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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

UNITED STATES OF AMERICA,

 Plaintiff,

vs.

(1) ALFONSO CANO-TOVAR,

 Defendant.

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SA-20-CR-00143-OLG

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

To the Honorable Chief United States District Judge Orlando L. Garcia:

This Report and Recommendation concerns Defendant’s Motion to Suppress [#38], 

which was referred to the undersigned for a report and recommendation pursuant to Western 

District of Texas Local Rule CV-72 and Appendix C. The undersigned therefore has authority to 

enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth

below, it is recommended that Defendant’s Motion to Suppress [#38] be DENIED. 

I. Background

Defendant Alfonso Cano-Tovar (“Cano”) was indicted on March 4, 2020, on three counts 

of transporting and conspiring to transport illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A). 

The indictment resulted from an investigatory stop by Border Patrol agents near Encinal, Texas. 

Cano was found to be the driver of a pickup truck containing four undocumented Mexican 

nationals confessing to have recently crossed illegally into the United States. Cano now moves 

to suppress all evidence and statements obtained as a result of what he alleges was an illegal 

seizure. Cano argues that the border patrol agents who stopped his vehicle lacked reasonable 

suspicion or probable cause to believe that illegal activity was afoot. 

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The Government responds that the motion to suppress should be denied on its merits 

because the Border Patrol had reasonable suspicion to justify the investigatory stop and seizure 

of Cano. In addition, the Government challenges Cano’s standing to challenge the seizure 

because Cano was driving a stolen vehicle, in which he has no expectation of privacy, and that 

the evidence, even if the fruit of an illegal seizure, is nonetheless admissible under the inevitable 

discovery doctrine. 

The Court held a hearing on the motion on November 10, 2020, at which counsel for both 

parties and Cano were present and at which Border Patrol Agent Paul Silva provided live 

testimony. At the close of the hearing, the Court instructed the parties that they could submit 

post-hearing written briefing within seven days. In issuing this recommendation, in addition to 

considering the Government’s response to Cano’s motion [#41] and Cano’s reply in support 

[#46], the undersigned has also considered the Government’s Memo Following Suppression 

Hearing [#58]. 

II. Legal Standard

The Fourth Amendment protects against unlawful searches and seizures and extends to 

brief investigatory stops of persons or vehicles that fall short of a traditional arrest. United States 

v. Arvizu, 534 U.S. 266, 273 (2002) (citing Terry v. Ohio, 392 U.S. 1, 9 (1968)). Because Cano 

was seized without a warrant, the Government bears the burden to prove by a preponderance of 

the evidence that the seizure complied with the Fourth Amendment. United States v. Jeffers, 342 

U.S. 48, 51 (1951); United States v. Guerrero-Barajas, 240 F.3d 428, 432 (5th Cir. 2001). 

A temporary detention of a vehicle occupant for investigatory purposes is constitutional 

if, at a minimum, the Border Patrol agent reasonably suspects that the occupant of the vehicle is 

involved in illegal activity. Guerrero-Barajas, 240 F.3d at 432. Reasonable suspicion is 

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something less than probable cause, but something more than an agent’s “hunch.” United States 

v. Lopez–Moreno, 420 F.3d 420, 430 (5th Cir. 2005). Suspicion is reasonable if, taking into 

consideration the totality of the circumstances, it is based on specific and articulable facts and the 

rational inferences that can be drawn therefrom. Guerrero-Barajas, 240 F.3d at 432. 

In the context of investigatory stops by Border Patrol agents, the Supreme Court has 

articulated a list of non-exclusive factors for courts to consider in assessing reasonable suspicion. 

United States v. Brignoni-Ponce, 422 U.S. 873, 884–85 (1975). These factors include the 

following: (1) the agent’s experience in detecting illegal activity; (2) proximity of the area where 

the investigatory stop occurred to an international border; (3) the area’s known characteristics for 

illegal activity; (4) information about recent illegal activity in the area; (5) the area’s usual traffic 

patterns; (6) erratic driving or obvious attempts to evade agents; (7) the type of vehicle and other 

characteristics of the vehicle known to the agents to be frequently used in illegal activity 

including whether the vehicle is riding low or its suspension is modified; and (8) the number, 

appearance, and behavior of the occupants of the vehicle. Guerrero-Barajas, 240 F.3d at 432–33 

(listing Brignoni-Ponce factors). 

