USA vs. Resendiz, (5th Cir. 2006)

Text

---

United States Court of Appeals

Fifth Circuit

FILED

In the August 8, 2006

United States Court of Appeals Charles R. Fulbruge III

for the Fifth Circuit Clerk

m 05-50490

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

EDUARDO HERNANDEZ,

Defendant-Appellant.

***************

m 05-50493

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JUAN CARLOS DIAZ,

Defendant-Appellant.

***************

m 05-50494 UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS JONATHAN SANCHEZ, Defendant-Appellant.

m 05-50495 UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS GERARDO RESENDIZ, Defendant-Appellant.

2 m 05-50496 UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS CRISTIAN FELIPE QUEVEDO, Defendant-Appellant.

Appeals from the United States District Court for the Western District of Texas m 2:03-CR-253-2 Before SMITH, GARZA, and CLEMENT, of illegal smuggling activity. We affirm.

Circuit Judges.

I.

JERRY E. SMITH, Circuit Judge:* On the morning of March 5, 2003, each of the appellants, as well as two other defendants, Eduardo Hernandez, Juan Diaz, Jonathan Michael Santoyo and Luis Alvarez, were Sanchez, Gerardo Resendiz, and Cristian Que- driving on highways in the vicinity of Dryden, vado appeal the partial denial of their motion Texas. The vehicles operated by the to suppress, on Fourth Amendment grounds, defendants were pick-up trucks, extended-cab evidence obtained pursuant to the Border Pa- trucks, and SUV's. trol's roving stop of their vehicles on suspicion Border Patrol and Bureau of Immigration and Customs Enforcement ("BICE") agent s * Pursuant to 5TH CIR. R. 47.5, the court has stopped each of the vehicles within fifty miles determined that this opinion should not be pub- of the Mexican border based on suspicious aclished and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. tivity they had observed.1 Between about 4:20 convinced that the defendants were part of the and 5:20 a.m. the agents watched the vehicles, N o la s c o - R e s e n d i z Organization, an apparently operating in tandem, drive first to- alien-smuggling operation based in Houston ward and then away from the border. Because and known for employing tactics similar to (1) the number of vehicles was highly unusual what the agents had observed. for the normally-deserted roads in the area, especially given the time of day, (2) the vehicles Because of this suspicion, the agents, who followed one another (approximately one mile already had placed Resendiz and Sanchez in apart), making all of the same turns, (3) each patrol cars, took the keys from the remaining of the vehicles had a CB radio antenna (a defendants and placed them on the hood of known characteristic of smuggling convoys), each car while defendants remained in their ve(4) some of the drivers appeared to be spying hicles. The agents then decided to take Reon or attempting to distract the attention of sendiz and Sanchez to the Sanderson Border law enforcement, and (5) the roads on which Patrol Station and, returning their keys, told the vehicles were traveling were notorious the remaining defendants to follow them there. drug- and alien-smuggling routes, the agents At the station, defendants were handcuffed to eventually pulled each vehicle over and ques- their steering wheels. The agents led them tioned each driver regarding his travel plans. inside the station one at a time for further questioning.

After learning the defendants' identities, listening to their imprecise descriptions of their During questioning, Santoyo told the travel plans, detecting a pungent body odor in agents that he and the others were in the proone of the vehicles, and discovering CB radios, cess of smuggling aliens that morning. Sanmultiple cell phones, a tarp, and water jugs in toyo also gave the agents the possible location two of the vehicles,2 the agents became of illegal aliens that he and the other defen dants had dropped off on the side of the high way to avoid being caught by law enforce ment. A large group of aliens was subsequent 1 The officers who observed the relevant activi ly found in the area Santoyo had specified. ties and were involved in stopping the vehicles were BICE special agent Adam Wilson, BICE criminal Defendants were indicted for transporting investigator Armando Montes, Jr., and Border illegal aliens in violation of 8U.S.C. § 1324 Patrol agents Kelly Helms and Santiago Gonzalez.

At the time, Wilson had five and one-half years of and aiding and abetting the same in violation experience as a BICE agent, preceded by three of 18U.S.C. § 2. Santoyo pleaded guilty of years of experience as a Border Patrol agent. the first count of the t hree-count indictment, Montes had been a criminal investigator with BICE charging him with aiding and abetting the ilfor seven years, and before that was a Border legal transportation of aliens in violation of P atrol agent for six years. Gonzalez had been §§ 1324(a)(1)(a)(ii) and(a)(2). The remaining employed by Border Patrol for fifteen years.

Helms had three years of experience as a Border Patrol agent.

