UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-1809

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE HIPOLITO CHAVEZ-VILLARREAL,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

(September 21, 1993)

Before POLITZ, Chief Judge, REYNALDO G. GARZA and JOLLY, Circuit

Judges.

POLITZ, Chief Judge:

Convicted of posses sion with intent to distribute marihuana

and an associated firearms offense, Jose Hipolito Chavez-Villarreal

appeals denial of his motion to suppress. Finding that the

inculpatory evidence was the fruit of an illegal stop, we vacate

and remand.

Background

Shortly before 9:00 a.m., Border Patrol Agent Gerald R. Vonn

was monitoring eastbound traffic on Interstate 40 twelve miles west2

of Amarillo, Texas and 350 miles north of the Mexican border. The

Border Patrol outpost in the Amarillo-Lubbock area, which Vonn

supervised, annually apprehended over 1,000 undocumented aliens on

this stretch of interstate highway. A major artery spanning the

country, Interstate 40 al so carried heavy volumes of legitimate

traffic; Von n, an experienced agent familiar with the area,

characterized it as "one of the most heavily used routes in the

United States."

On this particular day Vonn was called out to assist agents

who had apprehended a group of persons smuggled across the border.

While the agents completed paperwork Vonn observed traffic. All of

the agents' vehicles were parked under an overpass; Vonn had an

unmarked car and the other agents w ere in two patrol cars with

insignia and overhead lights. There was a low spot in the highway

100 yards west of the overpass; eastbound vehicles could not see

the officers' vehicles until driving through the low spot.

An older model Suburban with dark tinted windows drew Vonn's

attention. Vonn recognized the Suburban as the type of vehicle

used to carry undocumented persons but he also knew that Suburbans

are a very po pular vehicle in West Texas. Using his binoculars

Vonn saw the occupants of the Suburban were a driver and a

passenger. As the Suburban passed, however, Vonn could see only

the driver, who had a rigid demeanor and looked straight ahead.

The vehicle displayed Arizona license plates, a state considered to

be one of the states of origin of smuggling expeditions. Vonn

decided to follow the Suburban.1 Miranda v. Arizona

, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d

694 (1966).

3 The Suburban began to change lanes and speeds, slowing down,

then speeding up. It did not, however, exceed the speed limit. As

Vonn pulled alongside the passenger sat up. The driver, an

Hispanic male, continued to look straight ahead. Vonn decided to

stop the vehicle.

Upon request for proof of citizen ship the two occupants

presented Vonn with their alien registration cards. The driver was

Chavez-Villarreal; the passenger was a 15-year old b oy. Vonn

noticed a lumpy sleeping bag in the back of the Suburban which

could have hidden ano ther occupant. Retaining the alien

registration cards, Vonn asked and received permission from ChavezVillarreal to look inside. As he inspected the sleeping bag he

felt a soft-sided suitcase, saw a rifle and ammunition, and smelled

chili powder, sometimes used to mask the odor of marihuana.

Suspecting that he had found controlled substances Vonn called for

back-up.

When help arrived Vonn informed Chavez-Villarreal of his

suspicions, gave him Miranda 1 warnings and asked permission to

search the Suburban. Chavez-Villarreal again consented, this time

signing a written consent form. Over 88 pounds of marihuana were

discovered. Chavez-Villarreal was arrested. During processing he

told Vonn that he had agreed to drive the marihuana from Phoenix to

a rest area near Amarillo for $1,500 to $2,000. The 15-year old

passenger was released when Chavez-Villarreal insisted that the boy2 United States v. Diaz , 977 F.2d 163 (5th Cir. 1992).

4 was along only to keep him awake during the overnight drive and

knew nothing about the contraband.

The gran d jury handed up an indictment charging ChavezVillarreal with violating 21 U.S.C. § 841(a)(1), possession with

intent to distribute marihuana, and 18 U.S.C. § 924(c)(1), use of

a firearm in connection with a drug trafficking offense. He moved

to suppress the evidence seized i n the search, including the

marihuana, and the statements that he had made after his arrest.

That motion was denied and Chavez-Villarreal entered a conditional

plea of guilty, reser ving his right to appeal the denial of his

motion to suppress. After sentencing he timely appealed.

