United States v. Ceniceros

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50793
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSE EFRAIN CENICEROS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
February 16, 2000
Before HIGGINBOTHAM and SMITH,
Circuit Judges, and FALLON, District
Judge.*
FALLON, District Judge:
This appeal follows the conviction of
Jose Efrain Ceniceros for possession of
marijuana with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1). The
issue addressed is whether the seizure of
evidence by a roving border patrol agent
* District Judge of the Eastern District of
Louisiana, sitting by designation.

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following a vehicle stop was supported by
reasonable suspicion consistent with the
Fourth Amendment. On appeal, Ceniceros
contends that the district court erred in
denying his motion to suppress. We affirm.
I.
On November 14, 1997, at the beginning
of his shift, United States Border Patrol
Agent Jeffrey Hampton and his partner,
Agent Francisco Lopez,1 learned of a "be on
the lookout" advisory ("BOLO") issued by
the Brewster County Sheriff’s Office
("BCSO"). The BOLO indicated that a "90s
model" white Chevrolet Lumina driven by a
single Hispanic occupant would be traveling
northbound from Lajitas, Texas, on Highway
118 that afternoon. The BOLO also
provided that the vehicle would be carrying
narcotics. The lookout did not provide
license plate information, and Hampton did
not know when or from what source the
BCSA received the information.
At 3:35 p.m., the agents were heading
southbound on Highway 118, approximately
25 miles south of Alpine, Texas, when they
spotted a northbound white Chevrolet sedan.
Hampton observed that the vehicle’s sole
occupant was a male of Hispanic origin. He
did not recognize the vehicle or its driver as
being local and noted their similarities to the
BOLO. Believing the Chevrolet to be the
subject of the BOLO, Hampton turned his
patrol car around and began following the
vehicle. The agent next called in the
vehicle’s license plate number and requested
a registration check. The vehicle registration
returned valid and listed Cheryl Ewing of
Dallas, Texas as the owner of the vehicle.
Hampton observed that the vehicle was a
four-door white Chevrolet Lumina. He
backed away from the car for further
observation. Highway 118 serves as an
artery for traffic originating from Big Bend
National Park. Hampton testified that most
of the cars departing the park still have the
receipt, or permit sticker, attached to their
windshields. He also testified that park
traffic was considered less likely to be
involved in illegal activity. In this case,
Hampton specifically noticed that the
Lumina’s windshield did not have a sticker
evidencing park visitation. Hampton also
observed that the Lumina’s speed fluctuated
between 55 and 70 miles per hour and that it
drifted back and forth within its lane.
Hampton believed that such action indicated
that the driver was paying closer attention to
the marked patrol car following him than to
the road. During this time, Hampton also
observed that the Lumina’s shocks recovered
slowly as it passed over bumps in the road,
indicating that the vehicle was laden with
cargo.
After following the Lumina for about ten
miles, the agent activated his overhead lights
and pulled the vehicle over at a closed border
checkpoint station south of Alpine. Before
approaching the driver, Hampton leaned on
the back of the Lumina to test the shocks,
which were slow to respond. The agent
testified that the slow response was an
"indication that something was in the trunk."
The agent then approached the driver, later
identified as Ceniceros, and asked about his
citizenship. Ceniceros appeared nervous and
slightly hesitant as he answered that he was a
United States citizen. Ceniceros’ nervous
and delayed response caused Hampton to
doubt its veracity. Hampton asked if
1 Agent Lopez did not testify at the
suppression hearing, and therefore plays no role in
the analysis of this case. All references will be in the
singular (e.g. "the agent," "his vehicle," etc.).

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Ceniceros "had been down south for very
long," to which Ceniceros replied "No." The
agent then asked if he could look in the
Lumina’s trunk, and Ceniceros said "sure."
Ceniceros activated the trunk latch from
inside the vehicle, the trunk opened, and
Hampton immediately smelled marijuana.
Hampton found four flour sacks of marijuana
collectively weighing 206 pounds in the
Lumina’s trunk. Ceniceros was placed under
arrest and advised of his rights. He
subsequently admitted to purchasing the
marijuana in Mexico and smuggling it into
the United States.
Ceniceros was indicted for possession
with intent to distribute marijuana, a
violation of 21 U.S.C. § 841(a)(1). He
moved to suppress the fruits of the roving
patrol stop, arguing that the agents did not
possess the reasonable suspicion required to
make an investigative detention of his
vehicle. After a hearing, the district court
denied Ceniceros’ motion to suppress. The
district court concluded that six factors
collectively provided the requisite reasonable
suspicion to stop Ceniceros: (1) the vehicle’s
proximity to the border; (2) the agent did not
recognize the car as one belonging to a local
resident; (3) the vehicle and its driver fit the
description in the BOLO; (4) the vehicle was
registered to a non-Hispanic female in Dallas
but driven by a Hispanic male in the Big
Bend area; (5) the reaction of the car to
bumps indicated that it was heavily-laden;
and, (6) the vehicle’s drifting pattern within
its lane. Ceniceros entered a conditional plea
of guilty, expressly reserving the right to
appeal the denial of his motion to suppress.
The court accepted the plea and sentenced
Ceniceros to 37 months of imprisonment and
three years of supervised release. This
appeal followed.
II.
A two-tiered standard of review applies
to a district court’s denial of a motion to
suppress after an evidentiary hearing. See
United States v. Wilson, 36 F.3d 1298, 1303
(5th Cir. 1994). A district court’s findings of
fact on a motion to suppress are reviewed
for clear error only, while legal conclusions,
including the ultimate conclusion as to
whether there was reasonable suspicion for
the stop, are reviewed de novo. See United
States v. Villalobos, 161 F.3d 285, 288 (5th
Cir. 1998). The evidence introduced at the
suppression hearing is viewed in the light
most favorable to the prevailing party, in this
case the government. See id. at 288.
III.
Border Patrol agents on roving patrol
may stop a vehicle when they are aware of
specific articulable facts, together with
rational inferences from those facts, that
reasonably warrant suspicion that the
particular vehicle is involved in illegal
activity. See United States v. Brignoni-
Ponce, 422 U.S. 873, 884 (1975);
Villalobos, 161 F.3d at 288. Factors that
may be considered include: (1) the
characteristics of the area in which the
vehicle is encountered; (2) the arresting
agent’s previous experience with criminal
activity; (3) the area’s proximity to the
border; (4) the usual traffic patterns on the
road; (5) information about recent illegal
trafficking in aliens or narcotics in the area;
(6) the appearance of the vehicle; (7) the
driver’s behavior; and, (8) the passengers’
number, appearance and behavior. See
Brignoni-Ponce, 422 U.S. at 884-85.
Reasonable suspicion requires more than a
mere unparticularized hunch, but
considerably less than proof by a
preponderance of the evidence. See United
States v. Gonzalez, 190 F.3d 668, 671 (5th