III. Testimony and Evidence

The evidence and testimony of Border Patrol Agent Paul Silva presented at the hearing 

established the following facts by a preponderance of the evidence. On the afternoon of 

February 13, 2020, the Cotulla Border Patrol Station received a phone call from the Encinal 

Police Department stating that a concerned citizen had seen four possible illegal aliens load in a 

white, older Ford pickup truck near the Ranch House Café heading west on Highway 44 towards 

Highway 83. The Ranch House Café is a restaurant located on an otherwise undeveloped stretch 

of highway in South Texas and has been closed for an extended period of time. The area where 

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the restaurant is located is in close proximity to the Mexican border in an area where there are 

very few roads and very little local traffic and is a known hot spot for alien smuggling. Agent 

Silva, a Border Patrol agent with 23 years of experience, testified that aliens enter at this point of 

the border because it is north of both the border checkpoint in Laredo, Texas, and an additional 

checkpoint on Highway 83. He further testified that the parking lot of the Ranch House Café is 

specifically known as a meeting place for loading illegal aliens who have recently crossed the 

border into vehicles. Although Silva did not testify to the precise number of miles between the 

Ranch House Café and the border, he testified that the area is accessible by foot by those 

crossing the border. A map of the area used as a visual aid at the Court’s hearing demonstrates 

that the town of Laredo, which is approximately 43 miles from the Ranch House Café, is a 

significantly longer distance from the Café than the closest portion of the Mexican border.1 

At approximately 3:15 p.m. on the day in question, Agent Silva was conducting a roving 

patrol around the intersection of Interstate 35 and Route 133 when he heard the report on his

service radio about the white pickup truck possibly loaded with illegal aliens. The report 

indicated that the truck was seen headed west on Highway 44 towards Highway 83, an 

intersection about five miles west of the Ranch House Café. Route 133, where Agent Silva was 

patrolling, runs parallel to Highway 44 and also intersects with Highway 83 to the north. In 

response to the report, Silva drove toward Highway 83 and headed south, hoping to intercept the 

vehicle. 

According to Silva, Border Patrol Agent Ezequiel Ramirez was the first to spot the 

vehicle heading north on Highway 83, away from the border. He reported the vehicle’s location 

1

 This Court may also take judicial notice of publicly available maps of the area in issue, 

as the distances from the border of the Café and the highway intersections described are the types 

of facts that “can be accurately and readily determined from sources whose accuracy cannot 

reasonably be questioned.” Fed. R. Evid. 201(b)(2). 

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to Agent Fred Martinez, Jr., another roving Border Patrol Agent in the area, who also saw the 

vehicle traveling north. Agent Silva, who was parked on the side of the road at the time, heard 

Ramirez and Martinez both confirm over radio communication that the vehicle matched the 

description heard on the service radio. Agent Ramirez further relayed that he had seen both a 

driver and a front-seat passenger in the truck’s cab. When the vehicle reached Agent Silva’s 

location approximately two or three minutes later, however, Silva observed only a driver in the 

vehicle; no passenger was visible. At that point, Silva became increasingly suspicious that the 

vehicle contained illegal aliens hiding from Border Patrol. He pulled out behind the vehicle, 

identified the license plate number, and ran a search on the registration. The vehicle was 

approaching a sharp 90-degree turn and was traveling at a fairly high speed. At that point, Agent 

Silva activated his lights and decided to pull over the vehicle. When Silva approached the 

vehicle, he saw several individuals laying in the rear of the cab of the truck and the front 

passenger crouched between the dashboard and the front seat. 

Although the results from the license plate search had not yet come through at the time of 

the stop, Agent Silva obtained the vehicle’s Vehicle Identification Number (“VIN”) and 

discovered that it did not match the license plate. When he later ran the VIN in his system, he 

discovered the vehicle had been stolen. The results of the license plate check ultimately 

established that the license plate affixed to the stolen truck was associated with a silver Ford 

pickup. Agent Silva testified that if he had discovered the mismatched license plate while on 

roving patrol, he would have pulled over the vehicle on suspicion that the driver had 

intentionally switched the plates because the vehicle was likely stolen and was hiding illegal 

aliens. 