Analysis

We employ a two-tier standard in reviewing denial of motions

to suppress, reviewing the district court's factu al findings for

clear error and its ultimate conclusion as to the constitutionality

of the law enforcement action de novo

. 2 Applying this standard, we

conclude that the district court erred in finding the stop of

Chavez-Villarreal's vehicle constitutional. Finding the stop legal

the district court did not address whether the subsequent consent

to search was the fruit of unlawful conduct. Having before us an

adequate record, in the interests of judicial economy we reach this

issue and hold that the consent was tainted by the unconstitutional

stop, poisoning the fruits of the subsequent search.3 United States v. Cortez

, 449 U.S. 411, 101 S.Ct. 690, 66

L.Ed. 2d 621 (1981).

4 United States v. Sokolow

, 490 U.S. 1, 109 S.Ct. 1581, 104

L.Ed. 2d 1 (1989).

5 Cortez

.

6 United States v. Garcia

, 732 F.2d 1221, 1223 (5th Cir. 1984).

5 1. Legality of the stop

.

The fourth amendment permits a Border Patrol agent to select

a particular vehicle for a stop only upon reasonable suspicion that

the occupants are engaged in or about to engage in criminal

activity. 3 We assess the basis for a stop not by isolating any

component factor, each of which may indicate wholly i nnocent

behavior standing alone, but by examining the entire pi cture, 4

which must yi eld articulable and objective manifestations of

particularized suspicion. 5

The picture presented by the record is that of an Hispanic man

cautiously driving a popular older model vehicle on a major

interstate highway, 350 miles from the Mexican border, at 9:00 a.m.

with a companion who briefly slumped in his seat. After an

unmarked vehicle dropped in behind, he switched lanes, slowed down,

then resumed a speed within the legal limits. We are not persuaded

that these circumstances gave rise to a reasonable sus picion of

criminal activity.

Of "vital" importance, 6 Vonn could not infer from the location

of the vehicle that it came from the border. Nor do the prior

numerous incidents of arrests on Interstate 40 avail; the

legitimate traffic on the highway was so heavy that the probability7 For the same reason, we cannot accept presence on the road at

9 a.m. as grounds for suspicion, even though, as Vonn testified at

the suppression hearing, traffic leaving border areas in Arizona at

midnight would be expected to arrive in Amarillo at mid-morning.

8 Compare Garcia with United States v. Lamas

, 608 F.2d 547 (5th

Cir. 1979).

9 United States v. Cardona

, 955 F.2d 976 (5th Cir.), c ert

. denied

, U.S. , 113 S.Ct. 381, 121 L.Ed. 2d 291 (1992).

1 0 United States v. Orona-Sanchez

, 648 F.2d 1039 (5th Cir.

1981).

11 See Lamas

.

6 that any particular vehicle was smuggling an undocumented person

was exceedingly sl ight. 7 That the passenger slouched in his seat

as the Suburban approached the underpass could suggest that he was

trying to hide, but such an inference is at least partially

dispelled by the fact that he sat erect as Vonn's car drew abreast.

Because passengers commonly slump in their seats to rest, we have

required a more affirmative indication of an attempt to hide. 8 We

find nothing suspicious about a driver changing lanes and slowing

down when he realizes a vehicle approaching from the rear; that is

a normal reaction if the driver wishes to let the tailing vehicle

pass.

Further, we accord no weight to Chavez-Villarreal's failure to

look at the patrol cars 9 and very little to his Hispanic

appearance; his license plates indicate that he was from a state

with a substantial Hispanic population. 1 0 Nor are we disposed to

recognize an inference of criminal conduct from the Arizona tags;

it cannot be gainsaid that a substant ial amount of legitimate

traffic from Arizona travels on Interstate 40 in West Texas. 11 The1 2 We are aware of our decision in U nited States v. RamirezLujan , 976 F.2d 930 (5th Cir. 1992), c ert

. denied

, U.S.

, 113 S.Ct. 1587, 123 L.Ed. 2d 153 (1993), to admit evidence obtained

in a contested stop under the good faith exception to the

exclusionary rule. The government does not argue the good faith

exception here; it does not apply. Unlike R amirez-Lujan

, the stop

in the instant case did not take place on a border road whose usual

travelers were known on an individual basis by the Border Patrol

agent.

1 3 Brown v. Illinois , 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed. 2d

416 (1975).

7 stop herein violated the fourth amendment. 12

2. Validity of the Consent

.

Chavez-Villarreal consented to both o f the searches that

ultimately revealed the marihuana and resulted in his arrest.