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Cir. 1999). 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. See United States v. Morales, 191
F.3d 602, 604 (5th Cir. 1999), petition for
cert. filed (Jan. 3, 2000) (No. 99-7729);
Villalobos, 161 F.3d at 288.
The characteristics of the area in which
the vehicle was encountered and the area’s
proximity to the border are important
considerations in the reasonableness
determination. See Villalobos, 161 F.3d at
288-89. Proximity to the border has been
recognized by this court as a factor
supporting reasonable suspicion, even when
the vehicle is more than the benchmark fifty
miles from the border. See Gonzalez, 190
F.3d at 672 (citing Villalobos, 161 F.3d at
289). Close proximity to the border is not
required if other specific articulable facts
support a finding of reasonable suspicion.
See United States v. Aldaco, 168 F.3d 148,
150 (5th Cir. 1999). When encountered by
Agent Hampton, the Lumina was
approximately 70-80 miles from the border.
The district court found that the Lumina’s
physical presence near the border, taken
alone, did not justify a roving stop.
However, the court did note the fact that the
northbound vehicle was traveling from the
direction of the Mexico-United States border
was a legitimate factor when viewed in
conjunction with the other factors considered
by the agent. We agree.
Another Brignoni-Ponce factor weighed
in favor of particularized suspicion of the
vehicle and its driver in this case. The
district court found that the BOLO received
by agent Hampton was a legitimate factor to
be considered when deciding whether to stop
Ceniceros. A BOLO or anonymous tip may
provide the reasonable suspicion required to
justify an investigatory stop. See Gonzalez,
190 F.3d at 672. The white Chevrolet
Lumina heading north on Highway 118 and
driven solely by Ceniceros matched the
description in the BOLO received by
Hampton at the beginning of his shift that
day and corroborated the lookout report.
The agent and the district court were correct
in considering this fact relevant. This court
need not consider whether the lookout alone
was sufficient, however, because Hampton
also considered other factors in appraising
whether there was reasonable suspicion.
Hampton testified that the Lumina’s
shocks were slow to respond from even
subtle bumps in the road, and that this
indicated that something was in the vehicle’s
trunk. The agent’s observations served to
further support his suspicion that the
Lumina, which fit the BOLO’s description,
was engaged in drug trafficking. A vehicle’s
heavily-laden appearance may support a
finding of reasonable suspicion and
corroborate an informant’s tip. See United
States v. Lopez-Gonzalez, 916 F.2d 1011,
1014 (5th Cir. 1990); see also Morales, 191
F.3d at 605-06 (agent’s observations that
vehicle’s "floating" response to bumps
indicated a heavy load was a factor
supporting reasonable suspicion).
Hampton’s consideration of these
observations was appropriate.
The agent’s previous experience is
another relevant consideration in the
reasonableness determination. Hampton had
been in the Border Patrol for slightly more
than one year. He testified that he had
participated in ten drug seizures resulting
from vehicle stops along Highways 118 and
385. While this level of experience does not

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make Hampton a seasoned veteran, it does
not diminish his judgment. If anything, his
familiarity with drug activity in the area
bolsters his ability to make inferences from
his other observations.
Likewise, the agent’s observations that
the driver of the vehicle seemed to be
drifting within his lane due to his awareness
of the trailing patrol car and the car’s
registration to a non-Hispanic Female in
Dallas might not, without more, reasonably
warrant suspicion of criminal activity. But
when viewed with the agent’s other, more
particularized suspicions about the vehicle
and its driver, the more subtle observations
add to the reasonableness of the agent’s
suspicion. Viewed in the light most
favorable to the government, the stop was
justified.
The district court correctly concluded
that under the totality of the circumstances,
Agent Hampton had reasonable suspicion to
stop Ceniceros. The Lumina was traveling
from the direction of the border, did not have
a park sticker on its windshield and was not
recognized by Hampton. Most important,
the vehicle, its driver, and the car’s route fit
the description of a BOLO Hampton
received that day. When he followed the car,
he observed that the car drifted within its
lane and appeared heavily-laden in the trunk.
All these factors provided articulable facts
that indicated illegal activity might be afoot.
Under these facts, we cannot say that
reasonable suspicion was lacking.
IV.
For the foregoing reasons, the judgment
of conviction is AFFIRMED.

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