from the United States District Court for the Southern
District of Texas
HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
E. GRAVES, JR., CIRCUIT JUDGE:
an interlocutory appeal of the grant of a motion to suppress.
Defendant-Appellee Jeffrey Louis Freeman
("Freeman") was stopped twice over the course of
several months while driving his truck along Farm-to-Market
Road 2050 ("FM 2050") near the Texas-Mexico border,
once by a county deputy and once by U.S. Border Patrol Agent
Carlos Perez. Freeman was charged with conspiracy to
transport an illegal alien within the United States, 8 U.S.C.
§ 1324(a)(1)(A)(ii) and (v)(I), and transportation of an
alien within the United States for financial gain, 8 U.S.C.
§ 1324(a)(1)(A)(ii) and (v)(II). Freeman filed a motion
to suppress evidence obtained from both stops. The magistrate
judge held an evidentiary hearing on the motion and
recommended the district court grant Freeman's motion as
to the first stop but deny his motion as to the second stop.
The district court adopted the magistrate judge's
recommendation as to the first stop, but not as to the second
stop, granting Freeman's motion to suppress as to both
stops. The Appellant-Government appeals the district
court's ruling as to the second stop only. For the
reasons discussed below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Background of the Area and of Agent Perez
Perez's testimony made up a significant portion of the
suppression hearing before the magistrate judge. He testified
that he had been a Border Patrol agent at the Freer, Texas
immigration checkpoint for over eight years. His duties at
the checkpoint consisted of working the inspection lanes and
conducting immigration inspections on vehicles that approach
the checkpoint. Agent Perez testified that the Freer
checkpoint is about 50 miles from the border of the United
States and Mexico and approximately 43 miles from Laredo,
Texas. It sits on U.S. Highway 59, just north of where FM
2050 deadends into Highway 59. If a motorist traveling north
on Highway 59 turned right (south) onto FM 2050, he would
avoid the Freer checkpoint. Agent Perez testified that
turning right onto FM 2050 from Highway 59 will add about an
hour onto a trip from Laredo to Houston. It is undisputed
that FM 2050 is known for alien and contraband smuggling.
there are legitimate reasons to be on FM 2050. Agent Perez
testified that there are homes, ranches, and businesses along
the road. When pressed by the magistrate judge, he guessed
there were perhaps a dozen homes, in addition to a wind farm,
oil and gas concerns, and other ranches. Agent Perez
testified he was familiar with some of the vehicles belonging
to homeowners and people who worked on the road, but he was
not familiar with all the vehicles. Over the eight years that
he worked at the Freer checkpoint, Agent Perez had driven on
FM 2050 "numerous times," sometimes "on a
Perez confirmed that no vehicle is stopped prior to turning
down FM 2050, but once a vehicle makes the turn, Border
Patrol "attempt to chase down the vehicle and conduct a
roving stop" to see if there are any immigration
violations occurring. When asked by the Government if the
agents were "actually stopping every single
vehicle," Agent Perez answered, "Yes,
sir."Agent Perez explained these stops generally
transpired as follows: an agent on the primary inspection
lane, upon seeing a vehicle turn south on FM 2050, alerts an
agent inside the checkpoint who comes out and attempts to
chase down the vehicle. Once the pursuing agent finds the
vehicle matching the description of the vehicle the primary
agent called out, he attempts to run a registration check to
determine where the vehicle is from, as it is uncommon for
vehicles from out of the area to be traveling down FM 2050.
While following the vehicle, the agent will observe the
vehicle speed, "the driving of the vehicle," and
how the driver is reacting to being pursued.
Perez estimated the Border Patrol made approximately ten to
twenty roving stops per week on FM 2050. He estimated that he
had only conducted approximately twenty to thirty stops
throughout his eight years there, and only two or three of
those stops resulted in seizures.
The February 13, 2017 (Second) Stop
February 13, 2017, Agent Perez was working inside the Freer
checkpoint rather than on the inspection lanes. Around 4:10
p.m., an agent called out that a white Chevy pickup truck
turned onto FM 2050 and Agent Perez and his partner got into
the pursuit vehicle and attempted to chase down the truck.
Agent Perez estimated it took him and his partner about
twenty seconds to walk to their vehicle, and another ten
seconds to turn onto FM 2050. Agent Perez thought it took him
"[p]erhaps five minutes" to catch up to the truck
and that he traveled "about over 100 miles an hour"
to reach it, although he had slowed down to "[p]erhaps
70 miles" per hour when he caught up to the truck. While
Agent Perez testified that he checked his odometer
frequently, he also stated twice that he was not sure if the
truck was speeding.
Perez noted the road was windy and hilly, but that it
appeared to him the truck was swaying side to side within the
lane and creating dust clouds from driving on the soft
shoulder of the road. While Agent Perez testified he
couldn't remember any construction signs on the road at
the time of the stop, the Government stipulated before the
hearing began that the road was under construction.
to conducting the stop, Agent Perez testified his partner
contacted radio dispatch to run a check on the truck's
paper license plate. He initially testified that the paper
plate made no difference to him, although after considerable
prompting by the magistrate judge, Agent Perez stated that
paper license plates are often used by smugglers to avoid
suspicion or inspection. What did make a difference to Agent
Perez was the fact that the vehicle was registered to an
individual (Freeman, it turned out) out of Houston, Texas.