Therefore our finding of an illegal stop does not definitively

determine whether the evidence derived from the subsequent searches

must be excluded. Consent to search may, but does not necessarily,

dissipate the taint of a fourth amendment violation. 13

The admissibility of the challenged evidence turns on a twopronged inquiry: whet her the consent was voluntarily given and

wheth er it was an independent act of free will. The first prong

foc uses on coercion, the second on causal connection with the

constitutional violation. Even though voluntarily given, consent

does not remove the taint of an illegal detention if it is the

product of that detention and not an independent act of free will.

To determine whether the causal chain was broken, we consider: (1)

the temporal proximity of the illegal conduct and the consent; (2)

the presence of intervening circumstances; and (3) the purpose and1 4 Brown ; United States v. Richar d , 994 F.2d 244 (5th Cir.

1993); United States v. Pierre

, 932 F.2d 377 (5th Cir. 1991),

reversed on other grounds

, 958 F.2d 1304 (5th Cir.) (en banc),

cert

. denied

, U.S. , 113 S.Ct. 280, 121 L.Ed. 2d 207 (1992).

1 5 Six factors bear on the voluntariness of consent: ( 1) the

voluntariness of the defendant's custodial status; (2) the presence

of coercive police procedures; (3) the extent and level of the

defendant's cooperation; (4) the defendant's awareness of his right

to refuse to consent; (5) the defendant's education and

intelligence; and (6) the defendant's belief that no incriminating

evidence will be found. Richard

.

1 6 See Florida v. Royer

, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.

2d 229 (198 3) (retention of the defendant's airplane ticket and

driver's license is a show of official authority indicative of a

seizure rather than a consensual encounter); United States v.

Berry

, 670 F.2d 583 (5th Cir. 1982) (en banc) (same); United States

v. Jordan

, 958 F.2d 1085, 1087 (D.C.Cir. 1992) ("Without his ticket

and license, the defendant was not able to 'decline the officer's

request' for an interview"); United States v. Gaviria

, 775 F. Supp.

495 (D.R.I. 1991) (officer's retention of the defendant's green

card is evidence that his consent to search was not voluntary).

8 flagrancy of the initial misconduct. The burden of showing

admissibility rests on the government. 14

At the threshold we note elements of coercion in connection

with both consents. 15 After he had ascertained the legal

immigrati on status of Chavez-Villarreal and his passenger, Agent

Vonn retained possession of their alien registration cards. He

still held the cards when he asked for permission to search. The

card was vita l to Chavez-Villarreal's legal presence in this

country; without it, his disposition, if indeed not ability, to

decline Vonn's request expectedly was significantly impaired. 16

We pretermit, however, our inquiry into voluntariness because

we are convinced that the foregoing circumstances and others

require a finding that the taint of the illegal detention had not

been dissipated at the time agent Vonn obta ined the defendant's1 7 981 F.2d 1464 (5th Cir.), cert

. d enied

, U.S. , 113

S.Ct. 2427, 124 L.Ed. 2d 647 (1993). In Pierre , we discussed the

divergent lines of authority on this issue in this circuit.

1 8 Cf

. United States v. Sheppard

, 901 F.2d 1230 (5th Cir. 1990)

(where alleged misconduct was at worst a minor and technical fourth

amendment violation, suppression would not promote the deterrence

function of the exclusionary rule).

9 con sent. Less than 15 minutes elapsed between the stop and the

second search. There were no intervening occurrences that might

have attenuated the taint before the verbal consent to the first

search. To the contrary, Vonn's retention of the green cards

reinforced his authority. Vonn told Chavez-Villarreal that he

could refuse to consent to the second search but by then refusal

seemed pointles s; Vonn had made known his suspicions about

narcotics. Although we recently held such an advisory sufficiently

attenuating in United States v. Kelley

, 17 that case did not involve

circumstances such th at the consenting party would have thought

that discover y of the incriminating evidence was inevitable.

Final ly, we are persuaded that the required indicia of

individualized suspicion were so utterly lacking herein that only

suppression will serve the deterrence function of the exclusionary

rule. 18

The motion to suppress should have been granted. The evidence

found in the searches of the Suburban, including the marihuana and

the firearm, is inadmissible. So too are the incriminating

statements that Chavez-Villarreal made during processing. The

government has advanced no persuasive argument for attenuation with

respect to these statements and we find none in the record.10

The convictions are VACATED and the matter is REMANDED for

further proceedings consistent herewith.