activity; (5) behavior of the driver; (6) particular aspects
or characteristics of the vehicle; (7) information about recent illegal
trafficking in aliens or narcotics in the area; and (8) the number, appearance,
and behavior of the passengers. 12 “[E]ach case must be examined based on
8
United States v. Gibbs, 421 F.3d 352, 357 (5th Cir. 2005) (internal quotation marks
and citation omitted).
9
United States v. Massi, 761 F.3d 512, 520 (5th Cir. 2014) (internal quotation marks
and citation omitted).
10
United States v. Casteneda, 951 F.2d 44, 46 (5th Cir. 1992).
11
422 U.S. 873 (1975).
12
United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001) (citing Brignoni-
Ponce, 422 U.S. at 884–85). To the extent the Government argues that the stop here was
nothing more than a delayed secondary inspection, making the Brignoni-Ponce factors
inapplicable here, we disagree. Because Nelson left the checkpoint without any indication
that the agents wanted him to stop and was surprised to be pulled over six miles later, the
intrusion here was akin to a roving-patrol stop, as it was neither conducted at a known
7
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the totality of the circumstances known to the agents at the time of the stop
and their experience in evaluating such circumstances.” 13
The Government argues, and we agree, that the totality of the
circumstances here support a finding that Agent Stauffiger had reasonable
suspicion to justify stopping Nelson’s vehicle. First, our Court has
recognized that proximity to the border is “a paramount factor in
determining reasonable suspicion.” 14 While there is no bright line test with
regard to this factor, we have held that “[t]he proximity element is
satisfied . . . if the defendant’s car was first observed within 50 miles of the
United States/Mexico border.” 15 It is undisputed that Nelson’s vehicle was
first spotted at the Laredo-North checkpoint less than 50 miles from the
border, here 29 miles, a factor weighing in favor of the reasonableness of
Stauffiger’s suspicions. 16
location nor in a “regularized manner.” See United States v. Martinez-Fuerte, 428 U.S. 543,
559–60 (1976).
13
United States v. Rangel-Portillo, 586 F.3d 376, 380 (5th Cir. 2009) (internal
quotation marks and citation omitted).
14
United States v. Garza, 727 F.3d 436, 441 (5th Cir. 2013) (cleaned up); see also
United States v. Melendez-Gonzalez, 727 F.2d 407, 411 (5th Cir. 1984) (“[T]his Court has
repeatedly emphasized that one of the vital elements in the Brignoni-Ponce reasonable
suspicion test is whether the agents had reason to believe that the vehicle in question
recently crossed the border.”).
15
Jacquinot, 258 F.3d at 428.
16
Nelson also argues for the first time on appeal that the proximity factor if found,
should not weigh “heavily” in favor of reasonable suspicion, because the stop was made on
a major highway near Laredo, a densely populated city. See United States v. Freeman, 914
F.3d 337, 343 (5th Cir. 2019) (“[W]e hesitate to conclude that driving on a road coming
from a densely populated city such as Laredo, even if situated along the border, can weigh
heavily in favor of reasonable suspicion.”). But Nelson did not raise this argument below,
and thus, has not preserved it for appellate review. See Celanese Corp. v. Martin K. Eby
Const. Co., 620 F.3d 529, 531 (5th Cir. 2010) (“The general rule of this court is that
arguments not raised before the district court are waived and will not be considered on
appeal.”). Even so, proximity here would carry weight because “there are other factors
present which suggest illegal activity.” See Freeman, 914 F.3d at 343.
8
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Furthermore, “an officer’s experience is a contributing factor in
determining whether reasonable suspicion exists.” 17 “[A]fter proximity to
the border, [experience] is likely the most important factor because the facts
are to be viewed through the eyes of an objective officer with Agent
[Stauffiger’s] experience.” 18 Agent Stauffiger received five months of
training at the Border Patrol Academy, and he received nine months of post-
academy training after that. As a Border Patrol Agent, he worked various
operations at Laredo North for nine years and worked at the DEA for two
years investigating narcotics crimes. His training and experience at the
border, as well as his specialized work investigating narcotics crimes support
his suspicions here. 19
From this extensive experience, Agent Stauffiger noticed
irregularities with Nelson’s vehicle. He knew the seal on Nelson’s trailer was
likely incompatible with a scan that seemingly showed a small amount of
personal equipment inside. He also knew the VACIS images of Nelson’s
trailer were consistent with images of bundles of narcotics, facts further
supporting Stauffiger’s suspicion that Nelson was engaged in illegal
activity. 20
17
United States v. Zapata-Ibarra, 212 F.3d 877, 882 (5th Cir. 2000) (internal
quotation marks and citation omitted).
18
Freeman, 914 F.3d at 345.
19
See Garza, 727 F.3d at 441 (noting the relevance of training in analyzing an
agent’s experience); Zapata-Ibarra, 212 F.3d at 882 (concluding that Border Patrol agent
with ten years of experience in the same area weighed in favor of finding reasonable
suspicion existed).
20
See United States v. Nichols, 142 F.3d 857, 871 (5th Cir. 1998) (“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.”); United States v. Ramirez-Mendoza, 657 F.
App’x 298, 300 (5th Cir. 2016) (per curiam) (unpublished) (concluding that agents’
witnessing bundles of suspected narcotics being delivered to private property where vehicle
had travelled weighed in favor of reasonable suspicion to stop vehicle).
