United States v. Salazar , 178 F. App'x 397 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 3, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-51334
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-
Appellee,
versus
JOSE INES SALAZAR,
Defendant-
Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:04-CR-156-1
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Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Ines Salazar appeals the denial of his motion to suppress after conditionally pleading
guilty to transporting an illegal alien for commercial advantage or private financial gain. Salazar
argues that Border Patrol agents Shawn Hiltz and Samuel Arredondo did not have reasonable
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
suspicion that his vehicle was involved in criminal activity sufficient to justify the traffic stop that led
to his arrest.
A Border Patrol agent conducting a roving patrol may stop a vehicle for purposes of a
temporary investigation “if the officer’s action is supported by reasonable suspicion to believe that
criminal activity may be afoot.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal
quotation marks omitted). We review the district court’s reasonable suspicion determination de
novo, United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). Factors that “may be”
considered in the reasonable suspicion analysis include:
(1) proximity to the border; (2) characteristics of the area; (3) usual
traffic patterns; (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.
Jacquinot, 258 F.3d at 427 (citing United States v. Brignoni-Ponce, 422 U.S. 873, 884-85 (1975)).
Salazar asserts that the district court erroneously ruled that his vehicle was close to the border
by measuring the vehicle’s direct distance from the border instead of its distance from the border by
road. We need not decide here whether distance from the border should be measured directly or by
road because, even examining the remaining factors charily, the totality of the circumstances support
the district court’s determination that reasonable suspicion did exist. See United States v. Salazar-
Martinez, 710 F.2d 1087, 1088 (5th Cir. 1983).
The district court properly relied upon the following facts in concluding that there was
reasonable suspicion: Salazar was traveling on Highway 85, a common smuggling route that avoids
immigration checkpoints, shortly after midnight; Agent Hiltz did not recognize the vehicle as a local
vehicle; and the registration check on Salazar’s vehicle revealed that it was registered near Dallas.
See Jacquinot, 258 F.3d at 429; United States v. Villalobos, 161 F.3d 285, 289 (5th Cir. 1998).
Agent Hiltz had five years of experience as a Border Patrol agent in the area. See United States v.
Cardona, 955 F.2d 976, 978, 981 (5th Cir. 1992). Salazar was driving well below the speed limit,
applied his brakes rapidly when he first encountered the agents’ marked patrol vehicle, slowed down
and pulled to the side of the road to allow the agents to pass, and fell further back when the agents
slowed down to allow him to pass. See Jacquinot, 258 F.3d at 429; Villalobos, 161 F.3d at 291.
Salazar’s vehicle was a newer model Suburban with darkly tinted windows and excessive visible
condensation despite containing only two visible occupants. See United States v. Garcia, 732 F.2d
1221, 1225 (5th Cir. 1984) (heavy condensation); Villalobos, 161 F.3d at 289-90 (darkly tinted
windows); Salazar-Martinez, 710 F.2d at 1088 (large vehicle).
Given the characteristics of the area, the usual traffic patterns, Agent Hiltz’s experience in the
area, the driver’s behavior, and the characteristics of the vehicle, the totality of the circumstances
supported the district court’s finding of reasonable suspicion, even if the proximity to the border
factor was not satisfied. See United States v. Aldaco, 168 F.3d 148, 152 (5th Cir. 1999). Salazar’s
argument that each of the circumstances supporting the reasonable suspicion finding are equally
consistent with innocent behavior as they are with criminal activity is tantamount to the “divide and
conquer” strategy that has been rejected by the Supreme Court. See Arvizu, 534 U.S. at 273-76.
Salazar has failed to show that the agents were predisposed to stop any vehicle traveling on Highway
85. See United States v. Inocencio, 40 F.3d 716, 723 (5th Cir. 1994). Furthermore, Salazar’s
contention regarding the subjective motivation of the agents is misplaced because the reasonable
suspicion determination depends upon the objective facts known to them at the time of the stop, not
their subjective motivation for making the stop. See United States v. Melendez-Gonzalez, 727 F.2d
407, 412 (5th Cir. 1984). The district court did not err by denying the motion to suppress.
AFFIRMED.