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United States v. Freeman

United States Court of Appeals, Fifth Circuit

January 25, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellant
v.
JEFFREY LOUIS FREEMAN, Defendant-Appellee

          Appeal from the United States District Court for the Southern District of Texas

          Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.

          JAMES E. GRAVES, JR., CIRCUIT JUDGE:

         This is 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Background of the Area and of Agent Perez

         Agent 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.

         Nevertheless, 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 daily basis."

         Agent 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."[1]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.

         Agent 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.

         B. The February 13, 2017 (Second) Stop

         On 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.

         Agent 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.

         Prior 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.

         While 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.

         Ms. 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.

         C. The Magistrate Judge's Report and Recommendation and the District Court's Order

         The 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.

         The Government appeals the district court's grant of Freeman's motion to suppress as it relates to the February 13th stop.

         II. STANDARD OF REVIEW

         In 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).

         III. DISCUSSION

         A. Reasonable Suspicion for Roving Patrol Stops

         "The 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)).

         In 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 behavior.

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.

         B. Application of the Brignoni-Ponce Factors to the District Court's Findings of Fact

         While 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.

         1. Proximity to the Border

         "[O]ne 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.

         The 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.

         Freeman 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.

         2.Usual Traffic Patterns, Recent Illegal Activity, and Passengers

         Agent 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 reasonable suspicion.

         3.Freeman's ...


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