Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-51128

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee

v.

ALDO ANTONIO HERNANDEZ-MOYA, 

 Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:08-CR-100-ALL

Before JONES, Chief Judge, and SMITH and DeMOSS, Circuit Judges.

PER CURIAM:*

While driving on Interstate 20, Defendant-Appellant Aldo Antonio

Hernandez-Moya was stopped by border patrol agents and charged with

transporting illegal aliens. He pled guilty while reserving the right to pursue a

motion to suppress evidence obtained by the border patrol agents, asserting that

the stop was conducted without reasonable and articulable suspicion. In a

thorough and well-reasoned ruling that develops the facts more thoroughly than

we need do here, the district court denied the motion to suppress. We affirm,

United States Court of Appeals

Fifth Circuit

F I L E D

November 25, 2009

Charles R. Fulbruge III

Clerk
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2

finding that the district court did not err and that the use of the Brignoni-Ponce

standard to assess roving border patrol stops does not violate the Equal

Protection Clause.

I. Background

Hernandez-Moya was charged in a two-count indictment of transporting

illegal aliens and using and possessing counterfeit alien registration documents.

These charges arose after two border patrol agents stopped Hernandez-Moya’s

vehicle and discovered six illegal aliens from Mexico, including DefendantAppellant himself. 

Agent Michael Meyer and his partner were parked in a marked Border

Patrol SUV and observing eastbound traffic traveling on Interstate Highway 20,

east of Midland, Texas. Interstate 20 is a heavily traveled corridor linking the

El Paso area on the U.S.-Mexico border and the Dallas-Fort Worth area. The

agents’ SUV was parked on the median of the highway and the headlights of the

SUV shined onto the passing cars. As a result, the agents had a clear view into

the interiors of passing vehicles. Around 6:00 a.m., Agent Meyer observed a

dark-colored Chevy Tahoe pass on the interstate. The Tahoe was not violating

any traffic laws. Agent Meyer observed six occupants in the Tahoe all of whom

appeared to be Hispanic. 

The agents followed the Tahoe and ran a computer check, which showed

that the car was registered to an address in Garland, Texas, near Dallas. After

the agents’ vehicle pulled into traffic behind the Tahoe, the Tahoe weaved

slightly from side to side, though not outside its marked lane, and slowed

considerably below the speed limit. As Agent Meyer pulled in closer, he observed

that the Tahoe now appeared to only contain two individuals—the driver and the

front passenger. Agent Meyer inferred that the four passengers in the back had

ducked down to hide. 
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Based on these facts, Agent Meyer pulled over the Tahoe and conducted

an immigration stop. Upon questioning by Agent Meyer, Hernandez-Moya, the

driver of the Tahoe, admitted that he was a Mexican national who was in the

United States illegally. Upon further questioning, the remaining passengers

also indicated that they were in the United States illegally. Hernandez-Moya

was then arrested and taken to the Border Patrol station in Midland. 

Hernandez-Moya filed a motion to suppress all of the counterfeit

documents and other evidence seized from the Tahoe and all incriminating

statements made to law enforcement officials. Hernandez-Moya argued that the

agents did not have reasonable and articulable suspicion to conduct the stop.

The district court denied the motion. Thereafter, Hernandez-Moya pled guilty

to both counts of the indictment, but retained his right to appeal the motion to

suppress. Hernandez-Moya now appeals the denial of his motion to suppress.

II. Standard of Review

This court reviews the district court’s factual findings under the clearly

erroneous standard. United States v. Inocencio, 40 F.3d 716, 721 (5th Cir. 1994).

The evidence presented at a pre-trial hearing on a motion to suppress is viewed

in the light most favorable to the prevailing party. Id. The conclusions of law

derived from a district court’s findings of fact, such as whether a reasonable

suspicion existed to stop a vehicle, are reviewed de novo. Id.

III. Discussion

A. Vehicle Stop 

Appellant argues that the district court erred by applying the standard for

border searches under United States v. Brignoni-Ponce rather than the search

and seizure standard articulated in Terry v. Ohio. See Terry v. Ohio, 392 U.S.

1, 88 S. Ct. 1868 (1968); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct.