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Cano and the other occupants of the vehicle were taken to the Cotulla Border Patrol 

Station for further processing. At the station, several of the passengers admitted to being from 

Mexico and having recently crossed illegally into the United States. Cano was advised of his 

Miranda rights and gave a statement to Border Patrol agents admitting that he was hired to drive 

the aliens and that the truck and gas money were provided to him for the purpose of smuggling 

the aliens. 

IV. Analysis

The Government contends that Cano lacks standing to challenge the lawfulness of his 

stop because Cano had no expectation of privacy in the vehicle he was driving because it was 

stolen. The Government also argues that Agent Silva had reasonable suspicion to conduct the 

investigatory stop and ultimate seizure of Cano, and, in any event, would have inevitably 

discovered that the vehicle was stolen, which would have provided an independent basis for the 

stop. For the reasons that follow, the undersigned concludes that the Government’s standing 

challenge is meritless, but that the Government has nonetheless established by a preponderance 

of the evidence that Agent Silva had the requisite reasonable suspicion of illegal activity to pull 

over Cano. Therefore, the inevitable discovery argument need not be reached, and Cano’s 

motion to suppress should be denied.

A. Standing

The Government argues that Cano lacks standing to challenge the investigatory stop 

leading to his arrest because the vehicle he was driving was stolen. To establish standing to 

challenge a search and seizure under the Fourth Amendment, a defendant must demonstrate a 

legitimate expectation of privacy that was violated by the challenged Government conduct. See 

generally United States v. Parks, 684 F.2d 1078 (5th Cir. 1982) (citing Katz v. United States, 389 

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U.S. 347 (1967)). Cano bears the burden of establishing that he had a reasonable and legitimate 

expectation of privacy related to his seizure. Barry v. Freshour, 905 F.3d 912, 914 (5th Cir. 

2018). 

In support of its argument that Cano lacks standing, the Government directs the Court to 

the Fifth Circuit’s decision in United States v. Lanford, in which the Fifth Circuit held that the 

possessor of a stolen automobile lacks a legitimate expectation of privacy in the vehicle to 

challenge the search of that vehicle. 838 F.2d 1351, 1353 (5th Cir. 1988). The Fifth Circuit 

distinguished a vehicle search from a search of the person, explaining that the driver of a stolen 

vehicle “does, of course, have standing to challenge the search of his person.” Id. The search at 

issue in Lanford involved the search of the stolen vehicle, which resulted in the discovery of over 

four thousand dollars and the ultimate indictment of the driver of the vehicle for robbery of a 

federally-insured savings and loan and the interstate transportation of a stolen vehicle. Id. at 

1352–33. The principle established in Lanford has been applied repeatedly in this Circuit to 

deny motions to suppress where a defendant is attempting to challenge the search of stolen 

property. See, e.g., United States v. Guevara, 448 Fed. App’x 453, 457 (5th Cir. 2011) (denying 

motion to suppress because defendant lacked standing to challenge the search of the contents of a 

stolen camera found in his vehicle during search); United States v. Cates, 641 F. Supp. 2d 613, 

616 (N.D. Tex. 2009) (denying motion to suppress where defendant failed to establish legitimate 

expectation of privacy in search of vehicle, which resulted in discovery of a firearm on the 

driver’s side floorboard).

Contrary to the Government’s arguments, however, Lanford is inapposite because the 

evidence Cano seeks to suppress through his Fourth Amendment challenge was not obtained as a 

result of a search of stolen property. The Government attempts to argue that it was the search of 

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the stolen truck that resulted in the discovery of the illegal aliens Cano was hired to transport. 

But the testimony provided by Agent Silva does not support the Government’s characterization 

of Cano’s encounter with Border Patrol. Agent Silva testified that he pulled over Cano and 

immediately saw the illegal aliens in the truck through the window when he approached the 

vehicle. The only item discovered as a result of a search was a personal use amount of 

methamphetamine discovered on Cano’s person. As the Court clearly stated in Lanford, a 

defendant does not lose his ability to challenge a search of his person merely because he is in 

possession of stolen property or driving a stolen vehicle. 838 F.2d at 1353. Nor has the 

Government directed the Court to any authority suggesting that a defendant is prohibited from 

challenging his seizure through an investigatory stop or otherwise because he was at the time of 

the seizure in the possession of stolen property. 

