Revised February 5, 1999

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-50641

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALFREDO MORENO-CHAPARRO,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

September 30, 1998

Before POLITZ, Chief Judge, WISDOM and DUHÉ, Circuit Judges.

POLITZ, Chief Judge:

Alfredo Moreno-Chaparro appeals the district court’s denial of his motion to

suppress evidence allegedly obtained as the result of an unconstitutional stop by a

United States Border Patrol agent. For the reasons assigned we conclude and hold

that the stop at issue violated fourth amendment guarantees.1 Agent Hollenbeck testified that he believed that the highway was particularly

vulnerable to smugglers during shift changes because of reduced manpower. A shift

change usually occurs at 2:00 p.m.

2 BACKGROUND

On March 5, 1997 at approximately 2:00 p.m., United States Border Patrol

Agent Alfred Hollenbeck was observing activity on Highway 67 fr om a temporarily

closed immigration checkpoint. The checkpoint involved is located about five

miles south of Marfa, Texas and approximately 60 miles north of Presidio, Texas

and the Mexican border. Traffic included a black Chevrolet pickup truck traveling

northbound. 1 As the truck passed through the checkpoint the male driver, later

identified as Moreno, slowed and appeared surprised to see the patrol car alongside

the checkpoint. Hollenbeck testified that when a checkpoint is closed, drivers

typically “just go about their business and they don’t think twice about stopping or

looking or staring.” Upon cross examination, however, Agent Hollenbeck

candidly conceded that it was not unusual for a driver to decelerate and glance at

the checkpoint when closed.

When Moreno passed though the checkpoint Hollenbeck could not determine

that he was Hispanic. Although a Mexican, Moreno has light skin, blonde to light

brown hair, and green eyes. Hollenbeck decided to conduct an immigration check

because, he says, he suspected that Moreno was an illegal alien and possibly was3

harboring other illegal aliens in the truck. Prior to stopping Moreno, Hollenbeck

ran a license check on the vehicle and learned that it was registered to Isma Moreno

of El Paso, Texas.

After the stop, Moreno gave Hollenbeck his resident alien card and explained

that he d id not speak English. In their Spanish exchange, Hollenbeck asked

Moreno about the origin of his trip, his destination, and whether the truck belonged

to him. Moreno said that the truck belonged to his sister and explained that he was

returning from Mexico where he had been visiting relatives for the past two weeks.

Hollenbeck indicated that he was puzzled by this answer because Moreno did not

appear to have luggage.

Hollenbeck asked for consent to search the vehicle. He then noticed that the

truck was clean except for the u ndercarriage which was caked with mud. He

testified that mud is often used to mask new bolts and changes made to hide drugs.

Although a canine search did not resu lt in an alert for the presence of drugs,

Hollenbeck directed Moreno to return the vehicle to t he checkpoint for closer

inspection. After the mud was removed, Hollenbeck noticed new bolts supporting

the gas tank. The agent then secured permission to search the inside of the gas tank

and dis covered therein a hidden compartment containing 185 pounds of marihuana.2 422 U.S. 873, 884 (1975).

3 Factors to be considered include: (1) characteristics of the area in which the

vehicle is encountered; (2) unusual patterns of traffic on the particular road; (3) proximity

to the border; (4) information about recent illegal crossings in the area; (5) appearance of

the vehicle; (6) number and appearance of the passengers; (7) behavior of the driver; and

(8) behavior of the passengers. Brignoni-Ponce , 422 U.S. at 884-85.

4 ANALYSIS

In United States v. Brignoni-Ponce

, the Supreme Court dir ected that

“officers on roving patrol may stop vehicles only if they are awa re of specific

articulable facts, together with rational inferences from those facts, that reasonably

warrant suspicion that the vehicles conta in aliens who may be illegally in the

country.” 2 Several factors weigh into the determination whether a stop is justified. 3

No single factor is determinative; the totality of the particular circumstances must

govern the reasonableness of any stop by roving border patrol officers.

In the case at bar, the district court found that the following facts supplied

reasonable suspicion: (1) the a g ent’s experience; (2) the time of day; (3) the

particular type of vehicle; (4) the driver slowed down to look at the checkpoint and

seemed surprised to see an officer there; (5) the agent found that the driver

appeared extremely nervous; (6) the clean appearance of t he vehicle’s exterior

coupled with the muddy appearance of the underside of the vehicle; and (7) the

driver did not appear to have luggag e despite a two week visit with relatives in4 United States v. Orona-Sanchez , 648 F.2d 1039 (5th Cir. 1981).