Agent Perez noted it is uncommon to see vehicles based out of
Houston on FM 2050 because it is not a direct route to
Houston. However, nothing else stood out to Agent Perez about
the truck; it was the type of vehicle commonly used by oil
and gas companies on FM 2050.
in pursuit of Freeman, Agent Perez could not see into the
back of the truck but was able to see Freeman's face in
the side view mirror. He thought Freeman appeared to be
nervous because he seemed to be glancing into the side mirror
several times. Agent Perez activated his emergency lights and
conducted a patrol stop. Agent Perez testified the stop
occurred approximately nine miles from the checkpoint, but
during the hearing defense counsel presented Agent Perez with
maps indicating the stop was closer to 7.6 miles from the
checkpoint. The stop occurred approximately nine and a half
minutes after Freeman's truck was called out. After Agent
Perez stopped Freeman, Agent Perez's partner discovered
there was a passenger in Freeman's truck, Ms. Miriam
Edith Rivera-Quintero. Ms. Rivera-Quintero did not have any
legal status to be in the United States.
Rivera-Quintero testified at the suppression hearing that
Freeman appeared to be driving at a normal rate of speed and
that he only veered off the road when he was stopped by the
agents. She also believed his behavior to be normal and that
everything seemed to be fine prior to the car being stopped
and the policemen coming up to the truck. However, Ms.
Rivera-Quintero testified that she looked at pictures on her
phone for much of the trip in an effort to calm herself.
The Magistrate Judge's Report and Recommendation and the
District Court's Order
magistrate judge issued a written report and recommendation,
recommending the district court, after an independent review
of the record, grant in part Freeman's motion to suppress
as it related to the first stop, but deny in part his motion
as it related to the February 13, 2017 stop. Freeman filed
timely objections, and the district court reviewed the entire
record de novo. The district court agreed
with the recommendation as to the first stop, but disagreed
with the recommendation as to the February 13th stop, finding
the analysis in Freeman's objections to be persuasive.
While the district court noted that Agent Perez admitted to
conducting roving patrol stops of all vehicles turning onto
FM 2050 from Highway 59, the court said its decision did not
hinge solely on that admission and was merely one aspect
taken into consideration. At a later hearing regarding the
detention of a material witness pending the instant appeal,
the district court stated it found Ms. Rivera-Quintero's
testimony about Freeman's driving to be truthful. The
district court also found that "the math did not add
up" with respect to Freeman's speed, and that the
agents never actually witnessed Freeman speeding. The
district court found there to be "nothing evasive about
the way that he was driving," and that the dust being
kicked into the air was "as good as it got." The
district court characterized the stop as a "fishing
expedition" and commented that had the agents been a
little more patient and stayed behind the vehicle longer,
they could probably have developed reasonable suspicion.
Government appeals the district court's grant of
Freeman's motion to suppress as it relates to the
February 13th stop.
STANDARD OF REVIEW
considering a district court's ruling on a motion to
suppress, we review the district court's findings of fact
for clear error and its conclusions of law, including its
determination regarding the presence of reasonable suspicion,
de novo. United States v. Cervantes, 797
F.3d 326, 328 (5th Cir. 2015); United States v.
Lopez-Moreno, 420 F.3d 420, 429 (5th Cir. 2005) (citing
United States v. Hicks, 389 F.3d 514, 526 (5th
Cir.2004)). We view the evidence in the light most favorable
to the party prevailing below-here, Freeman.
Cervantes, 797 F.3d at 328; Lopez-Moreno,
420 F.3d at 429 (citing United States v. Shelton,
337 F.3d 529, 532 (5th Cir.2003)). We must defer to the
findings of historical fact made by the district court unless
left with the "definite and firm conviction that a
mistake has been committed." Payne v. United
States, 289 F.3d 377, 381 (5th Cir.2002). While this
court reviews the district court's legal determination
that the historical facts provided reasonable suspicion
de novo, "due weight" must be given to the
"inferences drawn from those facts by resident judges
and local law enforcement officers." Ornelas v.
United States, 517 U.S. 690, 699 (1996). "The
district court's ruling should be upheld if there is any
reasonable view of the evidence to support it."
United States v. Ortiz, 781 F.3d 221, 226 (5th Cir.
2015) (quoting United States v. Scroggins, 559 F.3d
433, 440 (5th Cir. 2010)) (internal quotation marks omitted).
Reasonable Suspicion for Roving Patrol Stops
Fourth Amendment prohibits 'unreasonable searches and
seizures' by the Government, and its protections
extend" to roving patrol stops by U.S. Border Patrol
agents. United States v. Arvizu, 534 U.S. 266, 273
(2002) (citing Terry v. Ohio, 392 U.S. 1, 9 (1968);
United States v. Cortez, 449 U.S. 411, 417 (1981)).