In defense of his standing to challenge his seizure, Cano argues that a traffic stop results 

in the seizure of both the driver and passenger alike, and that both individuals have standing to 

challenge the stop as unconstitutional, even where the passenger lacks a privacy interest in the 

car and does not have standing to challenge the search of the vehicle. See United States v. Grant, 

349 F.3d 192, 195–96 (5th Cir. 2003). Cano has established that although he would have lacked 

standing to challenge the search of the stolen truck (had one occurred), he does have standing to 

challenge the stop resulting in the seizure of his person to argue for the suppression of the 

observation of the illegal aliens in plain view and the statements both the aliens and Cano 

provided during their seizure.

B. Fourth Amendment Challenge

Although Cano has established his standing to challenge the investigatory stop leading to 

his indictment for alien smuggling, the Government has also established by the preponderance of 

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the evidence that Agent Silva had reasonable suspicion, based on the totality of the 

circumstances, to stop Cano and investigate whether he was engaged in illegal activity. 

Applying the Brignoni-Ponce factors to the instant case, the evidence establishes that Agent 

Silva has over twenty years of experience working as a Border Patrol agent detecting the specific 

type of illegal activity at issue in this case. See Guerrero-Barajas, 240 F.3d at 432 (listing first 

factor as agent’s experience in detecting illegal activity). As to the second factor, the area in 

which Agent Silva stopped Cano was in close “proximity” to the “international border” with 

Mexico, so close in fact that many illegal aliens travel across the border by foot in this area. See 

id. The Fifth Circuit has articulated a benchmark of 50 miles or less when evaluating closeness

of a given location to an international border. See United States v. Inocencio, 40 F.3d 716, 722 

n.7 (5th Cir. 1994). The fact that an encounter with Border Patrol occurs within this benchmark 

has been referred to as a “paramount factor” in assessing reasonable suspicion. United States v. 

Soto, 649 F.3d 406, 409 (5th Cir. 2011) (internal quotation and citation omitted). Regarding the 

third and fifth factors, the area’s known characteristics for illegal activity and local traffic 

patterns, the undisputed testimony established that the area in which the stop occurred was a 

known “hot spot” for alien smuggling where there was minimal local traffic. See GuerreroBarajas, 240 F.3d at 432. 

The fourth factor, information regarding recent illegal activity in the area, contributed 

significantly to Agent Silva’s reasonable suspicion that the vehicle Cano was driving was 

engaged in illegal activity. Under certain circumstances, anonymous tips such as the one relayed 

over the Border Patrol radio system, can demonstrate “sufficient indicia of reliability to provide 

reasonable suspicion to make an investigatory stop.” Navarette v. California, 572 U.S. 393, 397 

(2014) (internal quotation and citation omitted). One of the factors in determining whether a tip 

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is reliable such that it can be factored into the reasonable suspicion calculus is whether it can be 

corroborated in some manner by independent police work. Id. at 398. For example, in Alabama 

v. White, the Supreme Court held that an anonymous tip that a woman would drive from a 

particular apartment building to a specific motel in a brown Plymouth station wagon with a 

broken tail light and would be transporting cocaine was sufficiently reliable to create reasonable 

suspicion of criminal activity, even without any additional factors, because it accurately 

predicted future behavior and demonstrated a special familiarity with the woman’s affairs. 496 

U.S. 325, 332 (1990). 

In assessing the reliability of anonymous tips to be on the lookout (“BOLO”) for specific 

criminal activity, the Fifth Circuit has directed courts to evaluate several factors, including: (1) 

the credibility and reliability of the informant; (2) the specificity of the information contained in 

the tip or BOLO report; (3) the ability of officers in the field to verify the information in the 

field; and (4) whether the tip deals with active or recent activity. United States v. Perkins, 352 

F.3d 198, 199 (5th Cir. 2003). Although Agent Silva did not provide any testimony regarding 

the credibility and reliability of the anonymous tip regarding possible alien smuggling, the tip 

was based on contemporaneous observation by a concerned citizen of someone loading four

possibly illegal aliens in a white, older Ford pickup truck at a known location where alien 

smugglers pick up aliens having recently crossed the border on foot. The tip in this case 

provided both a specific physical description of the truck and the direction it was traveling. 