9
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Nelson points out that his consent to the initial scan weighs against a
finding of reasonable suspicion, and we agree; 21 that the Government’s
failure to produce evidence related to other Brignoni-Ponce factors suggests
that Stauffiger lacked reasonable suspicion to stop Nelson’s vehicle. But we
have repeatedly counselled that “not every factor must weigh in favor of
reasonable suspicion for it to be present.” 22 Here, just 29 miles from the
border, a highly experienced Border Patrol agent noticed anomalies with
Nelson’s vehicle and saw what appeared to be bundles of narcotics inside.
Accepting Nelson’s compliant behavior, viewing the totality of the
circumstances in the light most favorable to the Government, we are satisfied
that Stauffiger’s stop of Nelson’s vehicle was supported by reasonable
suspicion.
IV.
Next, Nelson challenges the district court’s denial of his motion to
suppress statements he made to Agent Stauffiger while waiting for the canine
unit to arrive, arguing that he was in custody and therefore entitled to
Miranda warnings prior to being questioned.
Generally, a suspect’s incriminating statements during a custodial
interrogation are inadmissible if he has not first received Miranda warnings. 23
“A suspect is ‘in custody’ for Miranda purposes when placed under formal
arrest or when a reasonable person in the suspect’s position would have
understood the situation to constitute a restraint on freedom of movement of
the degree which the law associates with formal arrest.” 24 “The requisite
21
Cf. United States v. Resendez, 578 F.2d 1041, 1044 (5th Cir. 1978) (“When the
actions of a vehicle indicate flight from law enforcement officers, this court has upheld
stops based on reasonable suspicion.”).
22
United States v. Cervantes, 797 F.3d 326, 329 (5th Cir. 2015) (citing Garza, 727
F.3d at 440).
23
Missouri v. Seibert, 542 U.S. 600, 608 (2004).
24
United States v. Wright, 777 F.3d 769, 774 (5th Cir. 2015) (cleaned up).
10
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restraint on freedom is greater than that required in the Fourth Amendment
seizure context.” 25 Whether a suspect is in custody is an objective
determination, depending on the totality of the circumstances, that looks to
the circumstances surrounding the interrogation and whether, given the
circumstances, a reasonable person would have felt he was at liberty to
terminate the interrogation and leave. 26 “[T]his court has repeatedly
considered certain key details when analyzing whether an individual was or
was not in custody,” including (1) the length of the questioning; (2) the
location of the questioning; (3) the accusatory, or non-accusatory, nature of
the questioning; (4) the amount of restraint on the individual’s physical
movement; and (5) statements made by officers regarding the individual’s
freedom to move or leave. 27
These factors support the finding that Nelson was not in custody at
the time Stauffiger questioned him. Nelson was only questioned for two
minutes, 28 on the side of the highway, visible to those driving past. 29 Agent
Stauffiger’s questioning was never hostile or accusatory: his tone was
cooperative and he never accused Nelson of lying or committing a crime. 30
Finally, Nelson was not handcuffed or otherwise physically restrained—he
25
Id.26
Id.27
Id. at 775.
28
See United States v. Ortiz, 781 F.3d 221, 233 (5th Cir. 2015) (interview lasting
between twenty to forty minutes in car did not weigh in favor of conclusion that suspect
was in custody).
29
See id. at 231 (“The fact that an interview takes place in a public location weighs
against the conclusion that a suspect is in custody.”).
30
Cf. United States v. Chavira, 614 F.3d 127, 134 (5th Cir. 2010) (concluding that
customs officers engaged in accusatory questioning when they began asking suspect
“questions unrelated to her entry” and told her “they knew she was not telling the truth
and to confess”).
11
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answered Stauffiger’s questions while leaning against the hood of the agent’s
vehicle. 31
While Nelson makes much of the fact that he was not free to leave
while waiting for the canine unit, this Court has recognized that temporary
detention, by itself, does not automatically rise to the level of custodial
interrogation. 32 A reasonable person in Nelson’s position would have
understood that “so long as . . . everything checked out,” he would be able
to leave shortly. 33 Such limited restraint is not the type associated with formal
arrest. 34
We conclude that Nelson was not subject to custodial interrogation
and therefore was not entitled to Miranda warnings. The district court did
not err in declining to suppress his statements.
V.
Finally, Nelson argues that Border Patrol agents lack authority to
conduct roving stops related to non-immigration offenses. But as Nelson
concedes, this argument is foreclosed by this Court’s precedent recognizing
that Border Patrol agents possess authority under Brignoni-Ponce to “make
roving stops on the basis of reasonable suspicion of any criminal activity.” 35
VI.
We affirm the district court’s denial of Nelson’s motion to suppress.
31
Cf. United States v. Cavazos, 668 F.3d 190, 194 (5th Cir. 2012) (determining that
handcuffing of suspect demonstrated that officers had “physical dominion” over him).
32
See United States v. Bengivenga, 845 F.2d 593, 597-98 (5th Cir. 1988) (en banc).
33
See id. at 600.
34
See id.35
United States v. Perkins, 352 F.3d 198, 200 (5th Cir. 2003) (relying on United
States v. Cortez, 449 U.S. 411, 421-22 (1981)) (emphasis added).
12