5 Mexico. While we would agree that this collage of factors may be sufficient to

supply an officer with reasonable suspicion, we must perforce note that only the

first four were known by Agent Hollenbeck at the time of the stop. Obviously only

those factors known to the officer at the time of the stop can be considered when

determining whether the stop was reasonable.

A vital element of the Brignoni-Ponce test is whether the agent had reason

to bel ieve that the vehicle in question had come from the border. 4 It appears

manifest that Agent Hollenbeck did not have reasonable grounds to believe that

Moreno had crossed the border. Moreno was 60 miles north of the Mexican border,

driving a Chevrolet pickup truck with valid Texas license plates, and could have

been coming from nearby co mmunities, including Presidio, which is a town

populated by several thousand residents. This factor alone is not controlling and

other factors must be given appropriate consideration in the determination whether

reasonable suspicion existed.

The government places heavy emphasis on Moreno’s “surprised” appearance

when he saw Agent Hollenbeck parke d at the checkpoint. Although Hollenbeck

noted that most drivers do not look to see if an officer is parke d at a closed

checkpoint, he testified that it was not unusual for them to do so. We cannot help5 United States v. Nichols , 142 F.3d 857 (5th Cir 1998); United States v.

Chavez-Villarreal , 3 F.3d 124 (5th Cir. 1993); United States v. Escamilla , 560 F.2d

1229 (5th Cir. 1977).

6 Escamilla , 560 F.2d at 1233.

6 but not e that the government has variously relied on both sides of the factor, on

some occasions contending that it is suspicious for a person to look and on other

occasions insisting that it is suspicious not to look. We are persuaded that in the

ordinary case, whether a driver looks at an officer or fails to look at an officer,

taken alone or in combination with other factors, should be accorded little weight. 5

To conclude otherwise “would put the officers in a classic ‘heads I win, tails you

lose’ position. The driver, of course, can only lose.” 6 The government maintains

that in addition to looking over at the park ed Border Patrol car, Moreno looked

surprised at seeing an agent parked at the checkpoint. We perceive little

significance in a driver looking surprised to see a Border Patrol agent parked at a

c losed immigration checkpoint. More is needed to articulate the mandated

reasonable suspicion required for a stop by the Supreme Court’s teachings.

Prior to stop ping Moreno, Agent Hollenbeck ran a license plate check and

discovered that the truck Moreno was driving was registered to a female resident

of Texas. The government insists that this was a factor contributing to reasonable

suspicion. Hollenbeck, however, testified to the obvious, i.e., that it is not unusual7

for a man to drive a vehicle registered to a woman. Further, the type of vehicle was

not suspect. Although Agent Hollenbeck testified that the Border Patrol carefully

watches “Chevys in general,” it would be manifestly unreasonable to target every

Chevrolet pickup truck driven on Texas highways. The agent could not point to

anything suspicious about the truck. It contained no visible passengers, it had not

been modified in an obvious way, and it was not riding low to the ground as if it

were loaded down with people or contraband; it was neither particularly clean nor

particularly dirty. It was just an average pickup truck on a highway in Texas.

The government stresses that the time of day that Moreno passed though the

checkpoint added to the suspicion. Moreno drove past the checkpoint at

approximatel y two o’clock in the afternoon. The government contends that this

serendipitous time contributes to reasonable suspicion because it is the time of the

Border Patrol shift change. During the shift change, we are told, the roads are left

virtually unchecked and there accordingly is a particular vulnerability to smugglers

who are aware of the timing of the shift change. While we may empathize with the

Border Patrol’s concerns regarding in creased exposure during times of reduced

manpower, we are not willing to sacrifice the constitutional protections of drivers

to lessen the perceived adverse impact resulting from the decision of the Border

Patrol to change shifts at the same time everyday.7 Brignoni-Ponce , 422 U.S. at 882.

8

I n summary, we find, conclude, and hold that each factor presented by t h e

government is non-remarkable and unsuspicious. Taken together, and considered

in the context of the agent’s experience, the factors known to the agent at the time

of the stop of Moreno’s vehicle fall far short of providing the required reasonable

suspicion. “In the context of border area stops, the reasonableness requirement of

the Fourth Amendment demands something more than th e broad and unlimited

discretion sought by the Government.” 7

Moreno’s motion to suppress should ha ve been sustained. We therefore

REVERSE the order of the district court denying the motion to suppress, grant said

motion, and REMAND for further proceedings consistent herewith.