"To temporarily detain a vehicle for investigatory
purposes, a Border Patrol agent on roving patrol must be
aware of 'specific articulable facts' together with
rational inferences from those facts, that warrant a
reasonable suspicion that the vehicle is involved in illegal
activities, such as transporting undocumented
immigrants." United States v. Rangel-Portillo,
586 F.3d 376, 379 (5th Cir. 2009) (quoting United States
v. Chavez-Chavez, 205 F.3d 145, 147 (5th Cir. 2000)).
United States v. Brignoni-Ponce, 422 U.S. 873,
884-85 (1975), the Supreme Court outlined several factors to
be considered when determining if reasonable suspicion
exists. The Brignoni-Ponce factors include:
(1) the area's proximity to the border; (2)
characteristics of the area; (3) usual traffic patterns; (4)
the agents' experience in detecting illegal activity; (5)
behavior of the driver; (6) particular aspects or
characteristics of the vehicle; (7) information about recent
illegal trafficking of aliens or narcotics in the area; and
(8) the number of passengers and their appearance and
Cervantes, 797 F.3d at 329 (quoting United
States v. Soto, 649 F.3d 406, 409 (5th Cir. 2011)).
"No single factor is determinative; the totality of the
particular circumstances known to the agents are examined
when evaluating the reasonableness of a roving border patrol
stop." United States v. Hernandez, 477 F.3d
210, 213 (5th Cir. 2007). The primary elements "of a
determination of reasonable suspicion or probable cause will
be the events which occurred leading up to the stop or
search, and then the decision whether these historical facts,
viewed from the standpoint of an objectively reasonable
police officer, amount to reasonable suspicion or to probable
cause." Ornelas, 517 U.S. at 696-97.
Application of the Brignoni-Ponce Factors to the
District Court's Findings of Fact
the magistrate judge concluded the facts supported reasonable
suspicion, in making a de novo determination of the
factual findings and legal conclusions, the district came to
the opposite conclusion. The district court did not
explicitly make any factual findings in its order, but stated
it found persuasive Freeman's objections to the
magistrate judge's report, which largely contested the
report's conclusions rather than its factual findings.
The district court further explained its reasoning at a later
hearing. The Government argues the district court clearly
erred by not applying the totality of the circumstances test,
noting that Freeman's objections went through the
Brignoni-Ponce factors in isolation rather than as a
laminated whole. The Government also complains that the
district court inappropriately considered the fact that the
agents were stopping every car that turned right onto FM
2050. Freeman maintains the district court correctly examined
the Brignoni-Ponce factors in totality and properly
weighed the factors.
Proximity to the Border
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." United States v. Melendez-Gonzalez,
727 F.2d 407, 411 (5th Cir. 1984). "[A] car traveling
more than 50 miles from the border is usually viewed as being
too far from the border to support an inference that it
originated its journey there." United States v.
Jacquinot, 258 F.3d 423, 428 (5th Cir. 2001) (per
curiam) (citing United States v. Zapata-Ibarra, 212
F.3d 877, 881 (5th Cir. 2000)). "If there is no reason
to believe that the vehicle came from the border, the
remaining factors must be examined charily." United
States v. Olivares-Pacheco, 633 F.3d 399, 402 (5th Cir.
2011). While this court does not adhere to a bright line test
regarding proximity, the proximity element can be satisfied
"if the defendant's car was first observed within 50
miles of the United States/Mexico border, but was stopped
more than 50 miles from the border." Jacquinot,
258 F.3d at 428.
facts here are essentially undisputed-Freeman's truck was
spotted less than 50 miles from the border and was stopped
more than 50 miles from the border. Because the truck was
spotted less than 50 miles from the border, the proximity
element is satisfied. Nevertheless, this fact alone cannot
support reasonable suspicion, "otherwise, law
enforcement agents would be free to stop any vehicle on
virtually any road anywhere near the Texas-Mexico
border." Rangel-Portillo, 586 F.3d at 380
(quoting United States v. Diaz, 977 F.2d 163, 165
(5th Cir. 1992)). We must determine de novo how much
weight to give this factor.
argues that because his truck was seen and stopped so close
to the 50-mile benchmark, Agent Perez should have had
additional independent indicia that Freeman had recently
crossed the border and therefore this factor should receive
little weight. While there are not many towns between Laredo
and Freer along Highway 59, we 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. See
Melendez-Gonzalez, 727 F.2d at 411 ("If a vehicle
is already past towns in this country, the mere fact that it
is proceeding on a public highway leading from the border is
not sufficient cause to believe the vehicle came from the
border."); see also Rangel-Portillo, 586 F.3d
at 380-81 (stop within 500 yards of border was not supported
by reasonable suspicion even where stop was conducted in area
known for illegal alien smuggling). Accordingly, while we
conclude that the stop occurred within proximity to the
border, proximity here carries its weight only where there
are other factors present which suggest illegal activity. As
we shall explore below, that is not the case here.
Traffic Patterns, Recent Illegal Activity, and
Perez testified that the traffic patterns on February 13,
2017 were not unusual for the area. It is also undisputed
that there was no recent information about illegal
trafficking in the area prior to the agents pursuing Freeman.
Further, Agent Perez and his partner did not see any
passengers in the truck prior to stopping Freeman.
Consequently, none of these factors weigh in favor of