2574 (1975). Appellant asserts that the Brignoni-Ponce standard is only
No. 08-51128

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applicable to those cases involving a close proximity to the border. This is

incorrect. This court has held that roving border patrol stops, even those not in

close proximity to the border, should be analyzed using the Brignoni-Ponce

factors. Inocencio, 40 F.3d at 722. See also United States v. Orozco, 191 F.3d

578, 581-582 n.3 (5th Cir. 1999) (applying Brignoni-Ponce to a stop that occurred

some 200-300 miles away from the border and rejecting the argument that stops

beyond a 100-mile zone from the border are precluded from a Brignoni-Ponce

inquiry). Proximity to the border is only one of a number of Brignoni-Ponce

factors weighed when determining whether a border patrol agent had the

requisite reasonable suspicion to make a stop. Inocencio, 40 F.3d at 722. 

In the alternative, Appellant contends that even if the court were to apply

the Brignoni-Ponce standard, the border patrol agent still lacked the requisite

reasonable suspicion for a vehicle stop. The Brignoni-Ponce inquiry is a

“fact-intensive test in which the court looks at all circumstances together to

weigh not the individual layers, but the laminated total.” United States v.

Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). A number of factors may be

considered, including: characteristics of the area, such as its proximity to the

border, usual traffic patterns, previous experience with alien traffic; information

about recent illegal border crossings; the driver's behavior, such as erratic

driving or obvious attempts to evade officers; the driver’s behavior, the

appearance of the vehicle, such as whether the vehicle is heavily loaded; and

appearance of the persons in the vehicle such as if officers observe passengers

trying to hide. Brignoni-Ponce, 422 U.S. at 884-85. No single factor is

controlling, and the absence of any particular factor is not determinative.

United States v. Cardona, 955 F.2d 976, 980 (5th Cir. 1992). 

In its ruling, the district court found the evasive behavior of the

passengers to be the most significant factor supporting reasonable suspicion.

Agent Meyer testified that he initially saw six people in the Tahoe as it drove

past the agents’ marked Border Patrol vehicle. Meyer testified, however, that
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only two of the six occupants could be seen after the Border Patrol vehicle pulled

onto the interstate to follow the Tahoe. Agent Meyer and his partner concluded

that the Tahoe’s passengers were attempting to hide by ducking down. This

court has previously found “evasive action of passengers” to be a “significant

factor” in justifying a stop. United States v. Garcia, 732 F.2d 1221, 1225 (5th

Cir. 1984). Agent Meyer also observed that the passengers appeared to be

Hispanic. Brignoni-Ponce held that while a stop based on the ethnicity of the

vehicle occupants alone cannot be justified, appearance and ethnicity can be

considered as another factor. 422 U.S. at 886-87. 

Viewing the totality of the circumstances, the border patrol agents had

articulable facts, together with rational inferences, reasonably warranting

suspicion that Appellant’s vehicle may have contained illegal aliens. See

Brignoni-Ponce, 422 U.S. at 884. We agree with the district court’s analysis.

B. Equal Protection Claims

Appellant also argues that it is a violation of the Equal Protection Clause

to apply the Brignoni-Ponce test based on the Hispanic ethnicity of the vehicle

occupants while applying the Terry test to white vehicle occupants stopped for

non-immigration reasons. Appellant’s argument misstates the difference

between the two tests. The application of one test over the other does not turn

upon race or ethnicity but on the type of law enforcement officers and the nature

of the stop. Terry analysis applies to investigative stops made by local police

officers, while Brignoni-Ponce applies to stops by roving border agents. See

Terry, 392 U.S. at 5; Brignoni-Ponce, 422 U.S. at 881-82; Cardona, 955 F.2d at

980. 

Further, under Brignoni-Ponce, ethnicity alone does not determine or

support reasonable suspicion for a stop. 422 U.S. at 886-87. However, the

Supreme Court has held that ethnic appearance may be considered as one of the

relevant factors in supporting a reasonable suspicion that a vehicle is involved

in the transportation of illegal aliens. Id. We find that applying the Brignoni-
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Ponce factors to a roving border patrol stop does not violate the Equal Protection

Clause.

IV. Conclusion

The district court’s order denying the motion to suppress appropriately

applied the Brignoni-Ponce standard and thoroughly considered all the relevant

factors. For essentially the same reasons articulated by the district court, we

affirm the judgment of conviction. 

AFFIRMED.