United States v. Rodolfo Garcia, Jr. ( 2018 )

Case: 17-50756 Document: 00514739892 Page: 1 Date Filed: 11/28/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-50756 FILED
Summary Calendar November 28, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
RODOLFO RIVERO GARCIA, JR.,
Defendant−Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 4:17-CR-11-1
Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
Rodolfo Rivero Garcia, Jr., entered a conditional guilty plea to aiding and
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
Case: 17-50756 Document: 00514739892 Page: 2 Date Filed: 11/28/2018
No. 17-50756
abetting the possession with intent to distribute 100 kilograms or more, but
less than 1,000 kilograms, of marihuana. He appeals the denial of his motion
to suppress the fruits of a warrantless stop of his vehicle by Border Patrol
agents in Balmorhea, Texas, contending that there was no reasonable suspi-
cion for the stop. Finding no error, we affirm.
We review the district court’s legal conclusions, including whether there
was reasonable suspicion, de novo. See United States v. Cervantes, 797 F.3d
326, 328 (5th Cir. 2015). The evidence presented at a suppression hearing is
viewed in the light most favorable to the prevailing party, here the govern-
ment. See id. Factual findings are reviewed for clear error. See id.In determining whether reasonable suspicion exists in the context of rov-
ing Border Patrol stops, we examine the totality of the circumstances and
weigh the factors in United States v. Brignoni-Ponce, 422 U.S. 873, 884−85
(1975). Cervantes, 797 F.3d at 329. The factors include (1) the area’s proximity
to the border; (2) the characteristics of the area; (3) usual traffic patterns;
(4) the agents’ experience in detecting illegal activity; (5) the driver’s behavior;
(6) characteristics of the vehicle; (7) recent illegal trafficking of aliens or nar-
cotics in the area; and (8) the number of passengers and their appearance and
behavior. Id.
In this case, although the important proximity-to-the-border factor is not
present, given that the stop occurred between 50 and 100 miles from the
Mexico-United States border, a careful examination of the remaining factors
supports the determination that the agents had a reasonable suspicion of ille-
gal activity sufficient to make the traffic stop. See id. at 330. As articulated
by the district court, the testimony showed that the characteristics of the area,
the agents’ experience, and information about recent illegal alien and narcotics
smuggling in the area contributed to reasonable suspicion. Indeed, the agents
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Case: 17-50756 Document: 00514739892 Page: 3 Date Filed: 11/28/2018
No. 17-50756
who stopped Garcia’s vehicle had a combined Border Patrol experience of
30 years and, on the night in question, had been briefed about a significant
increase in activity in the Marfa and Alpine areas to the south. See United
States v. Ramirez, 839 F.3d 437, 440 (5th Cir. 2016) (stating that experience is
entitled to “significant weight”). In addition, the agents had been informed by
their supervisor, after running a search of the Treasury Enforcement Com-
munications System database, that both registered owners of the vehicle had
“a lot” of alerts for narcotics smuggling.
Also weighing in favor of reasonable suspicion were the usual traffic pat-
terns, the driver’s behavior, and the vehicle’s characteristics. Although Garcia
contends his behavior was consistent with safe driving habits, he ignores the
agent’s testimony that he tapped his brakes and reduced his speed even though
the merge onto the interstate was gradual, and further, that he failed to take
the most direct route to Tyler, Texas (where the vehicle was registered). See
United States v. Zapata-Ibarra, 212 F.3d 877, 883−84 (5th Cir. 2000). “Factors
that ordinarily constitute innocent behavior may provide a composite picture
sufficient to raise reasonable suspicion in the minds of experienced officers.”
United States v. Jacquinot, 258 F.3d 423, 427−28 (5th Cir. 2001). Finally, the
vehicle’s darkly tinted windows contributed to reasonable suspicion because
they prevented the agents from allaying their other suspicions. See United
States v. Guerrero-Barajas, 240 F.3d 428, 433 (5th Cir. 2001).
Considering the totality of these circumstances and the Brignoni-Ponce
factors collectively, there was reasonable suspicion to stop Garcia’s vehicle.
The judgment is AFFIRMED.
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