* 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that this opinion should not be published and is not precedent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.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

Nos. 97-11014 & 97-10787

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PHILIP HAMILTON SHARMAN; ELISEO PEREZ-CORTES,

Defendants-Appellants.

Appeal from the United States District Court 

for the Northern District of Texas

(2:97-CR-08-1; 2:97-CR-6-3)

July 30, 1998

Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

The linchpin for this consolidated appeal, regarding state

troopers’ vehicle-stops and resulting seizures of illegal aliens

and narcotics, is whether the troopers had probable cause to

believe that a traffic violation had occurred, consistent with

Whren v. United States, 517 U.S. 806 (1996). Concluding that they

did, we AFFIRM.

I.
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On 1 February 1997, a Texas state trooper was on traffic

patrol along Interstate 40, near Vega, Texas. The Trooper observed

a motor home begin to exit the interstate; then “jerk[]” back onto

it; and then cross the median to a frontage road. Having observed

a violation of Texas traffic laws, the Trooper stopped the vehicle.

The driver explained that he crossed to the frontage road

because he was out of gas. After talking separately with the

driver and passenger, and receiving conflicting accounts of their

travels, the Trooper radioed for a nearby United States Border

Patrol canine unit. Hearing this request, the driver confessed

that he was transporting 28 illegal aliens. The Trooper then

issued the driver a warning for illegally crossing the median, and

turned the matter over to the Border Patrol Agents.

Defendant Perez-Cortes was a passenger in the motor home, and

was identified as, and admitted to being, the individual

responsible for arranging the transportation of the illegal aliens.

He was charged with conspiracy to transport and transporting

illegal aliens, in violation of 18 U.S.C. § 371 and 8 U.S.C. §

1324(a)(1)(A)(ii). Following denial of his suppression motion,

Perez-Cortes entered a conditional guilty plea, and was sentenced,

inter alia, to 11 months imprisonment.

On the day the motor home was stopped, 1 February 1997,

another Texas state trooper, while on patrol of the same
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interstate, observed a vehicle run a stop sign on the frontage road

adjacent to the interstate. The Trooper stopped the vehicle.

When he approached the driver, Defendant Sharman, the Trooper

noticed that Sharman was fumbling with his wallet; and that his

hands were visibly shaking. After informing Sharman that he would

issue a warning citation for running the stop sign, the Trooper

asked for consent to search the vehicle. Sharman refused. 

A Border Patrol canine unit, that had arrived at the scene

shortly after the stop, searched the outside of the vehicle and

alerted immediately to the trunk area. At the request of the

Trooper, Sharman provided the keys to the trunk; it contained

approximately 100 pounds of marijuana.

Sharman was charged with possession with intent to distribute

marijuana, in violation of 21 U.S.C. § 841. Following denial of

his suppression motion, Sharman entered a conditional guilty plea,

and was sentenced, inter alia, to 37 months imprisonment.

At the time of each stop, the Border Patrol was conducting

“Operation Vega”, with cooperation from the Drug Enforcement

Administration and local law enforcement agencies. Two decoy signs

indicating immigration and narcotics checkpoints were placed along

Interstate 40, near an exit, for the purpose of determining if

vehicles were attempting to evade the phantom checkpoints.

The Texas Department of Public Safety was aware of the

operation, and attended a planning meeting for it. However, it
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declined to participate in the operation. Each Trooper testified

at the suppression hearing involving their respective stop that,

even if Operation Vega had not been conducted in the area, each

defendant would have been stopped. And, a Border Patrol Agent

testified that, during the operation, the Border Patrol was

assigned its own radio channel; that one Agent was assigned to

monitor the “intercity” radio channel for radio traffic from local

authorities; and that, when a Border Patrol canine unit is in an

area, local authorities are notified in the event they wish to use

it. 

In denying the suppression motions, the magistrate judge

concluded, inter alia, that the stops at issue were based on

traffic violations, and thus proper. The district court agreed.

II.

Needless to say, in reviewing the denial of the suppression

motions, “we review ‘the district court’s factual findings for

clear error and its ultimate conclusion as to the constitutionality

of the law enforcement action de novo’”. United States v.

Tompkins, 130 F.3d 117, 119-20 (5th Cir. 1997), cert. denied, 118

S. Ct. 1335 (1998) (quoting United States v. Jenkins, 46 F.3d 447,

451 (5th Cir. 1995)). 

Whren notwithstanding, Sharman and Perez-Cortes contend that

the district court erred in denying their suppression motions

because they were unreasonably seized during Operation Vega,
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maintaining in support that the stops were based solely upon their

decisions to exit the interstate and upon their out-of-state

license plates. In this regard, they assert that the operation was

illegal, in that it impermissibly used Texas state troopers to

effect investigative stops, which the Border Patrol was legally

precluded from doing. They claim that, as a result, the evidence

seized and statements given should be suppressed as fruit of the

poisonous tree. 

Along this line, they maintain that “the Border Patrol

articulated no facts whatsoever that would support its decision to

stop” them; and that, as noted, two impermissible criteria were

used to investigate motorists: exiting the interstate, and out-ofstate license plates. (Emphasis added.) Also, both request that,

in the light of the district court’s application of Whren, we

address how United States v. Brignoni-Ponce, 422 U.S. 873 (1975),

relating to roving Border Patrol stops, retains vitality.

In support of their theory that the Border Patrol and Texas

state troopers were working together on Operation Vega, Sharman and

Perez-Cortes state that one of the Troopers testified at the

suppression hearing that she had immediate radio contact with the

Border Patrol; that Border Patrol agents testified that they were

working with state officials; and that the Border Patrol

characterized Operation Vega as a roving patrol.
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We need not decide whether Operation Vega was an illegal

roving patrol, or whether the Texas state troopers were acting as

agents for the Border Patrol. Instead, our starting and ending

point is well established: “As a general matter, the decision to

stop an automobile is reasonable where the police have probable

cause to believe that a traffic violation has occurred”. Whren,

517 U.S. at 810. 

It is undisputed that each stop followed a traffic violation:

the first, crossing the median; the second, running a stop sign.

It is also undisputed that Texas state troopers, not the Border

Patrol, made both stops. In short, the Troopers had probable cause

to believe that traffic violations had occurred; therefore, the

stops were reasonable under the Fourth Amendment, with the

resulting evidence seized and statements taken admissible. Id. at

819. No more need be said.

III.

For the foregoing reasons, the judgments are

AFFIRMED.