Independent investigatory work by Agents Ramirez, Martinez, and Silva corroborated the 

description of the truck and found it traveling in the direction described by the person providing 

the anonymous tip. The tip in this case is distinguishable from those instances in which a tip 

encompasses only general allegations of illegal activity, lacks such specificity, and fails to 

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predict any future behavior that through corroboration by law enforcement confirms the tipster’s 

credibility. Cf. Florida v. J.L., 529 U.S. 266, 272–74 (2000) (holding that bare-bones tip that 

young black male in plaid shirt standing at a bus stop was carrying a gun was insufficient to 

supply reasonable suspicion in support of investigatory stop where tipster did not explain how he 

knew about the gun and there was no means to independently assess tipster’s credibility). 

The final factor that is significant to the assessment of reasonable suspicion is the 

number, appearance, and behavior of the occupants in the vehicle. Guerrero-Barajas, 240 F.3d 

at 433. Agent Silva testified that his suspicion of possible illegal activity increased significantly 

when he encountered the truck and saw only a driver in the cab, as opposed to the two 

individuals seen only minutes earlier by Agents Ramirez and Martinez, and the four individuals 

seen by the person who made the anonymous tip. Accordingly, Agent Silva believed that the

passengers in the vehicle had ducked and were presumably hiding after seeing Border Patrol 

vehicles on the roadway. The Fifth Circuit has recognized that an “affirmative indication of an 

attempt to hide,” as opposed to mere slouching in a seat or bearing a suspicious facial expression, 

is required for this factor to weigh in favor of the presence of reasonable suspicion. United 

States v. Zapata-Ibarra, 212 F.3d 877, 883 (5th Cir. 2000). Compare United States v. Soto, 649 

F.3d 406, 409–12 (5th Cir. 2011) (finding reasonable suspicion where, upon seeing agents, 

defendant looked surprised, ducked down, slumped back in his seat, and rolled up his tinted 

window) with United States v. Rangel-Portillo, 586 F.3d 376, 378–82 (5th Cir. 2009) (agent 

lacked reasonable suspicion to stop vehicle in an area known for drug smuggling only 500 yards 

from the border based solely on an observation that the occupants were “sweating pretty bad” 

and bore “stone-faced” expressions). 

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Viewing all of these facts under the totality of the circumstances, Agent Silva had 

reasonable suspicion to stop Cano to investigate the possibility that he was engaged in alien 

smuggling. His decision to stop Cano was based on specific and articulable facts and the rational 

inferences that can be drawn therefrom. See Guerrero-Barajas, 240 F.3d at 432. Because the 

Government has established reasonable suspicion by a preponderance of the evidence, the Court 

need not consider the Government’s alternative argument that, once the results of Agent Silva’s 

search of the license plate on Cano’s vehicle came through revealing that the license plate was 

not registered to the vehicle, Agent Silva would have had an independent basis to conduct the 

investigatory stop. 

V. Conclusion and Recommendation

Having considered Cano’s motion, the response and reply thereto, the Government’s 

supplemental briefing, the testimony, evidence, and argument presented at the hearing, and the 

governing law, the undersigned recommends that Defendant’s Motion to Suppress [#38] be 

DENIED. 

VI. Instructions for Service and Notice of Right to Object/Appeal

The United States District Clerk shall serve a copy of this report and recommendation on 

all parties by either (1) electronic transmittal to all parties represented by attorneys registered as 

a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified 

mail, return receipt requested. Written objections to this report and recommendation must be 

filed within fourteen (14) days after being served with a copy of same, unless this time period is 

modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The party shall file 

the objections with the Clerk of Court and serve the objections on all other parties. A party filing 

objections must specifically identify those findings, conclusions or recommendations to which 

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objections are being made and the basis for such objections; the district court need not consider 

frivolous, conclusive or general objections. A party’s failure to file written objections to the 

proposed findings, conclusions and recommendations contained in this report shall bar the party 

from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149–52 (1985); 

Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file 

timely written objections to the proposed findings, conclusions and recommendations contained 

in this report and recommendation shall bar the aggrieved party, except upon grounds of plain 

error, from attacking on appeal the un-objected-to proposed factual findings and legal 

conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 

1428–29 (5th Cir. 1996) (en banc).

SIGNED this 18th day of November, 2020.

ELIZABETH S. ("BETSY") CHESTNEY

UNITED STATES MAGISTRATE JUDGE

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