(...continued) 2 The validity of the initial search of the two of whether the stop of each vehicle was supported relevant vehicles, separate from the larger question by a reasonable suspicion of criminal activity, is (continued...) not an issue in this case. defendants, Hernandez, Diaz, Sanchez, Resen- press: Factual findings are accepted unless diz, Quevado, and Alvarez, filed a motion to clearly erroneous, and the district court's ultisuppress all evidence against them, arguing mate conclusion as to t he constitutionality of that the initial investigatory stops of t heir ve- law enforcement action is reviewed de novo." hicles were not supported by a reasonable sus- United States v. Jackson, 390 F.3d 393, 396 picio n of criminal activity and that their con- (5th Cir. 2004), vacated, 544 U.S. 917 (vacattinued detent ion constituted unlawful arrests ing judgment in light of Booker), judgment without probable cause. The motion sought to reinstated, 138 F. App'x 632 (5th Cir.), cert. suppress even the statements of Santoyo, who denied, 126 S. Ct. 317 (2005). neither joined the motion nor otherwise challenged his stop or arrest. "The Fourth Amendment prohibits `unrea sonable searches and seizures' by the Govern The district court granted in part and de- ment, and its protections extend to brief invesnied in part the motion to suppress. The court tigatory stops of persons or vehicles that fall ruled that each initial stop was supported by short of traditional arrest." United States v. reasonable suspicion and that all information Arvizu, 534 U.S. 266, 273 (2002). "A United discovered during those stops was therefore States Border Patrol agent's temporary detenadmissible. The court also held that the sub- tion of an occupant of a vehicle for investigasequent detentions of the defendants, starting tory purposes while on roving patrol is constiwhen Resendiz and Sanchez were placed in tutional if, at a minimum, the agent reasonably patrol cars and the agents confiscated the car suspects that an occupant of the vehicles is inkeys of the remaining defendants, were unlaw- volved in illegal activity." United States v. ful arrests unsupported by probable cause. Guerrero-Barajas, 240 F.3d 428, 432 (5th The court ruled, however, that t he movants Cir. 2001). did not have standing to contest the admissibility of Santoyo's post-arrest statements be- We agree with the district court that the inicause his arrest did not violate their Fourth tial stop of each defendant was supported by a Amendment rights. reasonable suspicion of criminal activity. In United States v. Brignoni-Ponce, 422 U.S.

Hernandez, Diaz, Sanchez, Resendiz, and 873, 884-85 (1975), the Court explained that Quevado subsequent ly entered conditional guilty pleas, pending the outcome of their ap- [a]ny number of factors may be taken into peal of any suppression issues. These defen- account in deciding whether there is readants now appeal the court's ruling on the val- sonable suspicion to stop a car in the boridity of the initial investigatory stops and on der area. Officers may consider the charactheir standing to challenge the admissibility of teristics of the area in which they encounter Santoyo's statements. The government does a vehicle. Its proximity to the border, the not appeal the court's ruling regarding the un- usual patterns of traffic on the particular lawfulness of the continued detentions. road, and previous experience with alien traffic are all relevant. They also may con II. sider information about recent illegal border "We use a two-tiered standard of review crossings in the area. The driver's behavior for appeals from the denial of a motion to sup- may be relevant, as erratic driving or obvious attempts to evade officers can added). support a reasonable suspicion. Aspects of the vehicle itself may justify suspicion . . . . Accordingly, we adopt the reasoning and In all situations the officer is entitled to as- conclusions of the district court's thorough sess the facts in light of his experience in order of June 4, 2004, and we AFFIRM the detecting illegal entry and smuggling. partial denial of the motion to suppress.

Given the wealth of factors that Border Patrol and BICE agents are allowed to consider, we would be hard-pressed to determine that the actions of the agents in this case were unreasonable. The number, behavior, and characteristics of the defendants' vehicles, particularly considering that the area in which they were traveling was a notorious alien-smuggling route, led the experienced agents to suspect foul play. The agents in fact spent an hour observing the defendants' actions before pulling the vehicles over, gathering enough information to allow what initially may have been a mere hunch to grow into reasonable suspicion.

We likewise agree with the district court that the appellants lack standing to challenge the admissibility of Santoyo's statements on Fourth Amendment grounds. As the district court held, appellants cannot establish that Santoyo's statements were the fruit s of their own illegal arrests; rather, they were the fruits of Santoyo's separate arrest, which he has not challenged. "Fourth Amendment rights are personal rights," and "suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. Coconspirators and codefendants have been accorded no special standing." Alderman v. United States, 394 U.S. 165, 171-72, 174 (1969) (emphasis

---