United States v. Heredia , 677 F. Supp. 895 ( 1987 )

MEMORANDUM AND ORDER

KAZEN, District Judge.

The Court is again required to determine the legality of a stop made by a roving Border Patrol. According to United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), the Border Patrol agents may consider the following objective factors in determining whether a stop is justified: (1) characteristics of the area where the vehicle is encountered; (2) proximity to the border; (3) usual patterns of traffic on the road; (4) previous experience with alien traffic; (5) information about recent illegal crossings in the area; (6) behavior of the driver; (7) appearance of the vehicle; and (8) number, appearance and behavior of the passengers. 422 U.S. at 885, 95 S.Ct. at 2582.

The following factors were involved in this case. Defendant was driving an old pickup truck with a camper shell, a type of vehicle frequently used for alien smuggling. Defendant's vehicle was encountered 30 miles south of Hebbronville, Texas, an area where extremely large numbers of both alien trafficking and narcotics smuggling vehicles have been stopped. The stop occurred between 2:00 to 3:00 a.m. on Highway 1017. There is very little traffic on this highway even in daytime hours, and it consists of ranchers and oilfield workers. The agents making this stop had become familiar with most of the vehicular traffic on this road. In the wee hours of the morning, the traffic is almost nonexistent. It is particularly rare to see a vehicle with out-of-state license plates because of the remoteness of the area and the absence of any service stations or indeed any other activity anywhere along the road. The vehicle also appeared to be riding low, even though no baggage or equipment could be seen through the camper shell. It was subsequently determined that 12 persons were lying in the bed of the pickup truck, in addition to the 4 in the cab.

No one factor determines the legality of the search. It is “the totality of the circumstances” that must be taken into account. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). Every case turns on its own facts. This case, as true with many others, is a close call. Nevertheless the combination of the time and place where the vehicle was encountered, the normal traffic patterns in the area, the type and appearance of the vehicle, and the previous experience with alien trafficking in the area would reasonably lead the agents to suspect that the vehicle contained aliens illegally in the country. United States v. Garcia, 732 F.2d 1221 (5th Cir.1984); United States v. Henke, 775 F.2d 641 (5th Cir.1985). The motion is DENIED.